RSS Feed
Exemptions Can be Good, but Devil in the Details
New Hampshire became the sixth state to let gay couples wed. The new law was approved after revisions exempted members of the clergy from having to perform same-sex weddings and religious groups and their employees from having to participate in such ceremonies. Polls say regular churchgoers are more likely to support gay marriage with these 'religious liberty reassurances.' Is this a good solution to the divisive issue of gay marriage?
Religious exemptions can be a good, if not always fully satisfying, solution to the controversy over same sex marriage. As is often the case, the devil is in the details.
Exemptions from generally applicable laws that burden the exercise of religion are a time-honored way of accommodating religious liberty under American law. Some exemptions -- usually granted by the courts -- are required by the First Amendment's (and some states') free exercise provisions and church autonomy doctrine that prevents government from interfering with internal workings of houses of worship. Other exemptions -- usually given out by legislatures -- are permitted under the First Amendment's Establishment Clause when they remove governmentally imposed burdens on the exercise of religion and do not substantially prejudice the rights of third parties.
Thus, much protection for religious liberty is already provided by these federal and state constitutional protections for houses of worship. These include matters such as calling and ordaining ministers, hiring staff, orchestrating worship and performing other sacerdotal functions. Acknowledging this protection -- and indeed buttressing it as the New Hampshire legislation recently did with a robust religious exemption -- is altogether proper.
The difficult policy, and to some degree constitutional, concerns arise when expanded exemptions are sought beyond the context of houses of worship to include religiously affiliated organizations, such as social service providers and colleges and universities. Even more controversial and debated are demands that such protection be extended to those participating in the stream of commercial enterprise, such as wedding consultants, photographers and caterers who, as a matter personal religious conviction, object to participating in the solemnization of a same sex union.
New Hampshire's exemptions for religious organizations, associations and societies provide some comfort to those who worry that extending marriage rights to same sex couples will necessarily harm their religious liberty. While adding language to specifically protect religious groups was necessary to pass the marriage bill in the Granite State, other states may require different exemptions as their lawmakers search for ways to navigate the competing claims inherent in these discussions. We are likely to see many variations on these themes as the debate continues.
In conclusion, it is important that we remember that many who advocate for same sex marriage believe deeply in religious liberty, and many who embrace the traditional understanding of marriage are open to fair treatment for all as we seek something of a win-win solution.
By
J. Brent Walker
|
June 9, 2009; 3:57 PM ET
Share This: 
Technorati
| Del.icio.us | Digg | Facebook
Previous: Religious Liberty and Gay Marriage: A Winning Strategy |
Next: Traditional Marriage Is Society's Best Bet
Posted by: gladerunner | June 10, 2009 4:05 PM
Report Offensive Comment
I mean, it's all kind of funny, anyway. I thought it was Christians always hiring "us" to plan their weddings. :)
Really, I have no interest in hiring anyone that's gonna be so hateful they'd bring a bad vibe to *my* wedding, anyway, if we hire a photographer, we want them to be doing good *photography,* not gawking at the Pagan-ness and giving the 'brides' the stink-eye.
Not that a big production is planned (Pagan weddings are usually put together by friends and community, anyway, not quite such the big formal production, necessarily) ...but if someone doesn't want my money cause they've got a hate on, I don't want them involved in my celebration. All they gotta do is say so.
Posted by: Paganplace | June 10, 2009 1:20 PM
Report Offensive Comment
Or should I just shuffle on down from the 'Straights Only' end of the buffet?
Posted by: Paganplace | June 10, 2009 1:01 PM
Report Offensive Comment
This 'exemption' was never necessary: it's a 'reassurance.'
"Even more controversial and debated are demands that such protection be extended to those participating in the stream of commercial enterprise, such as wedding consultants, photographers and caterers who, as a matter personal religious conviction, object to participating in the solemnization of a same sex union."
Personally, anyone who objects to my marriage doesn't get hired by me. If they contract and *then* develop a problem at the last minute, as often happens when you try and book a venue for a Pagan event, ...not just discriminating but attempting to spoil the occasion by effectively cancelling it.... That's wrong.
If you're open for public business, you're open for public business. That has nothing to do with whether or not someone should be able to get married, anyway.
Now you want a 'conscience clause' for flower shops? Gimme a break.
Posted by: Paganplace | June 10, 2009 12:59 PM
Report Offensive Comment
The comments to this entry are closed.
PaganPlace: "Now you want a 'conscience clause' for flower shops? Gimme a break. "
He's a lawyer by training.. Of COURSE he sees and salivates over loopholes and exceptions, regardless of their miniscule size...