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Thursday, November 07, 2013

An exchange among law-and-religion scholars about exemptions and marriage

It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally).  This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage. 

A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."

Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response  at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue.  Both posts, in addition, contain links to longer letters that were submitted to legislatures.  The response concludes with this:

 Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples."  To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue).  We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other.  We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws.  Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives.  Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people.  But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.

I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.

Posted by Rick Garnett on November 7, 2013 at 03:51 PM in Religion, Rick Garnett | Permalink

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Proponents of the "live and let live" approach seeking religious exemptions have never adequately explained why such exemptions should not also be extended to people who have religious beliefs against inter racial marriage or inter-faith marriages for that matter. Thankfully-- without doubt-- the number of people who would claim a religious objection to interracial marriage has decreased significantly over the past 50 years, but isn't that decrease in part due to changes in the law?

Posted by: Brian | Nov 7, 2013 5:45:25 PM

I was going to make a comment similar to Brian's. If the point of religious exceptions in this field has to do with the importance of religious liberty, rather than something special about sexual orientation, then presumably it follows that there are parallel religious liberty claims (not being made actively today by very many people) regarding interracial marriage.

So this raises several questions: should there be a statutory accommodation even today for those few religious groups or individuals who sincerely object to interracial marriage on religious grounds? If not, then should there have been one, say 40 years ago, when sincere religious objections to interracial marriage were being voiced?

And finally, what do our answers to these questions say about the future implications of religious exceptions to same-sex marriage that we enshrine into law today? One concern I have about such exceptions is that they may entrench a compromise based on a snapshot of the current state of this conflict, that will soon be outdated, perhaps immediately, or perhaps within a few decades, as norms change and many religious denominations eventually decide that they do not, in fact, have any religious objection to same-sex marriage.

In any event I think it would be illuminating for the scholars who are writing the Mirror of Justice side of this debate to address more directly the issue of accommodation of religious objections to interracial marriage, and why the present situation requires such a different legal response. (And I apologize if you all have, in fact, addressed this, somewhere other than in the Mirror of Justice post linked to above, which is all that I have read of this exchange.)

Posted by: Joey Fishkin | Nov 8, 2013 3:19:16 AM

I appreciate Dale Carpenter interacting on this subject, especially since MOJ doesn't provide comments at this time.

Posted by: Joe | Nov 8, 2013 11:27:53 AM

ETA: I think comments on blogs on the whole a good policy, but my comment was not really meant to be a dig or something -- many bloggers (see, e.g., some at Balkinization) has decided to have a no comment policy. The diversity probably is a good thing. The no comment group often responds to emails, which continues to amaze.

Posted by: Joe | Nov 8, 2013 12:38:27 PM

The fact that MOJ contributors are interacting with Professor Carpenter and not random bloggers strikes me as a ringing endorsement of their new comment policy.

Posted by: Anon | Nov 8, 2013 2:58:39 PM

As much as I like Dale Carpenter and appreciate his work, I'm not sure how productive he will be with engaging Robbie George's acolytes over at MOJ. I know we are all supposed to pretend that Laycock, Garnett, Wilson, etc. are objective scholars who argue in good faith but lets be real. They work in close connection with the Catholic Bishops political campaign to defeat any progress in securing legal and political LGBT equality. They oppose ENDA, marriage, civil unions, and would be quite pleased in Lawrence was overturned. Just recently, NOM has started a repeal effort in California for the laws protecting trans kids, who are the most vulnerable in our community, and has really angered alot of activists. Frankly, the Catholic Church and its surrogates in the academy, have refused to give one inch in this debate. If anything, the RCC has regressed from its more moderate position in the 90s when it was at least neutral on ENDA.
Dale, for better or for worse, is more known for his libertarianism, which makes him extremely atypical when it comes to gay rights. He opposes ENDA, for example, based on his libertarianism and I believe advocates for privatization of marriage as a method to minimize religious conflicts. I'm sure it makes for interesting academic discussions but would be of little use to the mainstream gay rights movement.

Posted by: etseq | Nov 14, 2013 3:08:59 PM

I have no idea who "et seq" is, but he/she has a tendency to greatly over generalize. I have not worked in close connection, or in any connection at all, with Catholic opposition to marriage equality or any other issues of LGBT equality. I am not part of MOJ, except that those who are part of it have posted my letters about same-sex marriage and religious liberty. And not all the folks at MOJ fit etseq's stereotypes either. I support ENDA, support same-sex marriage, and support civil unions where marriage is unachievable. I treated the issue in Lawrence as an "easy case" in 1981 (59 Tex. L. Rev. at 376) and have never changed my mind. My position is, and always has been, that liberty in intimate personal matters is very important, that both sex and religion are such intimate personal matters. I am equally exasperated with the religious side's refusal to recognize gay liberty and equality and with the gay rights side's refusal to recognize religious liberty. See generally Laycock, Religious Liberty and the Culture Wars, http://ssrn.com/abstract=2304427. Folks should stop assuming that anyone who supports liberty for your opponents necessarily opposes liberty for you, and they should quit thinking that to achieve liberty for themselves they must oppose liberty for their opponents. "Liberty and justice for all" is still an attractive goal. I'm also on deadline, so I will try hard to ignore any responses to this post.

Posted by: Douglas Laycock | Nov 14, 2013 4:16:21 PM

It appears Professor Laycock is very offended that gays and lesbians are not sufficiently appreciative of his academic and political efforts to curtail their rights, which includes not only publishing academic articles advocating incredibly expansive religious exemptions but also lobbying legislatures and courts to implement the same. He was so offended that he took time away from his very busy schedule to defend himself against a mere commenter on a website so I hope the good professor will find similar time to substantively engage with the criticisms made by his colleagues. In any case, I respond below to his assertion that he and the religious right are the real victims of those uppity and ingracious gays.
First, as for my impertinence to question his commitment to gay "liberty" (notice how equality is subtly erased from the analysis), I should have anticipated such a rebuke. Professor Laycock is well known for his acerbic reactions when someone dares to challenge his premises. His infamous review of Marcia Hamilton's book God vs Gavel seems to have been motivated by a similar emotional reaction - he took it as a personal attack and he responded in kind. I am tempted to chalk this up to white male heterosexual privilege but that concept is too often invoked to shut down debate so I will give him the benefit of the doubt.
As to the merits, I am not sure if Laycock is intentionally revising history or if he genuinely believes his litany of support for gay rights. He frames the argument as two competing liberty interests - religion vs sex and then unsurprisingly, puts his thumb on the religion end of the scale to such an extent that religion infringes on whatever rights are left.
First, it is incredibly insulting for LGBT rights to be reduced to sex acts and it shows a fundamental clash of worldviews. Laycock takes the same approach to gender equality (abortion) and lumps it all together as "sex". This is a common trope in right wing religious discourse where the concept of sexual orientation does not exist - being gay is a not a biological given but merely a choice to engage in same sex activity, just like premarital sex, adultery, etc. The reason for this is obvious - to avoid any comparison with race and also to limit equal protection analysis to rational basis. It is very telling that Laycock is enthusiastic about Lawrence because of its focus on "liberty" grounded in substantive due process. However, he elides any equal protection claims because that undermines the "balancing competing liberties" strawman he has constructed.
So, it is a bit too clever by half when Laycock lists his gay rights bona fides - ENDA, marriage, civil unions, but fails to make it clear that his support is conditional upon very expansive religious exemptions.
Next, even though Laycock attempts to distance himself from the Catholic Church's position, his conception of religious liberty is virtually identical to the arguments the Church advances. Specifically, his conception of Church autonomy, while not grounded in natural law, has the same effect. I will give him credit for being consistent in that he supported Bob Jones University's position that church autonomy shielded not only churches but also schools they own from civil rights laws. In that case, he performed the same slight of hand where racial equality was balanced against "religious liberty" and he again privileged religion by inventing this fictive concept of church autonomy, an extra-constitutional concept that had no warrant in supreme court jurisprudence.
Long story short - Laycock, like many religious conservatives, thinks that sincere religious belief somehow exempts one from moral culpability when it comes to discrimination, whether that be racism, sexism or homophobia. In this upside down world, an accusation of bigotry is somehow worse than legally restricting the rights of your fellow citizens (somehow being called an abomination, immoral, evil, etc. is fair game - that is deemed reasonable because it is grounded in religion - but the word bigot is out of bounds). Again, this is a common trope in conservative discourse surrounding race and gender - racism and sexism are minimized but being called a racist or a sexist is beyond the pale.
PS - If anyone wants a peek into how Laycock really views gay rights, womens rights, and atheism, see his speech "Sex, Atheism, and the Free Exercise of Religion" http://www.law.virginia.edu/pdf/faculty/hein/2011/laycock_det11.pdf
He views gay rights, sex in general but women in particular, and atheism as a literal threat to the survival of religion in the US. I am not being hyperbolic. He claims all these movements but gay rights in particular are motivated in part by a desire to punish religion as some sort of revenge for past abuses. He quote mines from a few radical activists and even uses anonymous sources to bolster these ridiculous claims. He also completely rewrites religious history in the US by ignoring the contentious and often deadly disputes between protestants and catholics, as well as other minority faiths in order to make his claim of a unique historical threat to religion. In his view, there are two essentialized categories: Gays vs. Religious. This only makes sense if you define religious as white evangelical protestants. Of course, this does not reflect reality where a majority of gays are religious and a majority of religious believers who are pro-gay. Needless to say, this is another way of demonizing gays as the aggressors in a culture war and perpetuates yet another right wing slander that gays, unless they stay in the closet or convert to heterosexuality, are by their very nature are a threat to society.

Posted by: etseq | Nov 18, 2013 12:47:56 AM

This is, from top to bottom, a remarkably silly distortion of Professor Laycock's views and of his published work, which I suggest that people read for themselves.

Posted by: Paul Horwitz | Nov 18, 2013 1:44:41 PM

I deleted an additional comment by etseq that, in my view, only re-packaged and re-directed the complaints and criticisms set out in the Nov. 18 12:47:56 comment.

Posted by: Rick Garnett | Nov 19, 2013 9:24:27 AM

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