Thursday, August 18, 2011

Religious liberty, again

Writing at the Scotusblog Same Sex Marriage symposium, Thomas C. Berg, Professor of Law and Public Policy at the University of St. Thomas, argues that supporting marriage equality and "religious liberty" are opposing forces.
[O]nce the California Supreme Court ordered same-sex marriage, voters could understandably lack any confidence that religious-liberty concerns would ultimately be addressed and given weight. In that context, I believe, voters had a rational basis for rejecting same-sex marriage. ....

Although I think Proposition 8 was therefore rational, it would be fairer to all to recognize gay marriage and accommodate religious liberty. ...

I believe that legislative superiority in striking such balances is one reason why legislation recognizing same-sex marriage is preferable to constitutional decision-making – preferable especially to a single decision by the U.S. Supreme Court requiring equal marriage in all fifty states.

If courts declare gay-marriage rights, however – whether state courts or the U.S. Supreme Court – they must do a better job on religious liberty than they have so far. They should expressly acknowledge the broad range of potential conflicts. And if they are not going to order religious accommodations as constitutional mandates, they should expressly encourage state legislatures to consider them as wise policy.
I have a huge problem with this, because it completely ignores the religious liberty of those who support equality. Many, many denominations and faith communities are supportive. Prop 8 impinged, deeply, on their religious liberty--not just on the civil liberties of GLBT people.

It's way past time for the scholars and pundits to "get it" that religion is not of one mind, and that what Prop8 DID was force Episcopalians to live under ROman Catholic rules.

Moreover, since California already provides for the anti-discrimination policies that this writer dislikes, it's not clear at all that same sex marriage is to blame for the discomfort of individuals.

And, just replace "gay marriage" with "Jew". Would we allow an arch-conservative Evangelical to refuse to serve a Jewish person? What about a Muslim? Or a Mormon? Religion is certainly a choice (which orientation is not).

I do agree with him on one thing, though. I don't understand why anyone would sue a photographer or baker who didn't want to serve at your wedding. Would you really want to have someone doing your wedding who loathes everything about you? Just make it public, and let the market do the rest.

1 comment:

JCF said...

I do agree with him on one thing, though. I don't understand why anyone would sue a photographer or baker who didn't want to serve at your wedding.

No...but when you extend it to "hotel/resort that won't hold our wedding reception", then it gets dicey. If you want to hold your reception at the Ahwahnee* or the Hotel Del Coronado or the Top of the Mark (to use just California examples!), it's hard to say "Oh, just go to another place." Some places are Sui generis, y'know?

[* True Story: my mom told me she and my dad went to the Ahwahnee (the legendary lodge at Yosemite) for their 5th anniversary. Their 5th anniversary was April 21, 1961. I was born January 18, 1962. My mom again: "the only time you were ever early for anything in your life." Do the math! ;-D]