Monday, November 9, 2009

A Real-Life Conflict Between Religion and Marriage Equality

11/09/09 WordinEdgewise, by law professor John Culhane:

John discusses a FoxNews report of a Massachusetts employee, Peter Vidala, who was fired for his disparaging remark to a colleague when she told him that she had married her same-sex partner. The employee remarked that her "homosexuality" is bad stuff. He may file a complaint with the EEOC. John doesn't think that the fired employee's claim would have merit. John also examines the consequence of extending, by analogy, a recommended, religious-liberty exemption to Vidalia's case.

As readers of this site know, Robin F. Wilson and Douglas Laycock are co-editors of Same-Sex Marriage and Religious Liberty: Emerging Liberties (2008). Together with other constitutional scholars, they have recommended and advocated specific religious-liberty exemptions for marriage-equality legislation. (Here is the proposal.) Among their recommendations, they favor exemption for individuals employed in the wedding business who claim that they would violate their religious principles if they afforded same-sex couples access to their services. These individuals include wedding florists, caterers and photographers who own their own businesses, and their employees.

John favored this site with a four-part series, Marriage Equality and Religious Liberty. With respect to Vidalia, he asks about a perceived implication of exempting individual wedding merchants:
What would be the result under the religious exemption laws that some scholars flog so relentlessly as needed where marriage equality becomes law? Not so clear, I would say. If religious objectors involved in commerce can “step aside” and refuse to facilitate same-sex marriages (as by declining to cater a gay wedding), can they also be shielded against anti-discrimination laws for expressing a view against gay marriages? Doesn’t such expression have less impact than a refusal to deal? And if the laws could potentially apply to that situation, then let’s pick apart Vidala’s comments to see whether they were based only on the marriage (protected, potentially, under this view), or on a broader discomfort with homosexuality (not protected).
I am doubtful about John's perception of a slippery slope. It's one thing to exempt religious-conscience objectors who sell wedding services. It's quite another to conclude that employees of any other type of employer might equally qualify for the same type of exemption. Suppose employees generally enjoyed exemption from anti-discrimination law to repeat Vidala's example of discriminatory speech (or worse.) If such discriminatory speech were generally allowed, and became common enough (a plausible scenario), wouldn't it have a far-reaching impact on just the kind of discrimination against gays and lesbians that anti-discrimination laws have been designed to prevent or remedy? The consequences here would appear to present a compelling reason for the state to bar discriminatory speech in the workplace that targets gays and lesbians, whether or not that speech also involves on marital status.


John Culhane said...


You're right that the lawsuit I see as possible is quite unlikely. I raised the issue in part to point out what I see as the philosophical and practical difficulties of limiting "conscientious objector" status to events and decisions "closely tied to the marriage ceremony" itself, as Robin Fretwell Wilson puts it. In addition to the difficulty in defining what's close enough to "count," there's (for me, anyway) the added issue of why objections to marriage are any more or less valid that objections to anything else about the committed lives of same-sex couples.

Michael Ginsborg said...


Ira Lapu and Robert Tuttle have recently said that the "Constitution’s Free Exercise Clause does not require the accommodation of commercial or public actors who have religious objections to serving same-sex couples." (Same-Sex Family Equality and Religious Freedom, at
Providing the exemption to individual wedding merchants therefore depends on discretion by
state legislators. New Hampshire came closest to adopting this type of exemption in its marriage-equality legislation, but, as far as I know, it is not part of any marriage-equality law.

Of course, I appreciate your elaboration of your compelling reasons against allowing the exemption in the second part of your series. (

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