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Same-Sex Family Equality and Religious Freedom

Ira C. Lupu
George Washington University Law School

Robert W. Tuttle
George Washington University Law School

Northwestern Journal of Law and Social Policy, Forthcoming
GWU Legal Studies Research Paper No. 478
GWU Law School Public Law Research Paper No. 478

Abstract:     
In the spring of 2009, the legislatures of Connecticut, Maine, New Hampshire, and Vermont became the first in the U.S. to enact laws recognizing the legality of same-sex civil marriage. The legislation in all four states included provisions designed to protect the freedom of clergy and religious communities that do not want to recognize same-sex marriage. The legislation in several of the states also included provisions designed to insulate religious organizations from obligations that might arise from the legalization of same-sex marriage – for example, with respect to adoption or the provision of housing to married couples. Despite academic and political prodding, however, none of the states included provisions designed to exempt public employees, or private vendors in the wedding industry, from pre-existing legal obligations to serve without regard to the same-sex character of a marriage or family.

This paper develops a typology of conflict between same-sex marriage and religious freedom, and builds on that typology to analyze the issues raised by this new legislation. In particular, the paper defends constitutionally distinctive freedoms for clergy and houses of worship with respect to the celebration of marriages; analyzes and critiques proposals that would allow public employees and private vendors to assert conscientious objections to serving same-sex couples; and assesses the circumstances in which religious entities, including religious charities and educational institutions, should be obligated to serve same-sex families on equal terms.

[Downloadable here.]