Articles: (1) SSM and Religious Liberty, and (2) Religious Symbols

As an associate dean, I've found it next to impossible to have time to post on MOJ.  But every once in a while I want to show up to let people know I still exist.  So here are abstracts from a couple of new articles I've posted on SSRN.

"What Same-Sex-Marriage and Religious-Liberty Claims Have in Common"

This Article, from a symposium keynote talk, presents a case for adopting significant religious accommodations for objectors to same-sex marriages. My thesis is that there are important common features between the arguments for same-sex civil marriage and those for broad protection of religious conscience. Even though the two are pitted against each other in disputes, the strongest features of the case for same-sex civil marriage also make a strong case for significant religious-liberty protections for dissenters. One implication is that there are good reasons for recognizing same-sex civil marriage. But the other implication is that if a state does so, it should enact strong religious accommodations too, as a matter of consistency and even-handedness.

Among the parallels, both same-sex couples and religious believers claim that their conduct stems from commitments central to their identity – love and fidelity to a life partner, faithfulness to the moral norms of God – and that they should be able to live these commitments in a public way, touching all aspects of their lives. If gay couples claim a right beyond private behavior – participation in the social institution of civil marriage – so too do religious believers who seek to follow their faith not just in houses of worship, but in charitable efforts and in their daily work lives. Therefore, I argue, religious accommodation ought to protect not just churches and clergy, but also religious nonprofit organizations like Catholic Charities, and small businesses like the wedding photographer providing personal services related to a marriage.

"Religious Displays and the Voluntary Approach to Church and State"

This article, from a keynote talk for a symposium on Ten Commandments monuments and other government religious displays, argues that the distinctive constitutional approach to church-state relations in America has been the “voluntary” approach, under which government leaves religious practice to the free decisions and energies of individuals and groups. Several principles within that approach call for invalidating official displays that endorse the religious truth of propositions such as the Ten Commandments. But another key component of the American constitutional approach is that religion remains important to public life: indeed, in America a primary argument for religious freedom and other human rights has been a religious argument that rights are God-given and therefore have priority over government authority. Thus, although religious voluntarism calls for invalidating many government-sponsored religious displays, the rationale for doing so must recognize multiple ways in which religion is relevant to public life at the most fundamental levels. The paper concludes with three suggested means of recognizing that relevance.

Tom