Posted by Dale Carpenter:
"No gay couples allowed":
http://volokh.com/archives/archive_2009_08_02-2009_08_08.shtml#1249494788
John Culhane is continuing a series of posts this week on religious
liberty and gay marriage. (See [1]here, [2]here, and [3]here) The
posts have been very informative and lively. In [4]today's post, he
takes the view that there is no need for special religious-liberty
exemptions in SSM but offers an especially creative and interesting
alternative. The core of the proposal is this:
Why not simply remind the [religious] objectors � I�d support a law
spelling this out � that they have a right to clearly state that
they oppose same-sex unions and would �prefer to step aside�
(borrowing and repurposing language from Professor Wilson here) for
religious reasons. There might even be standard, respectful
language suggested (not mandated, but perhaps bulletproof), making
clear that the proprietor�s objection is based on religion, not
animosity. What same-sex couple wouldn�t respect that, and go
somewhere else � if they could?
If they couldn�t � the dreaded one-florist town! � the couple
could, under my proposal: (1) forego flowers (gasp!); (2) if
botanically feasible, order some from out-of-town, or (3) fail to
respect the wishes of the religiously objecting florist and use
their services anyway. Wilson et al. would achieve that result
through a �hardship exception� (only in a wedding-obsessed culture
could the possibility of having no flowers at a wedding be thought
of as a �hardship,� by the way), but then we might find ourselves
litigating the issue of hardship. �We had a hardship.� �No, you
didn�t.� Please, stop. Let�s not invent laws we hardly need.
Let's be clear what we're talking about here: a situation in which a
gay married couple or a gay couple about to get married seeks some
good or service as a couple and is refused that good or service on the
grounds that the provider objects to gay marriage (not gay people) for
religious reasons. The gay couple nevertheless seeks some legal remedy
under a state antidiscrimination law which (a) applies to the
transaction and (b) is not already subject to an exemption for
religious objectors. I have found [5]no reported cases so far in which
all these conditions were present. But that doesn't mean they won't
ever happen. It is for such cases that we are seeing proposals for
special religious-liberty exemptions that apply to the provision of
goods or services related to a gay marriage or to the status of being
in a gay marriage.
Culhane's proposal for dealing with what seems likely to be a very
rare confrontation will not please purists on either side, who really
want maximum cultural conflict over this issue. On the pro-SSM side,
some will insist that allowing a florist to put up a "no gay couples"
sign is repugnant, even if the florist in fact is required not to
discriminate. To them it would be akin to inviting Ollie's BBQ to put
up a sign saying "no colored folks -- but the law requires us to serve
you anyway." On the anti-SSM side, some will insist that the signs are
just window-dressing, provide no legal protection, and may expose
business owners to even more litigation by advertising their aversion
to gay marriage.
But if, as I suspect, (1) gay couples will generally not want to work
with business owners who make it plain that they object to same-sex
marriages, and (2) only the most sincerely and deeply religious
objectors would put up such a sign, the number of religious-liberty
legal confrontations over SSM ceremonies should be reduced.
The potential difficulty with Culhane's proposal is that it might be
too clever and subtle to work politically. How do you sell the idea
that a business owner has a right to put up a sign but no right to act
on the message in the sign?
An alternative would be to include a specific religious-liberty
exemption in SSM laws but require the sign display ("no gay couples")
as a condition of being protected by the exemption. This should also
reduce litigation, for the same reasons discussed above. Only the
serious culture warriors will force the issue. I suppose there might
be a First Amendment objection to requiring the sign display as a
condition for getting the protection of the exemption. But since the
exemption itself is not constitutionally required, that would be a
complicated and doubtful claim.
I'm open to either alternative in principle, since in my view there is
very little legal or experiential justification for special
religious-liberty carve-outs in laws authorizing SSM, but some
accommodation may be necessary politically to assuage SSM moderates in
state legislatures and in referenda.
References
1.
http://prop8legalcommentary.blogspot.com/2009/07/fourt-part-series-on-marriage-equality.html
2.
http://prop8legalcommentary.blogspot.com/2009/08/part-ii-in-professor-john-culhanes.html
3.
http://prop8legalcommentary.blogspot.com/2009/08/part-iii-in-professor-john-culhanes.html
4.
http://prop8legalcommentary.blogspot.com/2009/08/part-iii-in-professor-john-culhanes.html
5.
file://localhost/var/www/powerblogs/volokh/posts/www.volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241641694
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