A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage

126 Pages Posted: 6 Sep 2015 Last revised: 28 Apr 2016

See all articles by Steven J. Heyman

Steven J. Heyman

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: April 21, 2016


In Obergefell v. Hodges, the Supreme Court ruled that state bans on same-sex marriage violate the principles of liberty, equality, and dignity that are enshrined in the Fourteenth Amendment. In the wake of this decision, the battle over marriage equality has shifted to a new front. Religious traditionalists assert that the legalization of same-sex marriage endangers their religious liberty, and they seek protections for those who object to such unions on religious grounds. For example, they contend that florists, bakers, and others who provide wedding-related goods and services should not be compelled to follow state civil rights laws that would require them to serve same-sex couples in the same way as opposite-sex couples.

This Article explores the conflict between religious liberty and civil rights in connection with same-sex marriage. The Article begins by looking at the worldviews that animate the opposing positions. The concerns of religious traditionalists go far beyond a fear that they will be compelled to do particular acts against their con-sciences. Instead, they believe that the advent of marriage equality will severely impede their ability to live out their faith in a wide range of areas, from family life and economic activity to political participation and religious practice. For this reason, traditionalists regard the legal recognition of same-sex marriage as a fundamental assault on their identity and way of life. But this view brings them into direct conflict with the aspirations of lesbian, gay, bisexual, and transgender people to live out their own values and to fully participate in society. At the deepest level, the dispute over religious liberty and civil rights involves a clash between the identities of these two groups.

The crucial problem is how this conflict can be resolved in a way that enables both groups to live together within a liberal democratic society. After examining several other approaches, the Article argues that conflicts of this sort can be overcome only through mutual recognition — that is, only when the members of opposing groups recognize and treat one another as full and equal persons and members of the community, who possess all the legal and constitutional rights that inhere in this status. On this view, one has no right to infringe the rights of other persons simply because one believes (whether on religious or other grounds) that they are not entitled to enjoy those rights or the basic human goods that those rights serve to promote. This view has its roots in the Lockean natural rights theory that laid the foundations of the American constitutional order.

The Article then offers a general account of the rights that individuals have, and situates religious liberty and civil equality within that framework. Finally, the Article applies this approach to the cur-rent controversy. It argues that, while the principle of religious liberty protects the right to believe that same-sex relationships are immoral and sinful, that principle does not give religious traditionalists a right to act on that belief in a way that is incompatible with the basic civil rights of same-sex couples, including their rights to marry and to receive equal treatment in the commercial sphere. A legislature may choose to grant wedding-service providers a religious exemption from civil rights laws as a matter of prudence, charity, or compromise. As a matter of principle, however, most providers are not entitled to demand such an exemption. But some providers are so closely involved with the wedding ceremony or the couple that they should not be compelled to take part.

Keywords: religious liberty, religious freedom, same-sex marriage, recognition, Locke, natural rights, Obergefell, identity, sodomy, conscience, sexual orientation, First Amendment, culture wars, dignity, rights, marriage, equality, civil rights

JEL Classification: K19

Suggested Citation

Heyman, Steven J., A Struggle for Recognition: the Controversy Over Religious Liberty, Civil Rights, and Same-Sex Marriage (April 21, 2016). 14 First Amendment Law Review 1 (2015), Available at SSRN: https://ssrn.com/abstract=2656292

Steven J. Heyman (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States
312-906-5228 (Phone)
312-906-5280 (Fax)

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