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The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages

54 Pages Posted: 24 Feb 2014 Last revised: 8 May 2015

James M. Oleske Jr.

Lewis & Clark Law School

Date Written: May 7, 2015

Abstract

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.

Keywords: Equal Protection, Free Exercise, Antidiscrimination Laws, Religious Exemptions, Same-Sex Marriage, Interracial Marriage, Windsor, Civil Rights, Employment, Housing, Public Accommodations

JEL Classification: K00

Suggested Citation

Oleske, James M., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages (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. Available at SSRN: https://ssrn.com/abstract=2400100

James M. Oleske Jr. (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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