Protecting Same-Sex Marriage and Religious Liberty

Abstract

In Hollingsworth v. Perry and United States v. Windsor, or perhaps in some more clearly justiciable case a few years hence, the Supreme Court will decide whether states can prohibit same-sex marriages. The Becket Fund for Religious Liberty argued in both pending cases that protecting religious liberty is a rational basis for banning same-sex marriage.

The conflict between religious liberty and gay rights is bad for both sides and dangerous for the American tradition of individual liberty. The Court can protect the rights of both sides. In this short essay, based on an amicus brief filed in Perry and Windsor, we argue that the Court should protect the right to same-sex marriage, that religious liberty is not a sufficient reason to deny the right, but that the Court must attend to the religious liberty conflicts that same-sex marriage may create for religious believers and organizations who object to facilitating such marriages. The strongest features of the case for same-sex civil marriage make an equally strong case for protecting the religious liberty of dissenters. There are important doctrinal tools available to protect religious liberty in state and federal constitutional law and in state and federal statutes.

Keywords: religious liberty, same-sex marriage, civil marriage, religious marriage, religious accommodations, right to marry, gay rights, free exercise of religion