Thursday, May 28, 2009

Legal scholars’ latest letter recommending a religious-liberty exemption in marriage equality legislation - the new "substantial hardship" exceptions

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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