05/26/09 Mirror of Justice (source: ADF Alliance Alert)
Several law professors - all scholars on the First Amendment and religious liberty - have again asked a state legislator to consider their proposal for a religious-liberty exemption in marriage-equality legislation. On May 8th, law professor Robin Wilson and her colleagues (who include law professors Tom Berg and Rick Garnett) recommended their proposal to New York Assemblyman Sheldon Silver. On May 12th, the New York Assembly approved Gov. David Paterson's same-sex marriage program bill (A7732 / S4401). It does not include the recommended exemption.
On April 30th, these scholars submitted the initial version of their proposal to the Connecticut Speaker of the House, Christopher Donovan. They advocated an exemption not just for religious institutions, but also for religious individuals, such as wedding photographers and marriage counselors, who sell services related to marriage. Connecticut's new marriage equality law included the substance of their recommended exemption with respect to religious institutions, but not also with respect to these individuals. (See sections 17-19 of Connecticut Public Act No. 09-13. Section 19 extends exemption to religious adoption and foster-care agencies that do not receive government funding; the religious-liberty scholars favor exemption for such agencies especially when they do receive government funding.) On May 1st, they recommended the same version of their proposal to New Hampshire Governor John Lynch, tailoring it to that state's circumstances.
The latest version of their proposal differs from the initial version in one important respect. Like the initial version, it provides exemption not just to religious institutions, but also individuals who own small businesses that sell services related to marriage. However, the latest version also provides exceptions to the exemption, when same-sex couples would otherwise face "substantial hardships." The new allowance of hardship exceptions may be the result of a discussion between proponents and law professor Dale Carpenter. Or it may be the result of acknowledging the greater likelihood in New York of substantial hardships to same-sex couples than in Connecticut, a geographically "compact" state where, as Douglas Laycock suggests, they have less inconvenience to reach alternative service providers.
Governor Lynch threatened to veto New Hampshire's marriage equality legislation unless legislators included a religious-liberty exemption (HB75) along the lines of the scholars' April 30th / May 1st proposal. (HB75 does not go as far as Robin Wilson and her colleagues would like, because it does not extend protection to individuals who sell marriage-related services.) But that demand has prevented the marriage-equality legislation from reaching Lynch's desk as the legislature tries to craft a compromise. Law professor Rick Garnett has just explained why even liberals should reconsider their opposition to religious-liberty exemptions, even if he was not expressly thinking of New Hampshire State Representative Steve Vaillancourt, who claimed that HB75 "would allow discrimination to be written into state law." In New Hampshire, "House and Senate negotiators," the 05/28/09 Nashua Telegraph reports, "will meet and try to come up language acceptable to Lynch, as well as the House and Senate majorities by the time the Legislature meets in session next Wednesday."
The NY Times recently reported that Douglas Laycock,"a foremost analyst of First Amendment religious liberty questions," urged New York officials to include a religious-liberty exemption. He said that it was not “in the interest of the gay and lesbian community to create religious martyrs when enforcing the right to same-sex marriage.” That was the same language he used when he wrote to Connecticut House Speaker Donovan, expressing support for the religious-liberty exemption that Robin Wilson and her colleagues had proposed.
Law professor Michael Perry has posted a May 22nd letter by Laycock to Governor Lynch. Writing on behalf of Perry and several others, Laycock urges Governor Lynch not to retreat from providing religious institutions and their employees the protection of a religious-liberty exemption, even though he favors a broader exemption that would also protect certain individual religious-conscience objectors. He also mentions a May 22nd analysis of the favored exemption. The analysis was prepared by law professor Tom Berg, who, with Robin Wilson, has been among the legal scholars advocating the broader exemption. Unfortunately, I am unable to identify a link to Berg's analysis.
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Commentators, Subjects and Cases
- 14th Amendment
- Act To End Discrimination in Civil Marriage and Affirm Religious Freedom
- Adar v. Smith
- Adoption
- Affaire de AFER
- Alan Brownstein
- Alex Kozinsky
- Alliance Defense Fund
- Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization
- Amy Margolin
- Andrew Koppelman
- Andrew Pugno
- Angelique Naylor
- Ann Ravel
- Anthony Romero
- Appling v. Doyle
- Arthur Leonard
- Asylum
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- Baker v. Vermont
- Balde v. Alameda Unified School District
- Benson v. Alverson
- Beth Robinson
- Bishop et al v. State of Oklahoma et al
- Bobbie Wilson
- Bonilla v. Hurst
- Boseman v. Jarrell
- Brad Sears
- Brenda Cox
- Brian E. Gray
- Brian Raum
- Brian W. Raum
- Burns v. State of California
- California Assn. of Retail Tobacconists v. State of California
- California Civil Marriage Religious Freedom Act
- California Family Protection and Marriage Recognition Act
- California Marriage Equality Act Initiative
- California Marriage Recognition and Family Protection Act
- California State Bar
- Calvin Massey
- Camilla Taylor
- Campaign for California Families
- Campaign for California Families v. Newsom
- Carl Esbeck
- Carlos Ball
- Carlos Moreno
- Chad Griffin
- Chai Feldblum
- Chambers v. Ormiston
- Charles Cooper
- Charles S. Merrill v. IRS
- Christopher Krueger
- Civil Unions
- Cleveland Taxpayers for the Ohio Constitution v. City of Cleveland
- COBRA
- Cole v. Arkansas
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- Colorado Civil Union Benefits and Responsibilities Act
- Commonwealth of Massachusetts v. U.S. Dept. Health and Human Services
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- Custody
- D.C. Marriage Initiative of 2009
- D.C. Religious Freedom and Civil Marriage Equality Amendment Act of 2009
- D.C. Stand for Marriage
- Dale Carpenter
- Dan Lungren
- Darren Spedale
- David Blankenhorn
- David Boies
- David Codell
- David Cruz
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- Dean v. District of Columbia
- Deb Kinney
- Deborah Wald
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- Goodwin Liu
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- Hollingsworth v. Perry
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- Irving Greines
- J.B. Van Hollen
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- Mary Bonauto
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- Nan Hunter
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- Nelson Lund
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- New York Marriage Equality Act
- O'Darling v. O'Darling
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- Ocean Grove Camp Meeting Assoc. v. Vespa-Papeleo
- One Iowa
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- Pacific Justice Institute
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- Parenting
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- Patricia Cain
- Paul Brest
- Pennsylvania Marriage Equality Legislation
- People v. Frierson
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- Peter Scheer
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- Religious Freedom Protection and Civil Union Act
- Religious Liberty Exemption
- Respect for Marriage Act
- Restore Equality 2010
- Retroactive v. Not Retroactive
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- Rhode Island Marriage Equality Bill
- Rick Garnett
- Robert George
- Robert Nagel
- Robin Fretwell Wilson
- Robin West
- Romer v. Evans
- Sam Marcosson
- Schalk and Kopf v. Austria
- Separation of Powers
- Shannon Minter
- Shelley Ross Saxer
- Shineovich v. Kemp
- Smelt v. United States of America
- State v. Carswell
- Stephen Bainbridge
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- Stephen Page
- Stephen Reinhardt
- Steve Mayer
- Strauss v. Horton
- Strict Scrutiny
- Super DOMA Amendment
- Susan Sommer
- The Domestic Partnership Benefits and Obligations Act of 2009
- Theodore Boutrous Jr.
- Theodore Olson
- Therese Stewart
- tobias Wolff
- Tom Berg
- U.C. Berkeley Law Professor Jesse Choper Choper
- U.S. v. Carolene Products Co.
- Uniting American Families Act of 2009
- Varnum v. Brien
- Vermont Act to Protect Religious Freedom and Promote Equality in Civil Marriage
- Vikram Amar
- Vivian Polak
- Washington Referendum 71
- William Araiza
- William Eskridge
- WVForMarriage.com
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