Saturday, August 02, 2008

SSM and Religion. What Conflict?

After a road show including Vermont, Massachusetts, Canada and beyond, the Don't Make Them Do It! production is on stage in California. The plot features the bogus idea that if you legalize same-sex marriage, ministers, priests and other clerics will be forced to choose between religion (and free speech) and the law. Do we really want to charge all our religious officials with crimes?

I've dealt with that numerous times, including recently. Better though is an updated legal recap from actual law professors (UC/Davis) Vikram David Amar and Alan Brownstein. The not-too-succinct title is Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions.

They comment that the "...attempt to characterize the debate about same-sex marriage as a 'God versus Gays' battle is grounded on mistaken, or at least carelessly-considered, legal assumptions. Indeed, in important respects, protecting the right of gay men and lesbians to marry may help to reaffirm and reinforce religious freedom in our legal system far more than it will interfere with the free exercise of religion..."

The anti-gay and anti-SSM crowd often plays this card. It is not at all true and won't be. However, that doesn't stop the dishonest from staging this play again and again.

If you want to understand or debate the issues here, consider Amar and Brownstein's points, including:
  • When law and religion conflict, seek religious safeguards and exemptions. Don't try to reject secular law.
  • Even with more extreme religious sorts, the aim should be "to accommodate those religious communities by exempting them from requirements in the law that unreasonably interfere with the practice of their faith." It doesn't have to be binary, church or state.
  • They cite Civil Rights Title VII that formalized such religious protections in employment where they had never existed. That provides religious institutions with lots of freedom to discriminate on religion, but the larger society gained freedoms and protections by making this accommodation.
  • There are key similarities — "Both the right to marry and the right to exercise one’s religion free from government interference are basic autonomy rights. We protect these rights because they involve important, self-defining decisions that belong, as of right, to individuals rather than the state."
  • Decisions in Massachusetts and California to expand marriage to include SSM strengthens the case for such religious exemptions and clarity. Legally there is a parallel "argument for respecting other self-defining decisions that are intrinsic to personal identity."
  • The most important point, according to the authors, is that "religious liberty and the justification for religious accommodations are based on principles of substantive and functional liberty and equality." People aren't identical and we should accommodate those differences, in law and practice for such key areas as religion and freedom to marry.
The law profs see a lot of common ground legally. Their hope is that "...there is more of a potential for alliances and compromises here than might appear at first glance. Respect begets respect. That ought to be the foundation for a conversation here that is long overdue."

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