Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, February 8, 2012

More on Same-Sex Marriage and Religious Liberty in Washington State

Rick and I keep posting letters that our group of law professors has been writing, arguing to various state legislatures considering the recognition of same-sex marriage that they should also enact meaningful religious-liberty protections.  It's not that we think readers want to see the details of each and every state's laws; we' re just keeping an archive of these letters.  Here's the page compiling them all (it's also in the list of links at the bottom left of the blog).  For some poor poli sci grad student slaving away on a dissertation in 2052....

So here is the latest, a followup to Washington legislators, who have expanded their proposed religious-liberty protection but left the protections incomplete and, frankly, wildly inconsistent between different sections.


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Prof. Berg,

Your letters, as I understand them, ask the Washington legislature to allow Catholic non-profits to refuse to "recognize" same-sex marriages. If a Catholic hospital may refuse to "recognize" a SSM, could that hospital refuse to recognize the right of a spouse in a SSM to visit a sick/injured spouse or child? To make medical decisions for a child or an incapacitated spouse? Would such non-recognition rights extend to individual Catholics in non-religious institutions?

Could a Catholic hospital (or doctor) similarly refuse to recognize any patient's heterosexual but non-canonically-valid marriage, such as a divorced and remarried couple? (Hat tip to David Nickol)

And, as "religious freedom" has to protect opposing religious viewpoints to be plausible as a neutral ideal in a pluralistic society, what meaningful protections for religious freedom do you think should be included in legislation that BANS same-sex marriage?

Posted by: william brennan | Feb 8, 2012 9:54:22 AM

William Brennan, there is no theology that condones the engaging in or affirmation of same-sex sexual acts so one cannot claim a religious reason for condoning and affirming same-sex sexual conduct.

Posted by: N.D. | Feb 8, 2012 10:52:49 AM

N.D., You are entitled to your opinion as to correctness of your theology. However, putting it in terms you might recognize, it is a serious offense against the humanity and dignity of those with whom you disagree to deny their existence.


Posted by: william brennan | Feb 8, 2012 11:13:08 AM

If a Court erroneously supports the claim that two men or two women can live in relationship as husband and wife, mandating that this erroneous claim be recognized is in direct conflict with Religious Liberty, and is thus unconstitutional. Thank you to the Law professors who recognize that this error will beget more error, and have made a sincere effort to protect our Religious Liberty.

Posted by: N.D. | Feb 8, 2012 11:19:10 AM

Brennan: On your last question I don't know what religious-liberty protections you're talking about. If the suggestion is that a pro-same-sex-marriage clergy member and same-sex couple can have a ceremony and call it a marriage ceremony, that's obviously true as a matter of free speech and free exercise, unless it's some part of a fraud to give it official civil status. I suppose a traditional-marriage amendment could make that clear, but it seems as redundant as declaring that anti-same-sex-marriage clergy will not be forced to perform such weddings (which our group has always called redundant). If, OTOH, it means the clergy and couple can declare the same-sex marriage official in civil terms, we don't recognize that right as a matter of free exercise law, any more than we recognize the right of ant-same-sex-marriage persons or organziations to make a same-sex marriage invalid in civil terms. That question is determined by the society, not by opt outs.

The hospital question is a fair one. I'll give thoughts on it a little later: the demands of the academic day!

Posted by: Tom Berg | Feb 8, 2012 11:36:10 AM

The Catholic position is that there is no such thing as "same sex marriage." I don't see where compromising that is possible.

Posted by: Fr. J | Feb 8, 2012 12:33:58 PM

Tom Berg reasonably questions what I might mean by raising the possibility of religious-liberty protections in anti-SSM legislation.

I'll admit I don't have any good ideas for what religious liberty protections in anti-SSM law would look like, beyond, as you say, 1st Am. rights (I was hoping you were more creative than I!) I have an intuition, however, that religious liberty claims become much stronger when we can imagine reciprocal protections for opposing views, but perhaps reciprocity is sometimes (frequently?) not possible.

Assume, however, that as a practical matter, religious liberty cannot be meaningfully protected in an anti-SSM regime. I would argue that religious liberty can be meaningfully protected (albeit imperfectly) in a pro-SSM regime (and your letters would be pointless if this were not true). So, don't these points suggest that the pro-SSM regime is net more respectful of religious liberty?

Posted by: william brennan | Feb 8, 2012 12:37:38 PM

How would you have our civil society treat people who are legally divorced and remarried in a way that makes their remarriages canonically invalid -- as married or not?

Posted by: william brennan | Feb 8, 2012 12:44:45 PM

Professor Berg, why wouldn't a Marriage amendment that makes it clear that in order to be married, a couple must be able to exist in relationship as husband and wife, also make it clear that any couple or group of persons that cannot exist in relationship as husband and wife, cannot be recognized as being married in a Civil court without engaging in a false pretense?

Posted by: N.D. | Feb 8, 2012 12:50:03 PM

Is anyone claiming that in the various states, as well as other countries, that permit same-sex marriage, the same-sex couples who go through a legal marriage ceremony are not *legally married*?

Posted by: David Nickol | Feb 8, 2012 5:33:31 PM


So on the "acommodations for pro-SSM people" question, I'll wait until someone can identify a legal conflict that they face. Rick and I and others acted because pro-traditional-marriage adoption agencies were being forced to drop their services, photographers were being fined, etc. Although I don't speak for everyone in our group of scholars, I personally think that SSM with strong religious exemptions does strike a good balance between the interests, both of which do involve conscience--but only if the exemptions are strong.


I'm not sure what you're asking, but let me try. A "traditional marriage amendment" might say, or at least imply, exactly what you state. My point was that if a state declares same-sex marriages officially valid in civil terms, then objectors have no legal right to declare them officially invalid. They can (and should be able to) avoid directly facilitating them, but they can't make them legally invalid. Similarly, pro-SSM individuals can perform or conduct SSM ceremonies in a state that only legally recognizes traditional marriage, but but they can't make the same-sex marriages legally valid.

Posted by: Tom Berg | Feb 8, 2012 6:38:42 PM

Tom Berg,

I'm glad to hear we're not so far apart on the general desirability of SSM with appropriate protections, though I expect we may disagree about the scope of appropriate protections. I look forward to your thoughts on the hospital issue.

Posted by: william brennan | Feb 8, 2012 8:38:31 PM

Professor Berg, since it is true that two persons of the same sex cannot live in relationship as husband and wife, in civil or religious terms, then any claim that same-sex marriage can, does or did exist is based on a false pretense and is thus not valid.

Posted by: N.D. | Feb 8, 2012 9:59:11 PM

As I said before, the question about partner visitation and decisionmaking is a fair one. Couples can use living wills and powers of attorney to designate these rights, and I cannot believe any religious hospital would disregard such an instrument. But I personally acknowledge that requiring that extra step involves a concrete hardship. Our group's proposals have some provisions for withholding accommodation where there is concrete hardship, and this is something worth looking at more. We've been willing to adjust our proposals to take account of serious interests on both sides. But are you--are most supporters of same-sex marriage--willing to make adjustments to accommodate serious claims of conscience--people or organizations that will be forced out of providing services, when same-sex couples could easily get the services from many other providers? You can ask all the questions you want about how far accommodation goes, but they shouldn't be used to distract from the justice of accommodation in many cases. I hear a lot of rigidity and misdirection on this from the pro-SSM side of the debate.

Posted by: Tom Berg | Feb 9, 2012 1:12:34 PM

I'll think more about a response to your question, but in the meantime, you mentioned living wills and powers of attorney and said "I cannot believe any religious hospital would disregard such an instrument". First, I don't think powers of attorney would be effective to ensure the right to visit and supervise healthcare for kids in a SSM. Second, I cannot believe that any hospital at all would be so mean, but it happens.




Posted by: william brennan | Feb 9, 2012 4:48:06 PM