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)
  

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.

Debate by University of Chicago Faculty Blog on the appropriate scope of religious-liberty exemptions

On April 26th, the Chicago Tribune published an article on Illinois' proposed Religious Freedom Protection and Civil Union Act. The author, University of Chicago Law Professor Geoffrey Stone, asks, "How does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?" This article gave rise last week to a debate on the proper scope of religious-liberty exemptions, not just with respect to Illinois' civil-unions legislation, but more generally with respect to legalization of same-sex marriage. The University of Chicago Faculty blog hosted the debate:

05/03/09 post by Geoffrey Stone:

Civil Unions: Why Illinois Should Enact H.R. 2234

05/04/09 post by Martha Nussbaum:

[Civil Unions] The Same-Sex Marriage Debate: Reason, or Fear of Contamination?

05/05/09 post by Rick Garnett:

[Civil Unions] Same-Sex Marriage, Civil Unions, and Religious Liberty

05/05/09 post by Douglas Laycock:

Civil Unions: Protecting Gays, Lesbians, and Religious Objectors

05/06/09 post by Geoffrey Stone:

[Civil Unions]: A Reply to Nussbaum

05/06/09 post by Douglas Laycock:

Civil Unions and Religious Liberty: A Response to Stone

05/07/09 post by Rick Garnett:

More on Civil Unions and Religious Liberty

05/08/09 post by Geoffrey Stone:

[Civil Unions]: When Reasonable Isn't Reasonable

05/10/09 post by Douglas Laycock:

Civil Unions: Making Religious Exemptions Work

(In this post, Laycock notes that his "[a]fterword in Same-Sex Marriage and Religious Liberty explores exemptions in greater depth and makes the case for separating legal and religious marriage. He says that "[c]leanly separating [the legal and religious relationships of marriage] would be an elementary application of separation of church and state, and it would take a good bit of the emotional heat out of the same-sex marriage debate.")

Opponents challenging new Maine gay marriage law: Are the religious-conscience objectors gaining momentum?

05/07/09 AP:

Under Maine's Constitution, any Maine registered voter may circulate a people's veto referendum to overturn statutes. "Secretary of State Matthew Dunlap said Thursday that opponents [of same-sex marriage] filed a challenge under the state's 'people's veto' provision. It allows for a referendum to overturn laws if opponents can collect enough signatures."

Source of AP reference: Gay Marriage Watch

The Secretary of State website identifies Mike Heath, executive director of the Maine Family Policy Council, as a proponent of

"An Act to Remove Protections Based on Sexual Orientation from the Maine Human Rights Act, Eliminate Funding of Civil Rights Teams in Public Schools, Prohibit Adoptions by Unmarried Couples, Add a Definition of Marriage, and Declare Civil Unions Unlawful."

Heath tells opponent's of Maine's new marriage-equality law that he will host a 2009 Truth Tour. The Truth Tour begins with Peter LaBarbera's talk on The Zero-Sum Game: How Gay Rights and 'Same-Sex Marriage' Undermine Religious Freedom.

Will religious-liberty objections frame the next round of opposition to legalization of same-sex marriage? The National Organization for Marriage has just launched its "No Offense" Religious Liberty Ad Campaign, based in part on a letter from law "professors Thomas C. Berg, Carl H. Esbeck, Richard W. Garnett, and Robin Fretwell Wilson to the Speaker of the Connecticut House of Representatives (April 20, 2009)." (About the letter, see my 04/21/09 post.) Wilson offers evidence that religious-conscience opponents are not raising "speculative concerns."

Heath engages in ad hominem when he thinks it serves his purpose. See, for example, his digital hoax showing Fidel Castro standing next to Maine Governor Governor John Baldacci. But whether or not he makes ad hominem attacks, Health told the Baptist Press that "a vote on 'gay marriage' -- which will take place either in November or in the summer of 2010 -- would be the costliest and most high-profile people's veto in state history. The Baptist Press also reports that the National Organization for Marriage has pledged volunteers and resources to the referendum campaign.

Source of Baptist Press reference: ADF Alliance Alert

05/08/09 update

05/08/09 LA Times:

LA Times reporter Jessica Garrison and Maureen Dolan address the likely impact of recent developments on California if the state Supreme Court upholds Prop. 8. They also report that "Heath said he expects Maine to be influenced by California: 'The fact that Prop. 8 passed has been a source of encouragement.'"

05/09/09 Concord Monitor:

"The deadline for opponents to collect at least 55,087 signatures will probably fall in mid-September, about the time the same-sex marriage law is due to take effect. However, the law would be stayed as soon as the signatures are submitted for review by election officials. And the timing of when petitions are turned in will determine whether the referendum can be scheduled for this November or June 2010." Other "People's Veto" propents now include Marc Mutty of the Roman Catholic Diocese and Bob Emrich, founder of the Maine Jeremiah Project.

05/15/09 update

05/15/09 Gay Marriage Watch (quoting the Portland Herald Press):

"The three groups have filed applications with the Secretary of State's Office for a statewide referendum on the law. The Secretary of State is expected to approve the wording of a ballot question next week, after which the groups may begin collecting the 55,087 signatures needed to put the so-called people's veto before voters."

05/20/09 update

05/20/09 Bangor Daily News (Source: Gay Marriage Watch):

"AUGUSTA, Maine — Maine election officials on Tuesday approved the question that would appear on the ballot if opponents of the recently enacted same-sex marriage law collect enough signatures ... Groups seeking to overturn the law through the people’s veto process filed the necessary paperwork with the Secretary of State’s Office the day after the governor signed the bill. The filing of the application for petitions stayed the enactment of the law, so same-sex couples will have to wait to get married until after voters have a chance to weigh in on the question."

University of Chicago Law School Faculty Blog to host debate on Illinois' proposed Religious Freedom Protection and Civil Union Act

05/01/09 University of Chicago Law School Faculty Blog:

"Next week the Faculty Blog will be hosting a conversation between Geof Stone, Martha Nussbaum, Notre Dame's Rick Garnett, and Michigan's Douglas Laycock. The starting point for discussion will be Professor Stone's recent Chicago Tribune article on Illinois' proposed Religious Freedom Protection and Civil Union Act." In his article, Garnett asks, "How does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?"

Source of blog reference: ADF Alliance Alert

Connecticut passes update of marriage law for gays; Governor M. Jodi Rell signs the legislation

04/23/09 AP:

"HARTFORD, Conn.—A decade-long battle for same-sex marriage in Connecticut has ended with the governor’s signature on a bill updating the state’s laws. Gov. M. Jodi Rell signed the legislation Thursday, one day after the state House and Senate both approved it."

Source of reference to AP article: National Center for Lesbian Rights

04/22/09 AP:

"HARTFORD, Conn. (AP) — Connecticut lawmakers voted late Wednesday to update the state's marriage laws to conform with last fall's landmark state Supreme Court ruling allowing gay and lesbian couples to marry ... In an effort to appease some gay marriage foes, lawmakers amended the bill to show they want to protect religious liberties. For example, it says religious organizations and associations are not required to provide services, goods or facilities for same-sex wedding ceremonies."

The law's exemptions for religious faith can be found here and here.

04/23/09 Volokh Conspiracy Blog:

University of Minnesota Law Professor Dale Carpenter blogs about the exemptions:

"The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to 'any individual' and its specific reference to the 'sincerity' of religious belief."

Source of reference to blog post: ADF Alliance Alert

04/24/09 Mirror of Justice:

"In response to the proposal of four of us for a broad religious-liberty exception [for individuals] in same-sex marriage bills in Connecticut and elsewhere, Dale Carpenter at the Volokh Conspiracy welcomed but also raised some questions about our proposal. Below is our response."

Source of reference to blog post: ADF Alliance Alert

04/24/09 Volokh Conspiracy:

Dale Carpenter expresses appreciation for the "the great thought, care, and time that went into this reply" by the four scholars on religious liberty, invites his readers to respond, and identifies related posts."


04/22/09 ConnecticutPost.com

The Connecticut Post reports that the Knights of Columbus, the Catholic Church and Family Institute engaged in a "weekend public relations blitz" as they lobbied the state Senate to add religious-faith exemptions to the legislation. As part of this campaign, "the Roman Catholic Bridgeport Diocese circulated a letter sent to [Connecticut Senate President Martin] Looney by four law professors urging the Legislature provide religious conscience protections." The legal scholars urged the state Legislature to follow the example of Vermont's new law on same-sex marriage, which exempts religious organizations from providing "services, accommodations, advantages, facilities, goods or privileges" related to "the solemnization and/or celebration of a marriage."

The Senate was reluctant to add the exemptions, but the media campaign appears to have succeeded. Sen. Andrew McDonald, D-Stamford, a judiciary committee co-chairman, explained why he opposed the law's exemption for religious organizations deny commercial wedding services to same-sex couples:

"Could Christian caterers say, 'I refuse to cater a Jewish bar mitzvah because I don't believe in Judaism'? Once you hold yourself out to the public to provide goods or services to the public at large, you cannot discriminate. That has nothing to do with marriage. It has everything to do with discrimination law in place in Connecticut since 1991. You can't discriminate against anybody based on race, religion, ethnicity or sexual orientation."

McDonald also objected to a "a full-page newspaper ad that ran Sunday [04/19/09] alleging the Senate bill would 'deny citizens their religious rights' and result in the government punishing church groups and in companies going out of business." He said the advertising had been "riddled with misinformation," including a familiar allegation of oppenents of same-sex marriage - that "schools will be forced to teach gay marriage and parents will have no choice in the matter."

Same-sex marriage and religious liberty issues in Connecticut; Empire State Pride Agenda challenges claims of harm to religious liberty

04/21/09 Mirror of Justice Blog:

"Here are a couple of letters to the speaker of the Connecticut house arguing for meaningful religious liberty exemptions in the bill [to implement the state supreme court's October 2008 decision in Kerrigan v. Commissioner of Public Health]. One is from four religious liberty scholars, including Robin Fretwell Wilson (Washington and Lee, drafter), Carl Esbeck (Missouri), and MOJ's own Rick Garnett and Tom Berg, proposing a text of a broader exemption. The other is from Professor Doug Laycock, explicitly supporting both same-sex marriage and religious liberty and endorsing the text in our letter."

Source of reference to Mirror of Justice: ADF Alliance Alert

04/21/09 National Center for Lesbian Rights:

Empire State Pride Agenda Executive Director Alan Van Capelle said, “For too long, the religious right has controlled the religious debate around marriage for same-sex couples by promoting misinformation that marriage equality threatens religious freedom. Today a diverse group of [Massachusetts] clergy speaks directly to New Yorkers about their experiences since Massachusetts legalized marriage for same-sex couples.”

04/22/09 Boston Globe:

"Several prominent religious leaders from Massachusetts are lending their support to the campaign for the legalization of same-sex marriage in New York state, arguing in various venues yesterday that gay marriage has not affected religious freedom in the Bay State. The gay rights group, the Empire State Pride Agenda, said it sought out clergy in Masachusetts in an effort to rebut critics of same-sex marriage."