Wednesday, August 28, 2013
The other day, this AP story by Rachel Zoll provided a pretty good overview of the ongoing debate about religious-freedom-related exemptions and SSM laws. As MOJ readers know, Tom Berg and I have participated in the effort, described in the piece, to get such exemptions included in SSM legislation. (Here is an example of the letters we have sent to legislators.) As the article discusses, the effort has been criticized not only by those who regard it as, in effect, special pleading for bigots, but also by those -- like Matthew Franck, of the Witherspoon Institute -- who contend that it constitutes a premature surrender, that it has not yielded any good results, and that it has made it easier for SSM legislation to pass in states where it otherwise would not have.
As I wrote in Commonweal a few weeks ago ("Worth Worrying About?", here):
In recent years, a group of law professors (including me) with differing views on the policy merits of changing the legal definition of marriage has presented to legislators in various states a detailed analysis of these and other live and potential conflicts, and urged them to include in any new legislation not merely superfluous affirmations of churches’ authority over their own sacraments but also “meaningful religious freedom protections,” for both individuals and institutions, in both the private sphere of worship and belief and the public square of civil society. The group’s letters, in other words, take seriously the acknowledgment by President Obama and other prominent same-sex-marriage supporters that there are fair-minded and decent people on both sides of the argument and remind lawmakers that both prudence and principle counsel protection and respect for the consciences of religious believers and the distinctiveness of religious institutions.
These interventions have had nontrivial but admittedly modest effect. They have been criticized by some same-sex marriage advocates for privileging the irrational and atavistic objections of some over the full equality of others and, at the same time, they have been given low marks by some proponents of traditional marriage for offering naïve and premature concessions to an aggressive and uncompromising political and cultural campaign. Nevertheless, I continue to believe that it is important and worthwhile for those who see and embrace the connection between human dignity and the human right to religious freedom to do what they can—even if it does not seem like very much—to protect that right in and through law. Such work is not inconsistent with, and need not be counter-productive to, equally important efforts to, charitably and prudently, align the positive law with the truth about the person and enlist it in the service of the common good - See more at: http://www.commonwealmagazine.org/worth-worrying-about#sthash.wIKhlR38.dpuf