A Unique Religious Exemption from Anti-Discrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate Against Married or Marrying Gays in Context

43 Pages Posted: 3 Sep 2011 Last revised: 31 Mar 2015

See all articles by Michael Kent Curtis

Michael Kent Curtis

Wake Forest University - School of Law

Date Written: August 1, 2011

Abstract

Faced with gay marriage in a few states, the Becket Fund for Religious Liberty and some scholars advocate exemptions from anti-discrimination laws for those with religious or moral objections to “facilitating” gay marriage. Advocates seek exemptions only in connection with gays and, at least initially, they connect the need for exemptions to gay marriage. This essay examines the claim for religious or moral exemptions in a broader social and historical context. It asks why exemptions are sought only in the case of gays and whether the rationale for exemptions can reasonably be confined to “facilitating” gay marriage. Would the claim for exemptions logically support exemptions from anti-discrimination laws in the case of discrimination against single and partnered gays? Why should gays be treated differently from every other group protected by anti-discrimination laws, including Americans of Africans descent and women?

Can a claim for a religious exemption in the case of gay marriage be supported on the theory that a religious and Biblical rationale was absent in the case of racial discrimination, but is present in the case of gays? Can it be supported on the ground that religious exemptions for discrimination against gays would subject them only to minor inconvenience? Would a similar rationale be persuasive in the case of religious exemptions for racial discrimination.

The best way to think about the claim that gay marriage requires expanded exemptions from existing laws for religious discriminators is in the larger context of both race and gender discrimination and in the larger context of discrimination against gays outside of gay marriage -- as well as in the case of discrimination against people in same-sex marriages. The racial analogy may help some see why the harms of discrimination against gays are substantial and broad exemptions are problematic. If so, this paper will have been a modest success.

Suggested Citation

Curtis, Michael Kent, A Unique Religious Exemption from Anti-Discrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate Against Married or Marrying Gays in Context (August 1, 2011). Wake Forest Univ. Legal Studies Paper No. 1921364, Available at SSRN: https://ssrn.com/abstract=1921364 or http://dx.doi.org/10.2139/ssrn.1921364

Michael Kent Curtis (Contact Author)

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
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336-758-4496 (Fax)

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