Doctoring Discrimination in the Same-Sex Marriage Debates

60 Pages Posted: 15 Jun 2013 Last revised: 30 Mar 2015

See all articles by Elizabeth Sepper

Elizabeth Sepper

University of Texas at Austin - School of Law

Date Written: June 13, 2013

Abstract

As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. They model their proposal on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, they say, would dispel conflicts over same-sex marriage and lead to acceptance of gay couples’ relationships.

This Article argues that same-sex marriage objections lack the distinct and compelling features of conscientious objection recognized by law. It offers the first systemic critique of medicine as a construct for the same-sex marriage debates. It demonstrates that legislative protection of conscientious objection traditionally has been limited to life-and-death acts for which the objector has direct responsibility and further justified in medicine by ethical commitments particular to the profession — bases that are absent from the marriage context. By identifying the theoretical foundation of conscientious objection protections, this Article provides the groundwork for distinguishing between conscience claims that can be justified and those that cannot, in medicine and beyond.

This Article further contends that the experience of medical conscience legislation represents a cautionary tale, rather than the success story that marriage conscience proponents claim. Conscience protection in the medical model could actually increase conflict and entrench opposition. Ultimately, these critiques undermine the theoretical and practical foundations of “marriage conscience protection.” They suggest that antidiscrimination law, where we have traditionally balanced religion and equality, constitutes a more useful lens through which to view religious accommodation.

Keywords: Same-sex marriage, conscience, conscientious objection, antidiscrimination, medicine

Suggested Citation

Sepper, Elizabeth, Doctoring Discrimination in the Same-Sex Marriage Debates (June 13, 2013). 89 Ind. L.J. 703 (2014); Washington University in St. Louis Legal Studies Research Paper No. 13-06-01. Available at SSRN: https://ssrn.com/abstract=2279040

Elizabeth Sepper (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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