Legal scholars on religious liberty recommend religious-liberty exemptions for D.C.'s proposed marriage-equality legislation

10/26/09 Mirror of Justice:

Law professor Robin Fretwell Wilson is a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts. As legislatures considered marriage-equality legislation or the prospect of such legislation, Wilson and other scholars on religious liberty sought specific protections for religious liberty. They sent letters with their recommendations to state legislators or governors in

• Connecticut (here)
• New Hampshire (here and here)
• New York (here and here)
• Iowa (referenced at footnote 6 here)

The scholars include Douglas Laycock, Rick Garnett, Michael Perry, and Tom Berg. Wilson has also recently urged Maine's governor to consider the recommendations in an October 19th op-ed.

Law professor John Culhane responded to the recommendations in a four-part series at this site, and so have Ira C. Lupu and Robert W. Tuttle in this article.

Wilson and her colleagues have again recommended increasingly nuanced, model language for religious-liberty exemptions. Just before today's D.C. hearing on the Religious Freedom and Civil Marriage Equality Amendment Act of 2009, they sent a letter to D.C. Council Chair Vincent Grey. In this op-ed, Wilson identifies these religious-liberty protections missing from the legislation:

-- It provides no meaningful protection against a loss of government benefits for refusing to recognize same-sex marriages.
-- It provides no meaningful protection for individual dissenters (other than authorized celebrants) who have a religious objection to facilitating same-sex marriage ceremonies, such as caterers, musicians and photographers.
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-- It provides no meaningful protection to religious organizations from private lawsuits under the city's anti-discrimination laws.

She also repeats the warning of her October 19th op-ed that without the recommended protections, "individuals and groups will face a cruel choice: their consciences or their livelihoods."

I am not surprised at this latest development. As soon as it was introduced, the D.C. legislation looked vulnerable to just this form of criticism.

Here are links to recent scholarly commentary:

• Ira C. Lupu and Robert W. Tuttle, Same-Sex Family Equality and Religious Freedom. NW. J. L. & SOC. POL'Y, forthcoming, posted 10/21/09 at Social Science Research Network;
• John Culhane, Same-Sex Marriage and Religious Liberty (Aug. 2009);
• 05/24/09 post by Rick Garnett
• 05/06/09 posts by Dale Carpenter and Ira C. Lupu:
• Exchange among Douglas Laycock, Rick Garnett and Geoffrey Stone on Civil Unions and Religious Liberty (May 2009)