Marriage Equality Opponents Acknowledge Inevitability

As the inevitability of marriage equality becomes more obvious to everyone, even the heterosexual supremacists who will say anything to attempt to  stop the practice are starting to shift their arguments from the desirability of marriage equality to the consequences of marriage equality. 

From the killer ad in the debate during the Proposition 8 which claimed that if the constitutional amendment did not pass then kindergarteners would be forced to learn about same-sex marriage to the hilarious National Organization for Marriage ad which claimed that there was a gathering storm of threats to religious liberty in the form of marriage equality, opponents to same-sex marriage are trying to shift discussion from whether same-sex couples should get marriage licences from the state to how marriage equality will affect everyone's lives. 

In Sunday's Los Angeles Times Washington and Lee University Law Professor Robin Wilson has an op-ed in this vein, entitled "The flip-side of same-sex marriage."

So what should states do to respond to these clashes between same-sex relationships and religious liberty?

What they should not do is what New Hampshire's Senate did last week: pay lip-service to religious freedom while enacting meaningless protections. New Hampshire's bill provides that "members of the clergy ... shall not be obligated ... to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion." But this is a hollow guarantee: The 1st Amendment already provides such protection.

Last month, Connecticut and Vermont became the first states to pass conscience protection for religious dissenters in their same-sex marriage laws. Both states provide that religious groups "shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request ... is related to the solemnization of a marriage or celebration of a marriage." Both also bar civil suits by people denied such wedding-related services.

Connecticut went even further. In that state, a "religious organization" providing adoption services may continue to place children only with heterosexual married couples as long as it gets no government money. Thus, in Connecticut, unlike in Massachusetts, Catholic Charities will not have to close its doors or face litigation threats.

As important as these exemptions for organizations are, states still weighing same-sex marriage should do better. Wedding advisors, photographers, bakers, caterers and other service providers who prefer to step aside from same-sex ceremonies for religious reasons also need explicit protection.

Some have argued that gay-marriage laws do not need such guarantees because they don't require religious objectors to do any particular thing. But new laws are interpreted in light of existing statutes, and Vermont and Connecticut -- as well as all six states still considering same-sex marriage -- have laws on the books prohibiting discrimination on the basis of sexual orientation.

Because of those laws, many people could have to choose between conscience and livelihood. In Massachusetts, individuals violating the non-discrimination statute can be fined up to $50,000. In Connecticut, business owners can be sentenced to 30 days in jail.

Conscience protections are a thoroughly American idea. Since Colonial times, legislatures have exempted religious minorities from laws inconsistent with their faith. Such exemptions allow Americans with radically different views on moral questions to live in peace and equality in the same society.

Connecticut and Vermont have gone part of the way toward recognizing that the rights of same-sex couples should not come at the expense of the religious people who believe that marriage means a husband and a wife.

Now, New York, Illinois, New Hampshire, Maine, Rhode Island and the District of Columbia should take the time to get same-sex marriage right.

I find it fascinating that the debate over same-sex marriage is now shifting from whether it will happen or should happen but to a debate over what the consequences will be when it does happen.

This is progress, folks!

I'm actully reasonably favorably inclined to agree to strong religious exemptions from non-discrimination provisions as a result of governmental recognition of same-sex marriage if 1) such exemptions are public record and only apply to organizations which receive no federal or state funds (i.e. I want to know who are the caterers, florists, etc who want to say "we don't serve your kind!") and 2) they agree to work to repeal the current federal and state bans on state recognition of same-sex relationships (i.e. DOMA and the 30 states which have banned same-sex marriage by voter intiative) and 3) they do not oppose future legislation to legalize same-sex marriage if it contains these agreed upon religious exemptions.

Additionally, I don't quite see why someone's religious beliefs allow them to discriminate on the basis of any characteristic. Were there religious exemptions for discrimination on the basis of race in the 1960s?

It's not clear to me why current public accomodations jurisprudence can't be used to settle this question. Generally, if you offer services to the public, you don't get to choose a protected class to discriminate against in the provision of this public service. However, I am willing to offer the exemption under the agreement of the three conditions I stated earlier.