31 Pages Posted: 17 Dec 2010
Date Written: December 14, 2010
This article presents a new perspective on the question of whether and to what extent states should provide accommodations to religious objectors to same-sex marriage. It critically evaluates both of the commonly presented, competing analogies for addressing this issue; the accommodation of religiously-based race discrimination (offered by those who oppose most accommodations) and conscience clauses for health care providers (suggested by commentators who are more supportive of accommodations.) As an alternative model, the article suggests that the starting place for determining whether or not an accommodation for religious objectors to same-sex marriage should be granted is to ask whether a comparable accommodation would be granted to an individual or institution seeking the right to discriminate on the basis of religion in providing goods, services, or benefits to others.
The analogy to accommodation for religious discrimination is grounded on the recognition that religious liberty and the right of same-sex couples to marry share a common foundation and are in some sense mutually reinforcing interests. Both religion and same-sex marriage go to the core of a person’s identity. Both are intrinsically relational. Both involve conduct that expresses commitment. Both relationships are the source of duties and responsibilities that people feel compelled to fulfill. Both religious liberty and gay and lesbian rights are susceptible to similar kinds of slippery slope challenges. (Polygamy is the pit at the bottom of both slippery slopes.) Finally, and perhaps most importantly, the essence of religious liberty is the right to be different and, in the eyes of the majority, to be wrong. That understanding has parallels to the debate about same-sex marriage as well.
In evaluating possible accommodations, the article carefully describes the costs to objectors if accommodations are denied and the cost to same-sex couples if accommodations are granted. It concludes by suggesting that government has dual responsibilities if accommodations are granted. When the state protects religious liberty by adopting discretionary accommodations, it must also use its resources and authority to promote the goals of civil rights legislation by spreading or mitigating the costs and burdens resulting from such accommodations.
Suggested Citation: Suggested Citation
Brownstein, Alan E., Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry (December 14, 2010). University of San Francisco Law Review, No. 45, 2010; UC Davis Legal Studies Research Paper No. 238. Available at SSRN: https://ssrn.com/abstract=1725610