Religious Liberty and SSM: A Response to Concerns in Illinois

The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres.  The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation.  (See, for example, a link to some of their letters here.)

There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty.  (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill.  That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.

That starts to change as of today in Illinois.  Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.”  The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me.  The letter was coordinated with the help of Third Way, especially its Director of Social Policy & Politics (and my former student at the University of Minnesota Law School), Lanae Erickson Hatalsky.

Here’s a precis of our response to religious-liberty concerns about the proposed Illinois marriage bill: 

(1) For reasons we explain in some detail in the letter, we believe that recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill.  The famous and oft-cited cases in which such conflicts are said to exist arise entirely from pre-existing antidiscrimination law.  Antidiscrimination law in Illinois and elsewhere includes protection for religious liberty.  These protections vary somewhat in scope and degree in the states, but a same-sex marriage bill creates no need to adjust the degree of protection because it provides no additional cause of action for married couples and adds nothing significant to existing conflicts. 

I don’t know whether the religious-liberty scholars have general libertarian objections to antidiscrimination law as a whole or whether their concerns arise principally in proposals to let gay couples marry.  But to the extent there are general libertarian concerns with antidiscrimination law (concerns I share), these are appropriately addressed in the context of proposals to amend such laws.  To the extent distinct issues may be thought to arise in the context of a same-sex marriage bill (for example, some have expressed fears related to effects on church doctrine, religious authorities being required to officiate at gay weddings, and the use of religious facilities for the marriage ceremony), these conflicts are already addressed explicitly in the Illinois bill. 

(2) But even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad.  It would exempt from anti-discrimination law not only religious authorities and quasi-religious facilities, but would also exempt for-profit, non-religious businesses, and government officials. It would apply not only to the marriage ceremony, but also allow objectors forevermore to refuse to “treat as valid” any marriage they may disapprove, an exemption so broad and uncertain that it has little if any precedent in American marriage or antidiscrimination law.  In response to concerns that their proposal would allow inns, restaurants, and other businesses to refuse to serve interracial couples, the religious liberty scholars offer to amend their proposal to make sure that it would not apply to such marriages.  This would effectively mean that married same-sex couples alone would be exposed to discrimination.  But that undercuts the very purpose of protecting gay people from widespread discrimination and runs up against constitutional injunctions against singling out gays and lesbians for disfavored treatment, a theme that runs through Romer, Lawrence, and Windsor.    

No state has adopted anything like the spacious “marriage conscience protection” suggested by the religious-liberty scholars for the past few years.  It is not needed as a matter of policy; whether some explicit additional “protection” is needed as a matter of politics, to give cover to pro-SSM legislators, is a different question.  Recognizing same-sex marriage has not produced a deluge of lawsuits or a reign of anti-religious bigotry.  It is possible to protect legitimate religious liberty and at the same time to allow all kinds of marital practices that one or another religious doctrine objects to, like inter-religious marriages, second marriages, civil marriages performed at the courthouse rather than at the cathedral, interracial marriages, and divorces.  None of these reforms in marriage law necessitated special protection for religious liberty stuffed into the bills authorizing them.  There is no evidence that same-sex marriage is any different, much less that there is a special justification for exposing married same-sex couples to discrimination by for-profit businesses and government officials.  And now there is a group of scholars willing to say so on the record, addressed specifically to pending state legislation.