Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty

By Severino, Roger | Harvard Journal of Law & Public Policy, Summer 2007 | Go to article overview

Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty


Severino, Roger, Harvard Journal of Law & Public Policy


  I. INTRODUCTION
 II. THE EVOLUTION OF SAME-SEX MARRIAGE
     IN LAW
     A. The Decades-Long Effort to Strike Down
        Traditional Marriage Laws Has Been a
        Consistently Losing One, Until Recently
     B. By Firmly Establishing Same-Sex Marriage
        in Law, the Goodridge Decision Opened
        the Floodgates of Gay Marriage Litigation
        Across the Country
     C. The Federal Defense of Marriage Act,
        Coupled With a Popular Backlash, Has
        Slowed the Spread of Same-Sex Marriage,
        For Now
        1. DOMA Protects the Traditional
           Definition of Marriage in Federal Law
           and Guarantees that the Question of
           Marriage Is Left to Individual States
        2. Lawrence v. Texas Calls the
           Constitutionality of Federal and State
           DOMAs into Question
III. THE LEGALIZATION OF SAME-SEX MARRIAGE IS
     GENERATING A MULTIPLICITY OF SERIOUS RISKS
     FOR RELIGIOUS INSTITUTIONS
     A. Religious Institutions that Refuse to
        Recognize Same-Sex Marriages Risk Civil
        Liability
        1. Religious Institutions that Disapprove
           of Employees Entering into Same-Sex
           Marriages Risk Suits Under Employment
           Anti-discrimination Laws
        2. Religious Institutions that Disapprove
           of Same-Sex Cohabitation Risk Suits
           Under Fair Housing Laws
        3. Religious Institutions that Refuse to
           Extend Their Services or Facilities to
           Same-Sex Couples on the Same Terms
           as Married Men and Women Risk Suits
           Under Public Accommodation Laws
        4. Religious Institutions that Express Their
           Religious Disapproval of Same-Sex
           Marriage Publicly Face Potential "Hate
           Crimes" or "Hate Speech" Liability
     B. Religious Institutions that Refuse to Treat
        Legally Married Same-Sex Couples as
        Identical to Traditionally Married Men and
        Women Risk Losing Equal Access to a Variety
        of Government Benefits and Privileges
        1. Religious Institutions that Refuse to
           Recognize Same-Sex Marriages Risk
           Losing Their Traditional Tax-Exempt
           Status
        2. Religious Institutions that Refuse to
           Recognize Same-Sex Marriages Risk
           Exclusion from Competition for
           Government-Funded Social Service
           Contracts
        3. Religious Institutions that Refuse to
           Recognize Same-Sex Marriages Risk
           Exclusion from Government Facilities
           and Fora
        4. Religious Institutions that Refuse to
           Recognize Same-Sex Marriages Risk
           Exclusion from the State Function of
           Licensing Marriages
 IV. CONCLUSION

APPENDIX A: SELECT FAILED CHALLENGES TO
  TRADITIONAL MARRIAGE
APPENDIX B: SELECT STATE RELIGIOUS EXEMPTIONS
  TO CERTAIN CATEGORIES OF DISCRIMINATION
APPENDIX C: SELECT STATE ANTI-DISCRIMINATION
  STATUTES WITHOUT RELIGIOUS EXEMPTIONS

"[T]he right to same-sex marriage conferred by the proposed legislation may potentially conflict with the right to freedom of religion...." Supreme Court of Canada, December 9, 2004. (1)

I. INTRODUCTION

On May 17, 2004, same-sex marriage became a legal reality in America. One hundred and eighty days earlier, the Massachusetts Supreme Judicial Court had mandated this result in the case of Goodridge v. Department of Public Health, (2) and in so doing, unleashed a nationwide wave of litigation and political controversy that has yet to subside. In Goodridge, the court decreed that the state's traditional definition of marriage, which consisted exclusively of one man and one woman, was "irrational" and discriminated against gays and lesbians so invidiously that it violated state equal protection guarantees. (3) Although the decision carried with it profound implications for religious liberty, (4) the Goodridge court dismissed any religious freedom concerns with the following conclusory footnote:

   Our decision in no way limits the rights of individuals to refuse
   to marry persons of the same sex for religious or any other
   reasons. 

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