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Sunday, May 24, 2009

More on religious freedom, exemptions, and SSM

Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot").  Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).

Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting:  "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these."  In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won’t have much effect on gay people’s opportunities.  It is rather that we shouldn’t accommodate bigotry."  And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."

Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots."  (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.")  I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.

Posted by Rick Garnett on May 24, 2009 at 09:30 AM in Constitutional thoughts | Permalink


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Same-Sex Marriage Laws can be a good topic for argumentative essay. One can show facts and opinions and the same time.

Posted by: Essay | May 26, 2009 11:03:59 PM

I wrote a long, thoughtful, detailed comment, replying to the comments so far, but then (somehow . . @#$@#%) lost it. So, now, the edited version: Micah, you are right, the questions you ask *are* both important, and require more than a blog-comment in reply. I wonder, have you had a chance to check out the letters that Laycock, Berg, I, and others have sent to legislators considering SSM laws, urging religious-liberty exemptions? We try, anyway, to answer some of the questions.

Dan, fair point about expressive harms. That said, is the "negative moral residue" you think that religious-liberty exemptions leave any different, really, than the "negative moral residue" that results from, say, our commitment to free speech (see, e.g., Cohen, Sullivan, Brandenberg, etc.)?

Posted by: Rick Garnett | May 26, 2009 2:14:03 PM

I posted on this issue last year, which triggered a bit of a dustup, and while I think Rick is right to say there's a sphere that the liberal state should not intrude, my sense is that the sphere of non-interference is smaller than the one Rick would provide.

FWIW, I find Andy's distinction b/w harmful and harmless forms of bigotry interesting but not yet persuasive. What is described as harmless bigotry is what might also be thought to be the expressive harm (and its material harm that follows) in the bullying context, whether online or offline. Whether the law should step in to prevent that "harm" is a separate question, but I'm not sure we can simply define the expressions of bigotry as harmless just because the gay person can find someone else to provide the service sought. (Don't forget the transaction costs of finding alternatives too.)

That said, I would likely be willing to recognize the religious exemptions as a political compromise necessary to get SSM on the table. But it would be a choice that, to my mind, leaves some negative moral residue if the exemption is crafted too broadly.

Posted by: Dan Markel | May 25, 2009 9:59:56 AM

I have no problem with the religious exemptions for SSM, but would like to see those who seek exemption from the market place required to advertize themselves such ... after all there is no need for waste the time of these individuals who seek a specific service if it is not available to them.

Posted by: Ben Abbott | May 25, 2009 4:37:07 AM

Rick -- I was wondering if you could give us a rough sense of the principle justifying these exemptions. On your view, is it a principle of religious conscience? If it is, could you tell us something about it scope -- that is, (1) the type of exemptions it would authorize, and (2) the class of persons who could claim them. On your view, with respect to (1), does the justifying principle (or set of principles) cover exemptions for racial discrimination? With respect to (2), can non-religious small-business owners and non-profits claim the exemption? Or is there something special about religion which explains this? I realize these questions could be answered in a law review-length article, but I was hoping just to get an idea of what's doing the work here.

Posted by: Micah Schwartzman | May 24, 2009 3:37:53 PM

With the coming of SSM we will see the bigotry against singles, divorced and widowed enhanced. An much fairer alternative to recognition of SSM would be the derecognition of ALL marriage insofar as benefits are extended to married folks that singles do not share in.

Marriage should be like Baptism, Communion and Last Rights. Let superstitious folks participate as they like, but not at the expense of non-believers.

Posted by: jimbino | May 24, 2009 12:22:56 PM

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