There should have been a political deal to be struck here. But the hardliners
on either side are not much interested in it. If religious conservatives use
religious liberty concerns only to argue against recognizing same-sex marriage
at all, and don't shift the emphasis to exemptions until it is clear they have
lost on the marraige issue, it will be too late. Why should the gay rights
movement strike a deal with an interest group they have already defeated? The
time to bargain is when each side still has bargaining power.
Boerne makes the deal harder to strike. Congress could repeal DOMA, but it
could not enact a floor of religious liberty protections nationwide. Those
will have to be enacted or litigated state by state. But national groups on
both sides could jointly endorse the repeal of DOMA and a model state bill that
provides for same-sex marriage and generous religious exemptions in the same
legislation. The religious supporters of same-sex marriage would be the ideal
middle-persons to broker such a deal.
Unlike Chip, I think the exemptions should include individuals and small
businesses providing personal services -- IF, AND ONLY IF, those services are
readily available elsewhere in the community. Those exemptions do not prevent
gays and lesbians from living their own lives and values; the modest
inconvenience and personal affront imposed do not balance against requiring an
individual to violate a deeply held conscientious commitment.
Quoting "Ira (Chip) Lupu" <icl...@law.gwu.edu>:
> For a number of years, religious conservatives have been using these
> religious liberty arguments as a sword (a club might be a better
> word) to buttress political campaigns against same-sex marriage.
> Roger Severino's article fits that model -- he included over-the-top
> "threats to religious liberty" (like "hate speech" prosecutions of
> pastors for anti-gay sermons -- Roger never mentioned that U.S. law
> would firmly preclude that) -- along with many other more realistic
> threats as a means to argue against same-sex marriage and other gay
> rights, and that set of arguments made its way into the political
> debate in California and elsewhere.
>
> Now that the winds have started blowing the other way (backlash to
> Prop 8, Iowa court ruling, Vermont legislation, legal results in
> cases involving commercial enterprises and public accommodations),
> religious conservatives want to use religious liberty as a shield.
> With respect to legitimate claims of right (sermons by pastors, faith
> community selectivity about who may get the sacrament of marriage),
> virtually no one on this list or elsewhere wants to break that
> shield. But religious conservatives also want discretionary political
> accommodations, such as exemptions from laws governing adoption
> agencies, employment practices by government contractors, and
> conditions of access to publicly subsidized benefits.
>
> So my question is this -- are the proponents of these exemptions
> really interested in "live and let live"? Or is this just "let us
> live" and we'll keep fighting against the right of others to live in
> equal dignity? If the latter -- this is one-way toleration -- it
> deserves no respect. If the former, I think that people need to see
> some evidence of good faith. So how about these for starters: In
> explicit exchange for carefully crafted exemptions for religious
> organizations and communities (not landlords and doctors and
> photographers), those communities promise to support repeal of
> federal DOMA, repeal of state DOMA's, non-interference by the U.S.
> House of Reps with same-sex marriage policy in DC, and promise the
> end of opposition to the extension of same-sex marriage (no more Prop
> 8's).
>
> Is there a political deal that can be struck here? (I could support
> it.) Or is all this just a one-way demand for respect?
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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