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

That's the title of a new essay by MOJ-er Tom Berg, which will appear in a forthcoming issue of the Northwestern Journal of Law and Social Policy.  Forgive me if this piece has already been noted here at MOJ.  Tom, as MOJ readers may remember, supports granting access to civil marriage to same-sex couples, but Tom also supports accommodating religious objectors to same-sex marriage.  Here's the abstract:
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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 as small businesses like the wedding photographer providing personal services related to a marriage.
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Tom's fine paper is downloadable here.