Professor Berg writes: "Without significant exemptions, the advent of same-sex marriage in a state increases the prospect that non-profit religious schools and social services, even those with religious content throughout their programs, will be punished if they refuse to hire openly gay people as teachers or counselors or to pay benefits to their partners."
Up until the phrase "or to pay benefits to their partners," I'm afraid I can't follow the logic. A single gay person could already attempt to pitch a fuss about being refused employment by a non-profit religious school or social service. How does the advent of same-sex marriage increase the likelihood that such challenges will succeed? If a gay person is denied a job on the basis of sexual orientation, what difference does it make whether he's single or married? Benefits to spouses may be a different issue. If a religious school or social service employs a gay person, that person is legally married, and the relevant state recognizes the marriage, then can someone suggest a legal argument under which the employer could legitimately refuse to subsidize health insurance for the gay spouse while doing so for a heterosexual spouse? If not, what's the best argument for an exemption? What if a heterosexual spouse who was seeking benefits subscribed to religious doctrines that were incompatible with those of the religious employer. Would an exemption be justified under those circumstances? Why is that different than they gay spouse? _____________________________________ Steve Sanders Attorney, Supreme Court and appellate litigation practice group, Mayer Brown LLP, Chicago Co-editor, Sexual Orientation and the Law Blog Adjunct faculty, University of Michigan Law School (Winter term 2010) Email: steve...@umich.edu Personal home page: www.stevesanders.net > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of > Berg, Thomas C. > Sent: Monday, April 06, 2009 7:45 PM > To: Law & Religion issues for Law Academics > Subject: RE: Americans United: Iowa Supreme > CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United > > I agree that it is extremely unlikely that an objecting > church or clergyperson will be forced to host or perform a > same-sex marriage. But I wouldn't rest this on the argument > that no couple would seek to be married by someone who > doesn't want to marry them. After all, it's a good question > why any couple would want, from all the wedding photographers > available, one "who [in Alan's terms] thinks their > relationship is sinful and is only [conceiving and shooting > the pictures] under threat of legal sanction." To subject > Elaine Huguenin, the photographer, to a legal sanction of > $6,600-plus, all Vanessa Willcock and her partner had to do > was complain to the New Mexico Human Rights Commission on the > ground that they felt "shocked, angered, saddened," and > "fearful" when Elaine told them she didn't do same-sex > ceremonies. It is hard to deny that some gay-rights > proponents want to get antidiscrimination sanctions against > conscientious objectors whose services they wouldn't actually! > want, or need, to use. That may not extend to forcing > houses of worship to marry people, but not because of a > general "live and let live" attitude. > > I applaud Alan's proposal for an exemption in the next > California proposal, but why shouldn't the exemption be > broader? The hypothetical church pressured to perform a > ceremony hardly exhausts the range of religious liberty > issues raised by same-sex marriage. Without significant > exemptions, the advent of same-sex marriage in a state > increases the prospect that non-profit religious schools and > social services, even those with religious content throughout > their programs, will be punished if they refuse to hire > openly gay people as teachers or counselors or to pay > benefits to their partners. It may do this by directly > triggering the obligation to pay spousal benefits, by > changing the legal characterization of a hiring decision from > marital-status discrimination to sexual-orientation > discrimination, or by strengthening the claim that -- like > race in Bob Jones -- there is a "firm [governmental] policy" > against sexual-orientation discrimination in virtually every context. > > ----------------------------------------- > Thomas C. Berg > St. Ives Professor of Law > Co-Director, Murphy Institute for Catholic Thought, Law, > and Public Policy > University of St. Thomas School of Law > MSL 400, 1000 LaSalle Avenue > Minneapolis, MN 55403-2015 > Phone: (651) 962-4918 > Fax: (651) 962-4996 > E-mail: tcb...@stthomas.edu > SSRN: http://ssrn.com/author='261564 > Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice > -------------------------------------------------------------- > -------------- > ________________________________________ > From: religionlaw-boun...@lists.ucla.edu > [religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, > Alan [aebrownst...@ucdavis.edu] > Sent: Saturday, April 04, 2009 6:37 PM > To: Law & Religion issues for Law Academics > Subject: RE: Americans United: Iowa Supreme Court > RulingOnMarriageUpholdsReligious Liberty, Says Americans United > > As a hypothetical question, I think there is an > extraordinarily slight possibility that churches or clergy > will ever be required to host or officiate the marriages of > same sex couples. But this issue isn't being raised as a > hypothetical question. It is being argued as a basis for > denying same-sex couples the right to marry now. I suspect > the reason why some members of this list used terms like > "fear mongering" is because discrimination against gays and > lesbians isn't speculative. It is real, ongoing, and hurtful. > And is frustrating to hear people defend this discrimination > on the basis of such a remote possibility in some future > world that doesn't come close to existing now. > > When I talk to people who are starting to prepare for the > next constitutional amendment on same-sex marriage in > California -- one that will be drafted by proponents of > same-sex marriages -- there is a general consensus that one > of the reasons Proposition 8 passed was that its supporters > convinced people who didn't know any better that there was a > real threat that their pastors and priests would be forced to > marry same-sex couples. Virtually everyone I talk to is > looking for ways to defuse this issue because they think it > is false. No one wants to be married in a church that > condemns their relationship by a member of the clergy who > thinks their relationship is sinful and is only officiating > at the ceremony under threat of legal sanction. > > I am recommending that this new amendment recognizing the > validity of same-sex marriages should include a provision > guaranteeing that no member of the clergy or house of worship > can be required to officiate over or host such a ceremony. I > haven't met a single person who opposes that idea. Many think > it is unnecessary because such compulsion is already > prohibited by the First Amendment. But they still support the > idea because it may make same-sex marriages seem less > threatening to some voters -- and because no one cares about > not being able to get married in a church that condemns their > relationship in the first place. > > Alan Brownstein > ________________________________________ > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To > subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu To > subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > > > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
