Saturday, November 14, 2009
As an academic associate dean, I can handle about one substantive scholarship/advocacy area at a time, and right now it's religious liberty and gay-marriage recognition. This past Thursday saw a fine conference at Northwestern Law School on the topic, and I gave the "keynote" talk, on "What Same-Sex Marriage and Religious-Liberty Claims Have in Common."
I personally have come to find the case for legislative recognition of same-sex marriage to be strong (a position that should in no way be imputed to the co-authors of our letters advocating strong religious exemptions). But my conclusion on the underlying question in no way lessens my commitment to strong accommodations for religious objectors, both organizations and individuals. Indeed, the gravamen of my NU talk was that the very arguments that support recognition of SSM also strongly support accommodation of religious objectors unless they are in a position substantially to block access to marriage. I'll post the full piece when it's written, but here's a summary:
Both same-sex couples and religious objectors argue that they should be able, free from state interference or discouragement, to engage in conduct that is fundamental, in a pervasive way, to their personal identity. . . . Both gay-rights and religious-liberty proponents have had to confront the counterargument that their interests involve only conduct, which the state can presumptively regulate [as opposed to, respectively, orientation or belief]. Both set of proponents respond that when conduct is fundamental to personal identity, the state should weigh that heavily and not burden, discourage, or disfavor the conduct without strong, concrete reasons for doing so. . . . If the centrality of conduct to personal identity supports recognizing same-sex marriage, it also supports broad recognition of rights of religious conscience.
Related to this first commonality is a second: that both same-sex marriage and religious claimants seek to live out their identities in ways that are public in the sense of socially apparent and socially acknowledged. . . . When same-sex couples are told they will receive no more than toleration of their private behavior, they are asked to keep their identities in the closet. But when traditional religious believers are told to keep their beliefs to themselves, or to leave them behind upon entering the world of social services or the commercial marketplace, they too are told to keep their identities in the closet.
This combination of arguments makes a strong case for recognizing same-sex marriage but also recognizing significant religious accommodations [unless] the objector's refusal to serve would impose substantial hardship on the same-sex couple seeking services. . . . This approach presumptively allows both sides to live out their identity without state interference or discouragement. . . . Denials of service do affect gay couples by causing them disturbance and offense, [but] the harm to the objector from legal sanctions is far greater. In most cases, the offended couple can go to the next entry in the phone book or the Google result. The individual or organization held liable for discrimination, by contrast, must either violate the tenets of the faith or exit the service area or livelihood in which she/it has invested time, effort, and money. The state simply does not give the religious objector's identity equal weight if it overrides the living out of that identity on the basis of symbolic harm or offense.