It is increasingly obvious that the US Supreme Court is going to have to rule on this matter soon. It is an untenable situation for a same-sex couple to be married in Vermont and Massachusetts and Iowa, but not in Texas, Nevada and Montana. I believe SCOTUS will constitutionalize gay marriage, and that being the case, it might be better for my side if it gets done sooner rather than later. If done sooner, there might still be enough backlash left in the American people to get a constitutional amendment passed erecting a high barrier or protection around religious institutions. Thoughts?
Wednesday, April 8, 2009
An interesting item, from BeliefNet ...
a response to Michael P. on liberty
You are right, Michael, that i did not address the discrimination issue. The issue there is whether it makes sense to subsidize only potential parents (because of the strong state interest in the welfare of children) and, if so, how tightly tailored the legal categorizations have to be. (I personally would like to see them drawn more tightly, including legally recognized unions of same-sex adoptive parents, but not including other same-sex couples, and excluding legal recognition of new unions of elderly heterosexuals, but not excluding different-sex couples whose infertility remains hidden from public scrutiny.)
You are wrong, however, to call the lack of "recognized, respected" unions a lack of "liberty" for same-sex folks. If you go that route, the lack of any human good can be called a lack of "liberty" to have that good. This is not just a confusion, it is a skewing toward statism and against subsidiarity. After all, it is normally the State that is at fault for restraining our liberties. Once we reframe the issue as an absence of the human goods (rather than the liberties) of "recognition" and "respect", we can see that there are obvious alternatives to the State as sources for these goods. In any healthy society, and above all in a liberal one, the State should not be the sole or even the primary source of the recognition and respect we all need. If our society today is drifting in that direction, we should be paddling hard against the current.
I realize that there is a old Catholic tradition of expanding the scope of the positive sense of "freedom" which you are no doubt drawing upon. But that tradition comes out of natural law thinking that, when grafted onto modern centralistic statism, ends up having the State be the sole or major proponent of human excellence or flourishing. That's a mistake, in my view.
The Real-World Narrative Con't (Part 2)
[Again, one real-world narrative may be worth a thousand abstractions. Part 1 is here.]
The Children presented Dr. David Brodzinsky, a Clinical and Developmental Psychologist from Oakland, California as an expert in child clinical psychology, developmental psychology with a specialization in adoption, foster care, attachment and the adjustment of children in adoption. Dr. Brodzinsky was retained to conduct an evaluation and assessment of the children’s relationship and attachment to Petitioner, specifically, as the Petitioner, but also to Roe and Tom Roe, Jr., as part of the family unit. Dr. Brodzinsky’s assessment entails compiling facts about the children’s history, observing and interviewing to determine the existence and quality of the children’s attachment to their caregivers. In forming an assessment, the doctor also analyzes the behaviors and tendencies of the children towards the caregivers when stressed, the verbal and non-verbal cues to determine whether the children view their foster parents as individuals capable of offering comfort and advice and, whether the foster parents offer a secure base for the children. Dr. Brodzinsky evaluated the family for six hours over a two-day period in May 2007, at home, during play, individually, during familial interactions and at school.
According to Dr. Brodzinsky, at the time of the assessment, the children were, understandably, slightly more attached to Petitioner, as the primary caregiver who also took time off of work to help the children adjust immediately after the placement. However, the witness also noted that the children exhibited strong signs of attachment to Roe and Tom Roe, Jr., who they consider their “daddy” and older brother. The children showed healthy signs of social development, in that, they were appropriately friendly, but not overly friendly with the witness, who tried to act as a non-participating observer. During playtime, the children rode their bikes after Petitioner reviewed the rules of bicycle riding. During the children’s play, Petitioner maintained focus on their whereabouts and surroundings. The witness was also privy to appropriate levels of sibling conflict, which were quickly resolved.
The children’s teachers, coined in the field as “collateral informants” typically provide useful information into a child’s day-to-day life, cleanliness, and parental involvement. Here, during individual interviews with Dr. Brodzinsky, John and James teachers reported that Petitioner and Roe were very involved in the children’s educational development. Due to the lack of educational support prior to arrival at the Petitioner-Roe home, John struggled in school and had to repeat first grade, but was progressing.
With regard to the children’s understanding of their family dynamic, Dr. Brodzinsky reported that, obviously, James has no independent memory of his former family or caretakers. John has a limited memory of his former family and sometimes confused interactions with his mother and aunt. John, who has had no contact with his sisters in about two years, stated that he misses them. While John did not understand the meaning of adoption at the time of the assessment, Tom Roe, Jr., comprehended the concept in an age appropriate manner.
Based on his assessment, Dr. Brodzinsky concluded that John and James would be emotionally devastated if removed from the Petitioner-Roe home. As Petitioner, Roe and Tom Roe, Jr., are the only family James knows and as John has not yet developed stability, a second separation would cause academic regression, separation anxiety, sleep problems, and trust issues. The witness also opined that it is in children’s best interest to be adopted by Petitioner, as opposed to maintaining lesser forms of permanency through continued foster care, permanent guardianship or the like. According to Dr. Brodzinsky, children, at age appropriate levels, understand that foster parents and guardians are not a legal family. The doctor does not consider Petitioner and Roe’s sexual orientation a factor in their parental abilities or the children’s wellbeing. He concludes that: (1) Petitioner and Roe’s quality of parenting is high and healthy; (2) the parent-child relationships are strong and healthy; (3) the resources and educational opportunities available to the children in the Petitioner-Roe home are beneficial; and (4) separation would cause emotional trauma to John, James and Tom Roe, Jr.
The Court also heard testimony from Ronald Gilbert, the children’s Guardian Ad Litem since June 2005. Mr. Gilbert, who has served as Guardian Ad Litem to over 100 children, visits the Petitioner-Roe household monthly to observe the children and the family. Based on Mr. Gilbert’s observations, the children are in excellent health, well behaved, performing well in school and bonded to Petitioner, Roe and Tom Roe, Jr. During his visits, the Guardian regularly sees the three children playing and hugging one another like brothers. Based on his interactions and observations of other foster parents, Mr. Gilbert believes Petitioner and Roe are model parents. In fact, he testified that in all of his 100 cases as a Guardian Ad Litem, the Petitioner home is one of the most caring and nurturing placements he has encountered. He further opines that adoption is the preferred form of permanency over permanent guardianship because John and James deserve parents. According to the Guardian, the children would suffer mentally and physically if separated from Petitioner, Roe and Tom Roe, Jr. The Guardian Ad Litem’s official recommendation is to allow the Petitioner to adopt the children and states it is in the manifest best interest of the children.
The Guardian Ad Litem Program presented the testimony of Yves Francois, Adoption Supervisor for the Center for Family and Child Enrichment. Mr. Francois was assigned to this case in December 2005. He testified as to his personal knowledge of the minor children and the Petitioner and his knowledge of the policies and procedures for adoption in Florida. Mr. Francois confirmed that no one else has applied to adopt the minor children, and there is an adoption hold placed on the minor children until a final determination is made on Petitioner’s petition to adopt, as is customary. The witness explained that a “permanency plan” attempts to place the children in a stable home environment until the age of majority. By definition, permanency is achieved when a child is reunified with his/her parents, placed with a permanent guardian or family member or adopted. Mr. Francois stressed that, when adopted, a child gains parents and shares legal rights with those parents. The witness reports that when it became evident that John and James were in a termination of parental rights case, their permanency plan
became, and remains, adoption.
In October 2006, Mr. Francois performed a home study in connection with Petitioner’s petition for adoption. According to Mr. Francois, although all aspects of the home study were positive, CFCE could not recommend adoption only because of the statutory exclusion of homosexuals as adoptive parents. Lastly, Mr. Francois stated that if the children are not adopted by Petitioner, rather than allowing the children to remain in foster care until they reach the age of majority, CFCE would recruit other prospective adoptive parents, which, due to the age of the children, may result in separation of the siblings.
[More to come, later.]
A response to Richard on non-validation
First, even if we assume that non-validation does not curtail liberty, it may discriminate. And, as it happens, a state's refusal to extend the benefit of law to same-sex unions *does* discriminate. Now, whether the discrimination is justified is a separate question. Just on the discrimination issue: As the Vermont Supreme Court put it in 1999, the refusal to extend the benefit of law to same-sex unions"effectively
excludes [same-sex partners] from a broad array of legal benefits and
protections incident to the marital relation, including access to a spouse's
medical, life, and disability insurance, hospital visitation and other medical
decisionmaking privileges, spousal support, intestate succession, homestead
protections, and many other statutory protections."
Second, should we assume that non-validation does not curtail liberty? Consider this point of view:
[I]f
there are same-sex couples who want to form some sort of union and raise
children--who want, that is, to have the rich, stable, recognized, respected
relations that are at the heart of most people's conceptions of a worthwhile
life--and, because of our ethical traditions, there are no social institutions
to allow it, then we should create one or another form of them. This too, I believe, is an issue of
liberty. No matter how many options
there are already, this one, because of its centrality to characteristic human
conceptions of a worthwhile life, must be added. . . . What is at stake for same-sex couples are
several of the most important components of a good life available to human
beings. . . . Some persons do not want
deep personal relations or to raise children.
But the great majority of us do, and the [refusal to extend the benefit
of law to same-sex unions denies] same-sex couples some of the greatest, most
widely distributed, and most deeply embedded--sometimes even genetically
embedded--least easily substituted ends of human life there are.
James Griffin, On Human Rights 163-64 (2008) (emphasis added). See also Kenji Yoshino,
"Marriage Partners," New York Times Magazine, June 1, 2008
(discussing "how much human flourishing is enabled by the [marriage] right
and how much it is impeded by its denial"): "As many gay rights advocates have
claimed, the issue is less one of gay equality than of individual
liberty."
Non-Validation is not Prohibition
Let us all please stop speaking of legal non-recognition as a "ban" or as "forbidding" something. No limits are now placed on homosexual freedom to marry, in that same-sex unions are already completely legal everywhere in America. Like almost all other friendships, they are simply ignored by the state, and the burden of proof weighs upon those who advocate government registration and regulation of them.
Getting and staying married to someone of one’s own sex is not punishable conduct in any modern jurisdiction, as far as I can discover. True, homosexual sex acts were traditionally penalized, and that perhaps amounted to a kind of indirect prohibition on marriage, but even then religious or non-religious marriage vows were not themselves necessarily sanctioned. In any event, courts or legislatures throughout the developed world have largely eliminated prohibitions on such sex acts and have not replaced them with legal duties not to make religious or other vows and live together as married.Thus lack of legal recognition of gay marriage does not in any way limit conduct, as do ordinary legal prohibitions. (Indeed, it is marriage recognition that limits future behavioral freedom: Going through another marriage ceremony now becomes punishable as bigamy; having sex with someone else may become adultery; divorce may involve onerous reporting to the state; and the like.)
George on SSM and body-self dualism
Robert George responds to our conversation on same-sex marriage as follows:
I profoundly agree that [the SSM question] is not so simple or, at least, it is not simple in the way that people on the two sides seem to think it is simple. I say this for a particular reason. The debate is "simple" in this sense: If one, whether formally or merely implicitly, believes that persons are (whatever else we are) our bodies, and that we are not non-bodily persons (minds, consciousnesses, spirits) who inhabit and use nonpersonal bodies as extrinsic instruments, then one is likely to agree that the sexual intercourse of man and woman, inasmuch as it fulfills the behavioral conditions of procreation (whether or not the non-behavioral conditions happen to obtain), is capable of uniting them interpersonally and that bodily union, qua personal, is the indispensable foundation and matrix of the comprehensive (bioloogical, emotional, dispositional, rational, spiritual) union that marriage is. In other words, one will affirm marriage as a one-flesh union. (And the Biblical teaching that in marriage a man and woman become one flesh will make sense to you. And the law's historic concern with consummation as an essential element of marriage will also make sense to you.) If, by contrast, one embraces self-body dualism and regards the "person" as the conscious and desiring "self" that inhabits and uses the body as an instrument for achieving its satisfactions and realizing its other goals (which might be quite noble and even selfless -- body self dualism has no necessary connection with hedonism, as that word is typically used, or egoism), then you will reject the idea of marriage as a truly conjugal (i.e., one flesh) union, or treat it as a sort of myth or metaphor (e.g., a metpahor for intense emotional closeness). In that case, one will view truly interpersonal union as emotional or spiritual, not bodily. (And the Biblical teaching and the law's traditional requirement of consummation for a perfected and non-annulable marriage will make no real sense to you.) Of course, marriage, then will be a union of people at the emotional and spiritual levels, and there is no reason why two people of the same sex cannot unite emotionally (or spiritually) and find (or think they find) that mutually agreeable sexual acts enhance their experience of unity and enable them to express their feelings for each other. Of course, by the same token, there is no reason why more than two people cannot unite emotionally (or spiritually) and find (or think they find) that mutually agreeable sexual acts enhance their experience of unity and enable them to express their feelings for each other. That's exactly the point polyamorists make, and I'm sure they are right --- assuming that they are right about what persons are, and the relationship of persons to their bodies. (Of course, I think they are wrong about what persons are. Self-body dualism strikes me as deeply mistaken.)
If you look at the writings of the most sophisticated thinkers on the competing sides of the same-sex marriage issue (Koppelman, Macedo, Rauch, for example, on the pro-ssm side; Anscombe, Finnis, Mary Geach, for example, on the anti-ssm side), I think you will see that the debate hinges on whether in fact one-flesh communion is possible (or, to put the same point differently, whether bodily union--the type of union made possible by the sexual complementarity of male and female--is truly personal union). That in turn depends on whether the body is part of the personal reality of the human being, or whether human beings are non-bodily persons who inhabit nonpersonal bodies.
The same turns out to be true, by the way, in the debates over abortion and embryo-destructive research, and over assisted suicide and euthanasia. If one assumes the truth of body-self dualism and therefore identifies the person with "consciousness" (or some other such thing), then one has put into place the basis for judging that human embryos and fetuses are not yet persons and that individuals who are suffering from severe dementias or are in minimally conscious states are no longer persons. So I think it is no accident that most people who hold liberal views about sexual ethics and the nature of marriage also hold liberal views on abortion and other life issues. Indeed, it is hard to think of major theoretical writers who are "liberal" on sex and marriage but "conservative" on abortion, embryo-destructive research, and assisted suicide.
Prof. George and Patrick Lee have published a book developing this line of thought, Body-Self Dualism in Contemporary Ethics and Politics (Cambridge 2008).
Tuesday, April 7, 2009
President Obama striking out at the Vatican
This in the Washington Times today:
The Vatican has quietly rejected at least three of President Obama's candidates to serve as U.S. ambassador to the Holy See because they support abortion, and the White House might be running out of time to find an acceptable envoy before Mr. Obama travels to Rome in July, when he hopes to meet Pope Benedict XVI.
Italian journalist Massimo Franco, who broke the story about the White House attempts to find a suitable ambassador to the Vatican, said papal advisers told Mr. Obama's aides privately that the candidates failed to meet the Vatican's most basic qualification on the abortion issue.
* * *
Since the United States established formal diplomatic relations with the Vatican in 1984, the ambassadorial position has been held by political supporters and pro-life Catholics under both Republican and Democratic administrations.
Click here for the full article.
I think this data is up to date and accurate ...
This data may be of interest. Please alert me to inaccuracies.
As of April 2009, four states recognize
same-sex marriage: Connecticut, Iowa,
Massachusetts, and Vermont; three states recognize same-sex unions (i.e., civil
unions for same-sex couples): California, New Hampshire, and New Jersey; and five more jurisdictions have
enacted domestic partnerships laws that grant many or all of the benefits of
marriage to registered domestic partners:
Hawaii, Maine, Oregon, Washington State, and the District of Columbia. According to a 2007 Pew Research Center survey,
As of April 2009,
To continue ...
Yesterday, I posted what I referred to as a kind of "prolegomenon". Now, to continue. This is part one. More parts will follow in due course. We all know that a picture can be worth a thousand words (loathe as we academic often are to admit it). Well, a real-world narrative can be worth a thousand abstractions. [What follows is quoted material.]
On December 11, 2004, two male siblings, ages four and four months, were removed from their home on allegations of abandonment and neglect and placed into the custody of the State. Searching for an immediate placement, the child protective investigator contacted Petitioner, a licensed foster caregiver, to inquire of his availability and willingness to accept the two children on a temporary basis. The investigator explained that the two children, John Doe and James Doe, needed, and deserved, a good Christmas. Petitioner agreed to accept the children, temporarily, until a more permanent placement could be found.
Twenty-months later, upon the termination of parental rights of John and James respective biological fathers in July and April 2006, respectively, and the termination of the parental rights of their mother in July 2006, the children became available for adoption. The children remained in Petitioner’s care throughout the pendency of those proceedings and currently, while they continue to await adoption. Although all parties involved initially contemplated that the foster care placement would be temporary, the children have now been in Petitioner’s care and custody for four years. John is now eight and James is four, the same age John was at the time of the initial placement. Since the date the children were placed in care, neither the Center for Family and Child Enrichment (“CFCE”), nor the Department of Children
and Families (the “Department”) received any applications from prospective adoptive parents seeking to adopt John or James until this petition in September 2006.
Petitioner, the unmarried 45-year old1 foster care provider of John and James petitioned to adopt the siblings to, among other ambitions, “provide a permanent family for them where they will be nurtured and well taken care of.”2 Thereafter, CFCE performed a positive preliminary home study as to the suitability of Petitioner as a prospective adoptive parent. However, CFCE did not recommend, and the Department subsequently denied, Petitioner’s application for adoption. Petitioner is a homosexual. [The relevant statute provides that] “[n]o person eligible to adopt under this statute may adopt if that person is a homosexual.”]
The children arrived at the home of Petitioner and Tom Roe, Sr., domestic partners, and
Tom Roe, Sr.’s then eight-year old biological son, Tom Roe, Jr., on the evening of December 11,
2004. John, the elder sibling, arrived with his four-month old brother wearing a dirty adult sized
t-shirt and sneakers four sizes too small that seemed more like flip-flops than shoes. Both
children were suffering from scalp ringworm. Although John was clearly suffering from a
severe case of ringworm, the medication brought from John’s home to treat his scalp was
unopened and expired. James, too, suffered from an untreated ear infection, as evidenced by the
one-month old, nearly unused, medication. John did not speak and had no affect. He had one
concern: changing, feeding, and caring for his baby brother. It was clear from the children’s first
evening at the Petitioner-Roe home that the baby’s main caretaker was John, his four year old
brother.
On that December evening, John and James left a world of chronic neglect, emotional
impoverishment and deprivation to enter a new world, foreign to them, that was nurturing, safe,
structured and stimulating. Although Petitioner and Roe had fostered other children, caring for
John was the most challenging of their foster care experiences. For the first few months, John
seemed depressed and presented a void, unresponsive demeanor and appearance. Upon arriving
at the Petitioner home, John did not speak a word for about one week. After two weeks, he
began to mumble imperceptible utterances. After about one month, John finally began speaking.
Petitioner quickly learned that John had never seen a book, could not distinguish letters from numbers, could not identify colors and could not count. He could not hold a pencil. He had
never been in an early childhood program or day care. Nevertheless, John’s potential for
educational development was apparent. Although he had not had any formal education, John
could sing and pick up lyrics very quickly. Early on, Petitioner and Roe noticed that John
hoarded food by requesting additional servings at the start of dinnertime and later hiding the
extra food in his room. John eventually grew out of this behavior, due in part to a tactic
employed by Petitioner and Roe of showing John, in advance of mealtime, the more than
sufficient amount of food on the stove prepared and available for the family.
James was a very happy baby and was content with anyone, even strangers. After
approximately two months, James began to exhibit signs of attachment to his primary caregivers,
Petitioner and Roe. John, however, took about two years to fully bond. At one time, John
shunned hugs from Petitioner and Roe. However, in his own time, John developed bonding and
today, initiates goodbye hugs each morning before going to school.
Petitioner and Roe met in 1999 and began living together in July 2000. Petitioner, who
has a Bachelor in Psychology and Masters Degree in Public Health, has worked as a flight
attendant for American Airlines for 17 years. Roe has worked for Amtrak for 10 years. On their
second anniversary, the two acknowledged their commitment before friends and family by
exchanging matching rings at an informal ceremony at their home. Since that time, they have
considered themselves spouses. They support each other financially by pooling their money into
joint checking accounts. Both Petitioner and Roe’s families support their union. At some point,
Petitioner and Roe decided to expand their family. After considering surrogacy and adopting
abroad they decided to become foster parents. Since becoming foster parents, Petitioner and Roe have fostered a total of nine children including John and James. When fostering, Petitioner says
they treat their foster children just like a biological child. Petitioner describes Roe as nurturing
and stable. Although both Petitioner and Roe parent the three children in their home, they made
a strategic decision that only Petitioner should petition to adopt John and James, believing a twoparent
gay adoption would be impossible. If Petitioner’s petition to adopt is successful, Roe
plans to initiate a second parent adoption at a later date. Nonetheless, Roe signed an affidavit
committing to adopt the children alone should Petitioner die prior to the conclusion of the instant
case.
On weekdays, the household wakes up at about 6:30 a.m. Petitioner usually prepares
breakfast, permitting each child to assist with an assigned kitchen duty. Each morning, the
family eats together without distraction from the television. As each child finishes his breakfast,
he puts his dish in the sink and proceeds to the bathroom to brush his teeth and hair. Petitioner
and Roe purchased a Ford minivan, which Petitioner jokes was not his dream car, however, to
accommodate the family size, is the most feasible. Tom Roe, Jr. is dropped off at school first.
Afterwards, Petitioner takes John and James to school, walking them into their classrooms and
usually speaking to their respective teachers. In the afternoon, after Petitioner picks the boys up
from school, they generally go to the park for tennis lessons. At the conclusion of their lessons,
the family heads home for dinner. At mealtime, the family blesses the food together and takes
turns sharing the highlights of their day. Phones are not answered and the television is off during
dinner. After the children are excused from the table, the older children load the dishwasher.
After dinner, the children spend one hour doing their homework. Although James does
not have homework, he spends time at the table pretending to do homework. John requires more supervision and one-on-one interaction to complete his homework. If a child finishes his
homework early, the remaining time is spent reading. After homework is completed, the
children are allowed to watch television. At bedtime, the boys retreat to their separate beds.3 By
morning, however, James seems to always find his way into John’s bed.
The family attends a non-denominational Christian church and have as pets, a dog, rabbit
and kitten. John and James refer to Petitioner and Roe as “papi” and “daddy” respectively. John
and James have lived in the same neighborhood, attended the same school, day care and aftercare
since their arrival in the Petitioner-Roe home. As a result, each child has created friendships
from school and in the neighborhood. John and James are closely bonded to Tom Roe, Jr., and
their extended family. The boys consider Petitioner and Roe’s parents, brothers and sisters their
grandparents, uncles and aunts. The extended family sends the boys gifts for their birthdays and
the holidays. Roe’s mother, who lives in Tampa, visits the family regularly.
[That's enough for now. More to come, later]
Gay Marriage and Religious Liberty
With the recent developments in Iowa and Vermont, gay marriage has now been instituted in four state supreme court decisions and one legislative vote (and civil unions are authorized in other states). One of the court decisions has been overturned narrowly by the voters, but the ease of California's amendment-by-initiative process suggests that may be unlikely to happen elsewhere. In none of these instances did the decisionmaker simultaneously resolve the significant questions that arise about the effect recognizing gay marriage will have on religious liberty. Courts, of course, can't do so; they only decide the case before them and leave further questions for another day. Vermont's bill does not address most of the religious-liberty questions.
The primary religious-liberty concern is not the one dealt with in the Vermont statute: that objecting clergy or houses of worship would have to perform or host same-sex marriages. That prospect seems extremely unlikely anyway. Attacks on the tax-exempt status of traditionalist churches are more likely, but still doubtful. But recognition of gay marriage will definitely make it more likely that religious schools and social services, even those with religious content throughout their programs, will be punished if they refuse to hire openly gay people as teachers or counselors or to pay benefits to their partners. It may do this in several ways: (1) Most obviously, directly triggering the obligation to pay spousal benefits. (2) Depriving religious organizations of the (sometimes successful) argument that they discriminate against all extramarital sex and not on the basis of sexual orientation. See CLS v. Walker, 453 F.3d 853, 860 (7th Cir. 2006). (3) Strengthening the gay-rights argument that there is a compelling governmental interest against sexual-orientation discrimination, overriding a constitutional religious freedom claim, in virtually every context -- not just marriage but also hiring and other associational decisions by private religious organizations. See, e.g., Bob Jones Univ. v. U.S. (allowing stripping of tax exemption on ground that prohibition of race discrimination in numerous other contexts shows a "firm national policy" and a compelling, overriding interest).
It may be time for defenders of traditional opposite-sex marriage to shift some attention from trying to stop gay marriage to trying to secure religious liberty protections, at least in states where there is a significant prospect that the courts or the legislature will recognize gay marriage. Once that decision of recognition has happened, the traditionalist religious organization is on much weaker strategic ground in seeking protection to continue to pursue its vision of marriage in its employment and other decisions. As Doug Laycock suggests in the conclusion to the excellent book of essays Same-Sex Marriage and Religious Liberty, there is opportunity at the front end to secure legislative compromises in which any recognition of same-sex marriage is accompanied by significant exemptions. The exemptions should cover not just churches refusing to perform ceremonies -- symbolically important, in practice not a live issue -- but also religious schools and social services in their employment, leadership, and membership decisions. But if traditionalists fight all the way to the mat on stopping gay marriage altogether, they may lose opportunities to secure such protection.
Tom
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