April 13, 2009
Religious liberty and gay equality: a proposed compromise
The following commentary is by Professor Ira "Chip" Lupu of George Washington University Law School. It is adapted from a recent posting by Professor Lupu to an e-mail discussion list on religion-law issues.
In recent years, religious conservatives have been using religious-liberty arguments as a sword (a club might be a better word) to buttress political campaigns against same-sex marriage. An article in the Harvard Journal of Law and Public Policy by Roger Severino of the Becket Fund for Religious Liberty fits this model. The article warned, among other things, that “[t]he movement for gay marriage is on a collision course with religious liberty” and would produce “both government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage.” These sorts of arguments have been intended to make their way into the political debate about same-sex marriage in California and elsewhere, and they have had some effect.
Now that the winds have started blowing the other way (backlash to Prop 8, Iowa court ruling, Vermont legislation, legal results in cases involving commercial enterprises and public accommodations), religious conservatives apparently want to use religious liberty as a shield. With respect to legitimate claims of right (sermons by pastors, faith community selectivity about who may get the sacrament of marriage), virtually no one wants to break that shield. But religious conservatives also want discretionary political accommodations, such as exemptions from laws governing adoption agencies, employment practices by government contractors, and conditions of access to publicly subsidized benefits.
My question is this: are the proponents of these exemptions really interested in "live and let live"? Or is their position really "let us live and we'll keep fighting against the right of others to live in equal dignity?” If it is the latter, then this is one-way toleration, and it deserves no respect. If it is the former, then we need to see some evidence of good faith.
So how about this compromise as a start: in exchange for carefully crafted exemptions for religious organizations and communities (not landlords and doctors and photographers) to ensure that equal-marriage and anti-discrimination measures do not impair legitimate claims of religious liberty, those communities promise to support repeal of the federal “Defense of Marriage Act,” repeal of state DOMA's, and non-interference by Congress with same-sex marriage policy in DC, and they promise the end of opposition to the extension of same-sex marriage (i.e., no more Prop 8's).
Is there a political deal that can be struck here? Or is the real agenda of religious conservatives simply a one-way demand for respect?
April 13, 2009 | Permalink
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While I would like to believe otherwise, I'm afraid you have posed a purely rhetorical question.
Posted by: Sheila Kennedy | Apr 13, 2009 12:15:45 PM