NeJaime: "Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination"

Douglas NeJaime (Loyola LA) has posted "Marriage Inequality:  Religious Exemptions and the Production of Sexual Orientation Discrimination" (forthcoming Cal. L. Rev.) on SSRN.  Here is the abstract:

As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a “marriage conscience protection,” containing a series of religious exemptions, in marriage legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriageobscures the root of the conflict. At stake is the relational enactment of sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Same-sex marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality. By exposing the connections between same-sex relationships and lesbian and gay identity, this Article argues for an antidiscrimination regime that includes same-sex relationships more comprehensively; in doing so, it resists the use of marriage as antidiscrimination, both for same-sex couples and religious objectors. Yet even as the “marriage conscience protection” proposed by religious liberty scholars misapprehends the basis of the underlying conflict, its sweeping language threatens to reach into the antidiscrimination domain and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples throughout the course of the couples’ married lives in situations far removed from marriage itself, the “marriage conscience protection” may have unintended consequences that would threaten substantial progress made in antidiscrimination law. Worse yet, using the term “marriage conscience protection” to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to address.

AC