Thursday, June 23, 2011
In a recent column here, Susan Thislethwaite (suggests that the push to provide religious exemptions in same-sex marriage legislation may simply be attempts to bog the legislation down. I do not doubt that some of that is going on. But it is possible to support same sex marriage and want to support freedom of conscience for those who oppose it, and many of the proponents of the exemptions that I know fall in that camp. The easy case is that ministers opposed to same sex marriage should not have to perform them.
But Thislethwaite focuses on a harder case: Should caterers who object to same sex marriage be exempt from providing food for them? She says no. Doing so would simply “cater to bigotry.” I do not agree. To be clear, I would not permit caterers or any other business to discriminate against gays or lesbians generally even if they claimed religious objections. In my view, businesses should be open to the public and permitting such discrimination on religious grounds would too frequently ratify prejudice. Setting up an administrative apparatus to sort through sincere religious claims and mere prejudice is a game not worth the candle.
But there is a difference between general discrimination of this kind and declining to participate in an act you think is immoral. In this kind of case, it is likely that the religious claim is sincere (and misguided). Moreover, if challenged, I think the caterer should have to meet a sincerity test just as conscientious objectors were required to satisfy. Does this mean that a caterer should be permitted on religious grounds to refuse participation in an interracial wedding? I think so. But the suspicion of naked prejudice is greater here, and meeting a test of religious sincerity would be more difficult.
cross-posted at religiousleftlaw.com