The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages
James M. Oleske Jr.
Lewis & Clark Law School
May 7, 2015
50 Harvard Civil Rights-Civil Liberties Law Review (CR-CL) 99 (2015)
Lewis & Clark Law School Legal Studies Research Paper No. 2014-10
One of the most active fronts in the debate over same-sex marriage laws concerns proposed religious exemptions that would allow for-profit businesses to discriminate against same-sex couples. These exemptions, which are being championed by a group of prominent constitutional scholars, would provide a shield from state and local antidiscrimination laws for a wide variety of commercial actors. Examples include innkeepers who refuse to host same-sex weddings, bakers who refuse to provide cakes for such weddings, employers who refuse to extend family health benefits to married same-sex couples, and landlords who refuse to rent apartments to such couples.
Today's widespread academic validation of religious objections to same-sex marriage stands in stark contrast to the academy’s silence in the 1940s, 1950s, and 1960s on the then-perceived conflict between religious liberty and interracial marriage. Although religious objections to interracial marriage were pervasive at the time — as reflected in the statements of politicians, preachers, and jurists, as well as in public opinion polls — those objections never found a home in the pages of America's academic law journals.
This Article offers the first comprehensive discussion of why the legal academy has been so solicitous of religious objections to same-sex marriage when it was never receptive to similar objections to interracial marriage. After examining several factors that have contributed to this "marriage dichotomy" in the academy — including the rise of the conservative legal movement, the influence of the Catholic Church, and the unique role of race in American history — the Article explains why the most important factor for purposes of the proposed exemptions is the recent reconceptualization of religious liberty as extending fully to for-profit commercial businesses. That reconceptualization, which the Supreme Court accepted for the first time in Burwell v. Hobby Lobby Stores, Inc., creates a dynamic in which religious liberty will inevitably conflict with the rights of third parties in the marketplace, a dynamic that is vividly illustrated by the prospect of businesses invoking religion to deny service to same-sex couples. This Article concludes that exemptions authorizing such conduct threaten the constitutional right of same-sex couples to equal protection — a right that has received scant attention in the debate until now, but one that can no longer be ignored in light of United States v. Windsor.
Number of Pages in PDF File: 54
Keywords: Equal Protection, Free Exercise, Antidiscrimination Laws, Religious Exemptions, Same-Sex Marriage, Interracial Marriage, Windsor, Civil Rights, Employment, Housing, Public Accommodations
JEL Classification: K00
Date posted: February 24, 2014 ; Last revised: May 8, 2015