May 02, 2009
Arguments for Religious Liberty Under Same-Sex Marriage: Latest Version
Four of us legal academics (Garnett, Wilson, Esbeck, and Berg) who have been pressing legislators for religious liberty protections in same-sex marriage laws have a slightly revised version of our arguments in this letter. We sent it to the governor and legislative leaders in Maine, where one house has approved SSM implementation and the other is set to vote next week. Meanwhile, bills recognizing SSM in New Hampshire, with a very narrow religious exemption, have passed both houses and are in a conference committee; and the issue is coming to a head in other places as well, including Iowa and the District of Columbia.
In the latest letter we clarify our proposal for exempting organizations and individuals who object to facilitating a same-sex marriage, to provide that the exemption may be overridden in cases where the marrying couple cannot obtain similar services from another source and the inability to obtain the services causes "substantial hardship." In some sparsely populated rural areas, one can imagine all of the service providers (caterers, photgraphers etc.) in a large geographic area refusing to provide services to a same-sex couple marrying. We think this will happen infrequently, and we emphasize that the hardship the couple faces must be substantial, "not mere inconvenience or symbolic harm." We also say that clerks or other government officials cannot refuse to issue a marriage license, and thus block the marriage, "if another government official is not available and willing to do so." Speaking for myself, I think that these clarifications balance the conflicting interests properly and also increase the chances that an exemption extending beyond churches to religious non-profits and commercial service providers will pass.
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