In this week's NY Times "Beliefs" column, Peter Steinfels writes about the efforts (involving three MOJers, Perry, Garnett, and Berg) to add meaningful religious-liberty protections to statutes recognizing same-sex marriage. He isn't enthralled with the literary style of our proposed model exemption (in the letter you can link to here): "The language these scholars have crafted to balance [the] competing concerns is rather less eloquent than 'in sickness and in health' and 'till death do us part.'” (What do you want; we're law professors.) But he does, I think, implicitly endorse the importance of the project.
Saturday, May 23, 2009
Steinfels on Same-Sex Marriage and Religious Liberty
Thursday, May 21, 2009
The Continuing SSM / Religious Liberty Debate in New Hampshire
After the New Hampshire House narrowly refused yesterday to pass a same-sex marriage bill with reasonable religious-liberty protections demanded by Democratic governor John Lynch, there now appear to be negotiations to return to the issue. New Hampshire seems likely to pass SSM sometime soon; the question is whether it will act as a decent model for allowing religious traditionalists to follow their conscience as well. As background on the issues, here is the letter that Robin Wilson, Carl Esbeck, Rick, and I wrote to the governor on May 1. [UPDATE: Here too is the letter that Professor Doug Laycock wrote to the governor on April 30 supporting same-sex marriage but also strong religious exemptions.]
The original New Hampshire bill had a wholly inadequate provision protecting only clergy from actually having to solemnize a marriage. The governor's proposal would, among other good things, protect other religious organizations and their employees, and in contexts beyond the marriage ceremony itself that involve "promotion" of a marriage: for example, a religious college objecting to including same-sex couples in married-student housing. The governor's proposal is not perfect; it wouldn't (as we argued should happen) protect individuals in small commercial businesses, like wedding photographers, who personally, directly participate in a marriage ceremony. But Gov. Lynch nevertheless deserves credit and support for standing up for protecting the deep beliefs and identities of both groups, traditionalist objectors as well as gay couples.
Wednesday, May 20, 2009
NH Legislature Rejects Religious Exemptions, Likely Killing SSM Bill
The New Hampshore legislature has narrowly refused to accept the governor's demand for a meaningful (but still pretty modest) religious exemption in the state's same-sex-marriage bill. I'm waiting on further reports, but it sure looks like we have a case here of some same-sex-marriage advocates (I can't yet calculate just how many) being more willing to kill recognition of same-sex-marriage than to give any quarter to traditionalist objectors and their religious liberty.
Tuesday, May 12, 2009
Updates to Call for Papers on "Christian Realism and Public Life: Catholic and Protestant Perspectives"
I've made updates to the Call for Papers for this conference, to be held at St. Thomas in Minneapolis on November 20-21, 2009, and sponsored by the Murphy Institute for Catholic Thought, Law, and Public Policy.
Paper proposals are now due June 30, with notification by July 20. The committed plenary speakers include Jean Bethke Elshtain (social and political ethics-Chicago), Robin Lovin (social ethics-Southern Methodist), David Skeel (law-U Penn), John Carlson (just war thought-Arizona State), William Cavanaugh (theology-St. Thomas), James Turner Johnson (just war thought-Rutgers), and Jeanne Heffernan Schindler (Catholic social thought-Villanova).
Monday, May 11, 2009
Article on Religious-School Funding and Educational Pluralism
Apropos of the discussion between Steve and Rick, I've just posted a short article on SSRN, based on a talk concerning school funding that I gave to a Rome audience in February. Here's an abstract:
The pattern of church-state relations in the United States presents what many Europeans may see as a paradox. America is by far the most religiously observant of Western nations, yet it provides far less than many Western European nations in government support for religiously affiliated education at the primary and secondary levels, the most important years in forming children’s minds. This article, written for a European audience, reviews two explanations for the American tradition of no financing. One is “pluralist,” asserting that religious primary and secondary schools can better maintain their independence and identity without state aid because aid brings state regulation; and the second “cohesionist,” asserting that while nonsectarian religion may be socially valuable, schools of particular denominations undercut social unity by separating children in their formative years and therefore should not be encouraged with government support. I offer a few reasons why the pluralist approach to education is more attractive than the cohesionist approach. Finally, I assess whether the tradition against financing of religious primary and secondary schools does in fact promote educational pluralism, and I conclude that, on balance, it is better for pluralism that religious schools have the option to receive state financing.
Thursday, May 7, 2009
"A Reprieve on [D.C.] Vouchers"
The President supports extending the program's funding, but for current students only. The Washington Post comments here.
Wednesday, May 6, 2009
A Few More Thoughts on Conscience Protection
I appreciate Cathy Kaveny's column and post and Rob's further post on conscience. A few thoughts.
First, Cathy and Rob are absolutely right to emphasize that a commitment to conscience must be principled, not simply special pleading for, or a second-best means to advance, one's own views. That doesn't mean, of course, that one is obliged to support every assertion of conscience with which one disagrees. All such assertions are limited by the need to protect the interests of others, and one can take conscience seriously while still deciding in a given case that protecting it would impermissibly violate another's interest. In particular, one can quite defensibly say that the question whether another human being is entitled to the most basic protections, including life, cannot be governed by individual conscience. So to me, a pro-life advocate is not at all necessarily inconsistent in rejecting conscience claims to commit abortions while supporting conscience claims to refuse to perform them. By contrast, I think, we are increasingly coming to see that if we take claims of conscience seriously and require that state-imposed harms to conscience be justified by palpable, non-speculative social concerns, then it is going to be difficult to justify a great many forms of state discrimination against same-sex relationships.
Second, there are indeed important differences in the degree to which an objector would be facilitating conduct s/he opposes; and only with some showing of closeness can society recognize a claim of conscience (is the night receptionist at a hotel really personally involved in the conduct of couples using the rooms?). But I do think that (on a distinct though related question) we ought to take seriously the burden on conscience that occurs when people are excluded from a profession or occupation because of a state-imposed demand. As Doug Laycock has pointed out (in this book), historically a central violation of religious liberty under the English establishment was the test oath, the state exclusion of Catholics and other dissenters from a range of occupations, "including positions of responsibility in the civil and military service, solicitors, barristers, notaries, school teachers, and most businesses with more than two apprentices." We can't simply say that Catholics voluntarily gave up their rights to participate in those occupations by remaining Catholics, or (in Rob's words) that Catholics were "making an affirmative claim to be empowered in [their] choice of profession."
Admittedly there's some difference when the exclusion is based on particular conduct rather than simple religious identity. But the lesson still remains that exclusions from a range of occupations--and today's nondiscrimination requirements can indeed affect a wide range--will burden individuals and cost society the contributions of significant groups of talented, conscientious people. We are under some obligation, I think, to ask whether a rule that effectively excludes a set of conscientious objectors from a profession or occupation is really necessary (as is obviously the case with a rule requiring executioners to perform executions). If it's not necessary, it may suggest a hostility to the group's beliefs or at least a callous indifference.
That brings up a third point. Cathy says, and I agree, that "sound legislation needs to take into account the interests of vulnerable third parties." But the flip side, which she doesn't mention, is that when third parties are not vulnerable or significantly affected, no strong reason exists to override the prima facie value of consicence. the majority of the controversial recent cases about same-sex couples -- the New Mexico wedding photogapher, the Christian running small rental properties, Catholic Charities' banishment from adoptions in Massachusetts -- there was not the slightest showing that same-sex couples had any difficulty finding another provider. A significant part of the motivation for fining or excluding those objectors, I think, has been to prevent offense to others (not material harm), or for the state to express disapproval of the objector's belief -- which makes these cases look more and more like the English test-oath exclusions.
Running through many of these points -- and necessary to make sense of them -- is a prima facie distinction between burdens on conscience from the state and from private parties. Except in cases of market power, private parties usually cannot prevent others' access to goods, services, or occupations; in a market society, there is usually another willing provider. But the state can shut down access altogether. We could implement this distinction by eliminating the laws against private discrimination; but because those laws don't always affect conscience, and experience has shown the laws are sometimes necessary, they can be justifiable as a default. Then the way to balance conflicting claims of conscience is to have non-discrimination laws with meaningful exemptions that presume conscience is protected except in cases where it would choke off access.
Saturday, May 2, 2009
Arguments for Religious Liberty Under Same-Sex Marriage: Latest Version
Four of us legal academics (Garnett, Wilson, Esbeck, and Berg) who have been pressing legislators for religious liberty protections in same-sex marriage laws have a slightly revised version of our arguments in this letter. We sent it to the governor and legislative leaders in Maine, where one house has approved SSM implementation and the other is set to vote next week. Meanwhile, bills recognizing SSM in New Hampshire, with a very narrow religious exemption, have passed both houses and are in a conference committee; and the issue is coming to a head in other places as well, including Iowa and the District of Columbia.
In the latest letter we clarify our proposal for exempting organizations and individuals who object to facilitating a same-sex marriage, to provide that the exemption may be overridden in cases where the marrying couple cannot obtain similar services from another source and the inability to obtain the services causes "substantial hardship." In some sparsely populated rural areas, one can imagine all of the service providers (caterers, photgraphers etc.) in a large geographic area refusing to provide services to a same-sex couple marrying. We think this will happen infrequently, and we emphasize that the hardship the couple faces must be substantial, "not mere inconvenience or symbolic harm." We also say that clerks or other government officials cannot refuse to issue a marriage license, and thus block the marriage, "if another government official is not available and willing to do so." Speaking for myself, I think that these clarifications balance the conflicting interests properly and also increase the chances that an exemption extending beyond churches to religious non-profits and commercial service providers will pass.
Tuesday, April 28, 2009
Cardinal Rigali Also Endorses Pregnant Women Support Act
Cardinal Rigali, as chair of the U.S. bishops' committee on pro-life activities, has written a letter to all members of the House urging that they vote for the Pregnant Women Support Act, the bill largely developed by Democrats for Life that was recently reintroduced in both houses.
The letter, sent Friday, noted that "in a society where disagreements on abortions and the rights of the unborn child seem persistent and intractable, there are some statements that almost everyone can endorse."
The cardinal continued: "First, the fact that over a million abortions take place every year in this country is a tragedy, and we should at least take steps to reduce abortions.
"Second, no woman should ever have to undergo an abortion because she feels she has no other choice, or because alternatives were unavailable or not made known to her. . . ."
The letter explained some points of "life-affirming support" provided for pregnant women through this act, including: the elimination of "pregnancy as a 'preexisting condition' that can be used to deny health coverage for women; grants to support centers providing alternatives to abortion; assistance encouraging colleges and universities to provide support for pregnant and parenting students."
The act also includes increased support for adoption programs and services for pregnant women at risk from domestic violence.
Friday, April 24, 2009
SSM and Religious Liberty: Response to Dale Carpenter
In response to the proposal of four of us for a broad religious-liberty exception in same-sex marriage bills in Connecticut and elsewhere, Dale Carpenter at the Volokh Conspiracy welcomed but also raised some questions about our proposal. Below is our response, which I expect will be up soon at the VC. (Note that the governor today signed the Connecticut bill, which did broaden the exemption substantially for nonprofit religious organizations but didn't explicitly protect individuals like the wedding photographer who might refuse to photograph a same-sex marriage ceremony.).
+++++++++++
Dear Dale,
Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.
At the outset, just a few words about the necessity for religious-liberty protections. We agree with most of what Doug Laycock says on that score. The memo accompanying our proposal details the range of conflicts that have arisen or may arise. You're right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection. Nevertheless we believe that same-sex marriage increases the risks to religious liberty. Some of the effects are direct. It's partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners. Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct. See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS's limits on holding leadership positions). Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination -- or committing marital-status discrimination, if they act based on an objection to an individual's having entering into a same-sex marriage.
In addition to the direct effects in the marriage-related contexts, there are spillover effects in other contexts such as employment or adoption. SSM with weak religious-liberty exemptions increases traditionalists' exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts. This is in part because it might (as you suggest) weaken the public regard in general for religious liberty. But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state "RFRAs"), that require a compelling interest to override religious freedom. Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions. This was precisely the Supreme Court's logic in the Bob Jones University case: the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status. Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities' argument -- a meritorious argument, as you've said -- that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.
Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state's policy in general is to value religious liberty as well as nondiscrimination norms. It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere. And it's in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.
On your questions about interpretation of our proposal:
1. Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven't protected them). We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose "substantive (as opposed to symbolic) hardship on married gay couples and families." But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption. If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that's not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more.
We also think that a hardship exception to a religious exemption should mean real "hardship" as opposed to mere inconvenience. To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side. So we agree with you that the devil is in the textual details here, and we'd be interested in hearing your proposed standard.
2. We agree that a religious exemption should not protect harassment, provided that the definition of "harassment" is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches. We don't think the language "refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid" can plausibly be read to protect active harassment as opposed to, in Doug's words, the right to be left alone.
3. We wouldn't expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them. Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.
4. Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs. Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent. For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled. We think that conflicts of this sort are no more likely today.
Robin Fretwell Wilson, Carl Esbeck, Rick Garnett, and Tom Berg
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