Saturday, May 16, 2009

Exemption for Religious Foes Of Gay Marriage Debated

05/16/09 Washington Post (Sexual Orientation and the Law Blog):

The Washington Post quotes law professors Robin Wilson and Ira Lupu without considering their disagreement about whether religious-liberty exemptions should extend to individuals engaged in wedding commerce. Lupu says that he opposes such exemption for"for-profit business owners, such as photographers, caterers, and others in the wedding trade." It "would represent a slap in the face to same-sex couples, and would be impossible to administer." But "[c]onscience protections are a thoroughly American idea," Wilson argued in a recent column in the Los Angeles Times. Since Colonial times, she says, "legislatures have exempted religious minorities from laws inconsistent with their faith."

Mary Bonauto, civil rights project director for Gay and Lesbian Advocates and Defenders, told the NY Times that, far from a "slap in the face to same-sex couples," the broad religious-liberty exemption New Hampshire Governor John Lynch seeks "is not a big deal." Moreover, law professor Douglas Laycock, who supports gay marriage, identifies "parallel claims on society" that gay couples and religious opponents make to protect their respective, fundamental liberties.

Is Lupu right that religious-liberty exemption "would be impossible to administer" for individuals engaged in the wedding business? Although law professor Dale Carpenter finds no substantive reason to add religious-liberty exemptions to same-sex marriage legislation, he accepts them as a a matter of political expediency. He recommends a "hardship exemption" to balance the burdens to same-sex couples and religious-conscience objectors. "All that may be needed to deal with these hardship cases is an explicit provision in the marriage context applying the compelling-interest test common in state statute and decisional law."

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