to my questions about the meaning and potential applications of the proposal that he and four other academics have advanced for reconciling religious-liberty concerns and same-sex marriage. Here is his response:
I wrote one of the two letters that Dale Carpenter references in his post on the same-sex marriage legislation in Connecticut. Let me say a few things by way of background, and then respond to his four specific questions.
I wrote separately from the others, and I speak only for myself here. I wrote separately because I support gay rights and same-sex marriage and I also support religious exemptions; in my view, these are parallel protections for quite similar claims to individual liberty in matters essential to personal identity.
We may also have a different sense of the magnitude of the problem. Compelling a person or religious organization to do things in violation of conscience can be devastating to the individuals affected. There are several high profile cases around the country, but the total number of such cases that have come to public attention is not large, and the lack of a marriage case per se in five years in Massachusetts is encouraging. Of course, Massachusetts is also notorious for forcing Catholic Charities to entirely withdraw from adoption services because of its conscientious objection to placing children with same-sex couples..
The number of people who think same-sex marriage is morally or religiously wrong is large. But the percentage of those people who feel sufficient personal responsibility to assert a conscientious objection claim rather than facilitate what they perceive to be the immoral acts of others is considerably smaller. The percentage of those who are in an occupation where the issue arises for them is much smaller still. The percentage of those who will turn away business in the name of conscience is somewhat smaller still. And as same-sex marriages becomes more familiar and accepted, each of these percentages should fall. On the other side, that portion of the gay and lesbian community that is more interested in making examples or provoking legal confrontations than in living their own lives may also be rather small. For all these reasons, I don’t find it surprising that there are a relatively small number of cases in which conscientious objection to facilitating same-sex marriage is actually asserted. Of course that means that the cost of granting exemptions is also small, while the benefit to the individuals who need the exemption remains great.
I have addressed the implementation of exemptions as some length in the Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony M. Picarello, and Robin Fretwell Wilson, eds.) (Rowman & Littlefield 2008). As that publication makes clear, I think that any right to exemption cannot be absolute. An individual who occupies a blocking position – who is the only person reasonably available to provide a needed service – is not in my view entitled to an exemption. Similar issues might arise in a community in which many service providers are conscientious objectors, or a needed service is in shortage. In my view, this proposed exception to the exemption language is a specific application of the compelling interest test.
The statutory language that the other letter proposed and that I endorsed did not include this exception to the exemptions. That is because we were contacted very late in the legislative process; the letters and the proposed amendment were drafted in hurry, and may well need some tweaking. I endorsed the proposed language because in a legislative debate, it is essential to rally around a single proposal; negotiation and amendments could come later if we got anyone’s attention. And I think the exception to the exemptions are unlikely to arise very often in a state like Connecticut, which is compact, urbanized, and politically liberal.
With that background, let me turn to Dale’s specific questions:
1. The state’s interest in insisting on equal service for all is at its maximum in state offices, and the individual’s claim to private conscience is considerably weakened when he is acting in an official capacity. And the state is a monopolist for things like licenses. So state officials will often be in a blocking position, and in the context of governmental services, even a minimal blockage is a serious problem. So I think a clerk who does not want to issue a marriage license must have a co-worker immediately available to issue that license at the same window at the same time, without requiring the couple to stand in a new line.
On the other hand, a judge who performs an occasional wedding, usually for a friend or acquaintance, is acting much more personally. She is empowered by her office to perform weddings, but she is not obligated by her office to perform weddings; she is not remotely in position to block anyone from getting married, or even to cause inconvenience, because the request to perform the wedding typically comes well in advance of the date. The reality is that a judge has broad discretion to perform a marriage or not, and I would not allow a claim of discrimination against same-sex marriages to interfere with that discretion.
2. It was certainly not my intention to protect harassment. What counts as harassment must be defined in light of free speech and free exercise; not every expression of disapproval can be defined as harassment. But the targets of such disapproval have the right to stop the conversation and insist that it not be renewed. The purpose of exemptions is to protect people who conscientiously object to personally facilitating a same-sex marriage; these people just need to be left alone. Those who want to affirmatively interfere or harass present a very different and less defensible claim.
3. In my view, the right to exemption for conscience should be quite general, subject to the compelling interest test as developed and applied in particular factual contexts. So there should not be much difference between the right to exemption from same-sex marriage laws and the right to exemption from gay rights laws more generally, and issues of coordinating the two exemptions should rarely arise. In the real world, I would interpret each set of exemptions to protect as broad a set of conscience claims as the statutory text permits, subject to the constraint that the conscientious objector cannot inflict significant harms on others.
4. Again, I think the right to conscientious objection should be general, and so of course it should include similar objections to other controversial marriages, although these claims are likely to be even scarcer than claims of conscientious objection to facilitating same-sex marriages.
I am committed to a book project this summer and may not reply to all follow up questions. But as I mentioned, my answers to implementation questions are largely set out in the book.
I'm grateful for this characteristically reasonable and thoughtful response. It leaves some issues of interpretation and application on the table, but helps clarify what many of those issues might be. We disagree in particular on the significance of the Massachusetts Catholic Charities case, which I believe is not attributable to SSM, but to a 1989 antidiscrimination law that does not turn on the existence of a marriage. We appear to disagree on whether a state employee, in her capacity as an employee, should ever be able to get a religious-liberty exemption from performing what are otherwise her duties to the public.
But we agree on the general principal, I think, that for private parties (including individuals, like wedding photographers, and groups, like the Knights of Columbus) fairly broad exemptions should be available to protect religious scruples when the exemptions won't impose any substantive (as opposed to symbolic) hardship on married gay couples and families. How you draft an exemption to implement that general principle -- no more, no less -- is the hard part.