Before our eyes, America’s robust tradition of religious free exercise is opening the door to same-sex marriage. Prior to this year, the “defense of marriage” forces based their case on purely secular claims about the harm that SSM would do to children, families, and civilization as we have come to know it. Empirical data was cited in an effort to show that families fared badly in countries that permitted it. There was also the slippery slope argument that SSM would inevitably lead to polygamy, bestiality (remember Rick Santorum’s “man on dog”?), and maybe necrophilia. The case was weak, but it avoided the pitfall of religious special pleading: We must keep traditional marriage because the Bible tells us so.
But now that SSM has become the law of the land in a growing number of states, its opponents (as Jacqui Salmon wrote in WaPo last month and Gilgoff noted yesterday) have begun portraying it as a threat to their religious liberties. And while many of those who support SSM don’t see it, some prominent First Amendment lawyers (including SSM supporters) are sufficiently concerned that they have been writing letters to governors and legislators urging that religious liberty protections be written into SSM bills. Call them SSM conscience clauses. And sure enough, in state after state, they’re being written in.
Yesterday, the New Hampshire state senate’s judiciary committee did so,
in deference to gubernatorial wishes, and the revised bill is expected to go through today. Meanwhile, Maine’s secretary of state has finalized
the language of the referendum that state’s voters will have before
them should opponents come up with enough signatures to make a
referendum necessary, said language making reference to the religious
exemption the law provides.
Update: Looks like the NH bill hit a bump in the road–stay tuned for renegotiation.
There will doubtless be ongoing legal skirmishes over the extent to
which individuals and organizations can or should be exempted from
having to involve themselves in one or another aspect of same-sex
marriage activities. Some conservative law professors (evangelical and
Catholic), for example, would permit even a government official to
decline to solemnize same-sex marriages on grounds of conscience,
provided that another official could be found to do so.
How much should SSM advocates worry about such exemptions? Michigan law professor Douglas Laycock, a SSM supporter as well as one of the country’s foremost religious liberty supporters, thinks not much. As he put it in a letter to Maine’s governor earlier this month:
is far better to respect the liberty of both sides and let same-sex marriage be
implemented with a minimum of confrontation.
Put religious exemptions in the bill, and at a stroke, you take away one
of the opponents’ strongest arguments. Let
the people of Maine see happy, loving, same-sex marriages in their midst; let
them see (this cannot be helped) that some of those marriages fail, just as
many opposite-sex marriages fail; let them see that these same-sex marriages,
good and bad, have no effect on opposite-sex marriages. Let the market respond to the obvious
economic incentives; same-sex couples will pay good money just like
opposite-sex couples. Let same-sex
marriage become familiar to the people, and do these things without oppressing
religious dissenters in the process.
Same-sex marriage will be backed by law, backed by the state, and backed
by a large and growing number of private institutions. Much of the dissent will gradually fade away,
and nearly all the rest will go silent, succumbing to the live-and-let-live
traditions of the American people. The
number of people who assert their right to conscientious objection will be
small in the beginning, and it will gradually decline to insignificance if
deprived of the chance to rally around a series of martyrs.
for religious conscientious objectors will rarely burden same-sex couples. Few same-sex couples in Maine will have to go far to find merchants,
professionals, counseling agencies, or any other desired service providers who
will cheerfully meet their needs and wants.
And same-sex couples will generally be far happier working with a
provider who contentedly desires to serve them than with one who believes them
to be engaged in mortal sin, and grudgingly serves them only because of the
coercive power of the law. Religious
exemptions could also be drafted to exclude the rare cases where these
suppositions are not true, such as a same-sex couple in a rural area that has
reasonably convenient access to only one provider of some secular service. Such cases are no reason to withhold
religious exemptions in the more urban areas where most of the people – and
most of the same-sex couples – actually live.
This seems about right to me. The larger point is that shifting the marriage debate onto the field of religious liberty rights makes this a rights issue all the way through. Gays and lesbians get the right to marry. Religious conservatives get the right not to participate in same-sex marriages. In his report on disarray among the “defense of marriage” folks in New York, the NYT’s Jeremy Peters finds Archbishop Dolan keeping the hem of his garment well clear of the marriage debate. The word on the street is that the Orthodox rabbis won’t intervene either, provide they get their religious protections. Onward marches the sweet land of liberty.