Wednesday, August 5, 2009

Part IV in Professor John Culhane's series on marriage equality & religious liberty: Other Contexts, The End of Religious Marriage(?), Final Thoughts

Between August 3rd and August 6th, this site will host a series of daily posts (see also Part I, Part II, and Part III) by Professor John Culhane discussing the conflict between marriage equality and religious liberty. On August 7th, Professor Culhane will respond to comments to his posts.

John G. Culhane is Professor of Law at Widener University School of Law and Director of the nationally ranked Health Law Institute. He also holds the title of Lecturer at the Yale University School of Public Health. He blogs about law, LGBT legal, social and political issues, public and private health law issues, and many other subjects both weighty and frivolous at

Professor Culhane has written more than two dozen articles for legal journals on a similarly wide range of topics, and is currently editing and contributing to a book on the public health dimensions of charged political issues. He has also been regularly featured in national and local broadcast and print media, including National Public Radio, The Philadelphia Inquirer, Dissent Magazine, and Voice of America. In 2008, he was featured in an award-winning, feature-length documentary about the events of September 11 and Hurricane Katrina, entitled “America Betrayed,” from Eclipse Entertainment.

At Widener, Professor Culhane has won three Outstanding Faculty awards, and in 2005 became the first to receive the Douglas A. Ray award for Distinguished Scholarship.

Marriage Equality and Religious Liberty
Part IV: Other Contexts, The End of Religious Marriage(?), Final Thoughts
The patient reader who’s followed the preceding posts might now wonder if there are any cases, aside from the core where religions get to decide whom to marry, where I’d allow the religious exemption. There are.

The first is clearly set out and well-defended by Chai Feldblum in her contribution to Same Sex Marriage and Religious Liberty, entitled “Moral Conflict and Conflicting Liberties.” Where a (usually religious) belief community sets up enterprises – like schools, day care centers, and summer camps – to inculcate certain values, they should enjoy an exemption from antidiscrimination laws (not limited to those recognizing same-sex marriages), as long as they are clear in their beliefs that homosexuality is wrong. And they must enroll only those who wish (for themselves or their children, I guess) to be inculcated in those beliefs, to dispel any idea that the enterprise is just a convenient vehicle for excluding gays and lesbians.

Another exemption I’d support is for religiously affiliated organizations, assuming that the religion with which they’re affiliated views homosexuality or same-sex unions as immoral. I’m not talking about employment (except maybe at the highest levels, per Feldblum) nor benefits (and why should benefits be tied to marriage in the first place, I often wonder?), but about the kinds of interactions that would be particularly hard for such an organization to countenance. These would need to be debated and then spelled out, but would include – to be specific – adoption placement. There are typically many public and private adoption services, and I can’t see harm to a same-sex couple (or individual) in being directed to an organization that will – let’s face it – work harder to find a suitable placement for them than, say, Catholic Charities. Surely here respect for both sides counsels the exemption.

Generally, I wouldn’t let the Knights of Columbus, or any other fraternal organization – or even a religious organization, for that matter – refuse to rent space to a same-sex couple for their wedding if they otherwise made the place available to all comers. Either swim in the stream of commerce, or get out of it. (The Ocean Grove conflict comes to mind here. I spent a few days there last week (taking a break, not doing research on the case!), and found it to be an odd and somehow invigorating mix of families, seniors, obviously religious folk, and members of the gay and lesbian community. Here’s my iPhone photo of the beach pavilion that’s at the center of the controversy. The link above is to a very good and nuanced NPR story discussing Ocean Grove, and photo case, and others.)

One final thought: In writing and thinking about this issue, I found myself inclined more than ever to agree with the position that it’s high time to separate the civil and religious institutions of marriage. Laycock makes this point with deadly efficacy toward the end of his Afterword. I think he has to be right in thinking that this separation would go a long way towards calming the fears of some members of faith communities who see gay “marriage” as sinful. If everyone has a civil union, and if these objectors can rest secure in the knowledge that the couple isn’t married in their (and, presumably their church’s) eyes, the small number of conflicts might decrease to the vanishing point.

I leave this set of posts with the firm conviction that the areas of true conflict will be few, and that reasonable people of good faith can reach accommodation – usually without the need for the heavy hand of the law.

1 comment:

BobN said...

(and why should benefits be tied to marriage in the first place, I often wonder?)

As my people say, but they are, Blanche, but they are.

It's very disheartening to continue to read such superficial "analysis" of this issue. Florists... it's not about freakin' florists. It's about access to, and participation in, the countless faith-based and faith-affiliated service agencies that exist in this country and which receive hundreds of millions of dollars in public contracts to provide social services.

And more important than that, it is about a "religious accommodation" which finds its expression on one and only one form: discrimination against gay people. I don't hear about Catholic Charities wanting the right to refuse to recognize the divorce of an employee when providing health care coverage, for example. We no longer countenance discrimination by these organizations against people of other faiths or of no faith or against people of the faith in question who fail to meet the requirements of that faith.

There are existing rules that cover these issues and have successfully dealt with much more theological vexing issues than homosexuality over the decades. Any new "exemptions" are nothing but the institutionalization of anti-gay bigotry.

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