Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context
Robin Fretwell Wilson
University of Illinois College of Law
SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY: EMERGING CONFLICTS, p. 77, Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., 2008
Washington & Lee Legal Studies Paper No. 2012-7
It is difficult to ignore the parallels emerging between same-sex marriage and the recently renewed debates about the limits of conscience in healthcare, sparked by refusals to dispense emergency contraceptives. Both subjects are deeply divisive and in both persons of good will are saying “why should I have to give up my convictions so that you can have yours?”
This Chapter explores the dilemmas facing churches, clergy, state officials, and private individuals who, as a matter of conscience or religious conviction, feel that they can neither support nor participate in same-sex marriage unions. It argues that the demand for same-sex unions will result in a torrent of litigation, just as the assertion of abortion rights after Roe did, if legislatures fail to decide ex ante whether there is a duty to assist or, conversely, a right to refrain. Given the status of most churches and religious organizations as state nonprofits and federally tax-exempt organizations, public support arguments will surely be advanced to compel religious groups to participate in same-sex marriage. Thus, religious organizations may reasonably worry that litigation will be required to defend their right to refrain from participating in same-sex unions. This Chapter argues further that legislatures should deflect this litigation with legislative accommodations as they ultimately did with fractious healthcare services.
This Chapter ends with a frank discussion about the trade-offs and costs of making any accommodations for conscientious objections over same-sex marriage. It concludes that clergy and churches cannot be required to participate in same-sex marriage for constitutional reasons, and that refusals by public officials, private individuals and religiously affiliated institutions should be accommodated only when their refusal would not pose a significant hardship for the couple trying to marry, so that their refusal does not stand in the way of exercising a fundamental right.
Number of Pages in PDF File: 67
Keywords: Same-Sex Marriage, Religious Liberty, Healthcare
JEL Classification: K10, K39
Date posted: February 24, 2012