Vischer, Robert K., Commonweal
Same-Sex Marriage and Religious Liberty
Edited by Doug Laycock, Anthony Picarello Jr., and Robin Fretwell Wilson
Rowman & Littlefield, $34.95, 320 pp.
Reasonable people can disagree about the merits of same-sex marriage. Reasonable people should recognize, though, that the adoption of same-sex marriage will bring a wave of religious-liberty disputes. That is not necessarily a compelling reason to oppose same-sex marriage, but it is a reason to pay more attention to the religious-liberty implications of the emerging legal order.
Few same-sex-marriage advocates favor a diminishment of religious liberty for its own sake. The problem is rather that the institution of same-sex marriage will need to rely heavily on state power. As a legal institution, heterosexual marriage encounters relatively little resistance from the citizenry because it is grounded not just in legal norms, but in social, cultural, religious, and biological norms as well. Same-sex marriage still encounters significant resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social and cultural supports that heterosexual marriage has, even outside the religious context.
It is not enough for society to respond to those who object to same-sex marriage simply by saying, "If you oppose same-sex marriage, don't enter into one." After all, those who object to same-sex marriage make up many of the associations that constitute civil society. Once the state has expanded the legal definition of marriage to include same-sex couples, the pressing task will be to determine how aggressively to enforce that definition. Should the government require the extension of employee benefits to same-sex spouses? Should it take away an organization's tax-exempt status if it refuses to recognize same-sex marriages? Should it impose liability on professionals who refuse to perform same-sex marriage ceremonies? To what extent should it enforce legal norms associated more tangentially with same-sex marriage, such as those that forbid antigay speech in school or the workplace, or prohibit employment discrimination against gays by organizations that consider homosexuality immoral?
Same-Sex Marriage and Religious Liberty is an indispensable new book that tries to address some of these questions. The legal scholars who contributed to the volume were asked by the editors "to take as a given that the legal definition of marriage has been expanded to include same-sex couples, and then to explore the religious-freedom implications of that legal change." The contributors carefully trace the legal doctrines that will shape this battle in the courts and legislatures.
To their credit, none of the contributors--several of whom support same-sex marriage--attempts to gloss over the very real threat to religious liberty posed by efforts to ensure the equal treatment of gays and lesbians in our society. The broad range of potential conflicts between a state committed to same-sex marriage and citizens opposed to it may surprise readers. In these various contexts, what is at stake for religious liberty? Marc Stern of the American Jewish Congress puts it bluntly:
The legalization of same-sex marriage would represent the triumph of an egalitarian-based ethic over a faith-based one, and not just legally. The remaining question is whether champions of tolerance arc prepared to tolerate proponents of a different ethical vision. I think the answer will be no.
Some activists insist that organizations that refuse to recognize same-sex marriage should lose their tax-exempt status. They cite as precedent the IRS's withdrawal of tax-exempt status from Bob Jones University because of the school's ban on interracial dating. Douglas Kmiec writes that it is not hard to imagine that churches could "be targeted for similar legal penalties and disadvantages. …