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Essays On Liberty Civil And Religious Laws

A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage

126 PagesPosted: 6 Sep 2015Last revised: 28 Apr 2016

Date Written: April 21, 2016


In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples.

This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing positions. The concerns of religious traditionalists go far beyond a fear that they will be compelled to do particular acts against their con-sciences. Instead, they believe that the advent of marriage equality will severely impede their ability to live out their faith in a wide range of areas, from family life and economic activity to political participation and religious practice. For this reason, traditionalists regard the legal recognition of same-sex marriage as a fundamental assault on their identity and way of life. But this view brings them into direct conflict with the aspirations of lesbian, gay, bisexual, and transgender people to live out their own values and to fully participate in society. At the deepest level, the dispute over religious liberty and civil rights involves a clash between the identities of these two groups.

The crucial problem is how this conflict can be resolved in a way that enables both groups to live together within a liberal democratic society. After examining several other approaches, the Article argues that conflicts of this sort can be overcome only through mutual recognition — that is, only when the members of opposing groups recognize and treat one another as full and equal persons and members of the community, who possess all the legal and constitutional rights that inhere in this status. On this view, one has no right to infringe the rights of other persons simply because one believes (whether on religious or other grounds) that they are not entitled to enjoy those rights or the basic human goods that those rights serve to promote. This view has its roots in the Lockean natural rights theory that laid the foundations of the American constitutional order.

The Article then offers a general account of the rights that individuals have, and situates religious liberty and civil equality within that framework. Finally, the Article applies this approach to the cur-rent controversy. It argues that, while the principle of religious liberty protects the right to believe that same-sex relationships are immoral and sinful, that principle does not give religious traditionalists a right to act on that belief in a way that is incompatible with the basic civil rights of same-sex couples, including their rights to marry and to receive equal treatment in the commercial sphere. A legislature may choose to grant wedding-service providers a religious exemption from civil rights laws as a matter of prudence, charity, or compromise. As a matter of principle, however, most providers are not entitled to demand such an exemption. But some providers are so closely involved with the wedding ceremony or the couple that they should not be compelled to take part.

Keywords: religious liberty, religious freedom, same-sex marriage, recognition, Locke, natural rights, Obergefell, identity, sodomy, conscience, sexual orientation, First Amendment, culture wars, dignity, rights, marriage, equality, civil rights

JEL Classification: K19

Suggested Citation:Suggested Citation

Heyman, Steven J., A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage (April 21, 2016). 14 First Amendment Law Review 1 (2015). Available at SSRN: https://ssrn.com/abstract=2656292

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The R.F.R.A.s proposed in Indiana and Arkansas were more expansive: They would have allowed people and corporations to bring religious-liberty claims against one another, as well as the government. But that change didn’t really explain why Indiana and Arkansas found themselves on the wrong side of the culture wars; the context did. The new religious-liberty bills appeared to be shielding businesses that didn’t want to serve gay couples, who had recently won the right to marry in Indiana. ‘‘If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,’’ Crystal O’Connor, an owner of Memories Pizza in Walkerton, Ind., told a local news station. This time, the boycott materialized, and Memories Pizza temporarily shut its doors (supporters also raised more than $800,000 on the owners’ behalf). When major companies threatened to pull up stakes in Indiana and Arkansas, the states retreated, altering their religious-freedom bills.

Following the Supreme Court’s marriage ruling, religious objections to serving gay couples are mounting in more states. Invoking religious liberty in this way presents ‘‘special concerns’’ by prolonging social conflict, according to a recent article by two law professors, Reva B. Siegel of Yale and Douglas NeJaime now of U.C.L.A. School of Law. They point to the aftermath of Roe v. Wade: After the Supreme Court ruling legalized abortion throughout the country, Congress and state legislatures ensured that a doctor, nurse or other health care professional could refuse to participate in providing an abortion as a matter of conscience. Over the decades, these ‘‘conscience clauses’’ expanded in some states to include counseling, referral and pharmaceutical services, allowing people who fill prescriptions, for example, to exert a form of social control in the name of their own religious freedom.

The muscle of the conservative Christian movement, Siegel and NeJaime argue, enhances its ‘‘power to demean.’’ Women who have been refused abortion services report feeling judged and mortified. Gay couples turned away by wedding vendors say the same. ‘‘The phrase ‘religious liberty’ has become an overused talisman,’’ the Indiana University law professor Steve Sanders told me. ‘‘Most of the invocations lately have nothing to do with actual infringements of free exercise. They’re about political and cultural dissent from gay rights.’’

All of this is making longtime proponents of religious liberty nervous. Douglas Laycock, a law professor at the University of Virginia, has helped write state religious freedom bills and supported the ones that foundered in Indiana and Arkansas. But in an article last year, he issued a warning to evangelical leaders. ‘‘It is a risky step to interfere with the most intimate details of other people’s lives while loudly claiming liberty for yourself,’’ Laycock wrote. ‘‘If you stand in the way of a revolution and lose, there will be consequences.’’

Refusing to serve customers has an ugly history. A half-century ago, the civil rights movement held lunch-counter sit-ins to protest Jim Crow. No one succeeded then in claiming a God-given right to refuse to serve black customers. Throughout the South, businesses open to the public became open to all. Today, in the name of religious liberty, there is robust Southern opposition to same-sex marriage. But supporters say the analogy to the exclusions of Jim Crow is inapt, because racial segregation was never central to Christian teaching the way traditional marriage has been. They also correctly point out that strong national laws protect against discrimination on the basis of race, but not against discrimination on the basis of sexual orientation. In many states, in the South and elsewhere, a business or a landlord doesn’t need a special faith-based reason for turning away a gay client or tenant. They’re simply free to do so.

Given the speed with which public support for same-sex marriage is growing, gay people may win other rights against discrimination. But what about private religious schools and social-service organizations? ‘‘Hard questions’’ will arise, Chief Justice John Roberts predicted in his dissent from the same-sex marriage ruling, when, ‘‘for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex couples.’’

In the Senate and the House of Representatives, dozens of Republicans quickly signed on to a bill that would protect the tax-exempt status of a religious organization in such a situation and prevent any government action against a business that refused to serve a gay couple. On both sides of this fight, tolerance no longer seems to be the word of the day. ‘‘The religious resisters say, ‘It doesn’t matter if you can have the wedding you want, because you shouldn’t be getting married anyway,’ ’’ Laycock said over the phone last week. ‘‘The gay rights people answer, ‘It doesn’t matter if you violate your conscience, because you’re just talking to your imaginary friend.’ ’’ When basic values and rights collide, usually somebody wins and somebody loses. It becomes difficult to find mutual compassion, even if that would be the godly thing to do.

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Correction: July 26, 2015

An article on July 12 about religion and American law misidentified the academic affiliation of Douglas NeJaime, who was an author of a paper on religion and law. He is a professor at the School of Law at the University of California, Los Angeles, not the University of California, Irvine, where he taught at the time the paper was written.

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