Clarion Call or False Alarm: Why Proposed Exemptions to Equal Marriage Statutes Return Us to a Religious Understanding of the Public Marketplace

Flynn, Taylor | January 1, 2010

Asserting that same-sex marriage will unleash a flood of litigation, advocates of “conscience clause” exemptions to equal marriage statutes promote their proposals as a modest compromise to protect religious liberty. There will, however, be no deluge: although same-sex marriage has existed since 2004 and is recognized in five states, not one of proponents’ examples involves same-sex marriage. Instead, the examples demonstrate that such conflicts have been occurring for decades. While advocates are free to object to the existing balance between nondiscrimination laws and religious belief, the proposals’ scope is unprecedented, reaching all public accommodations laws and all protected groups: a caterer could refuse to provide services because the cleric officiating is a woman; a landlord could refuse to rent to a married couple who is inter-racial, gay, or interfaith. The common law, which is the precursor to public accommodations statutes, has for centuries required common carriers to serve all comers on reasonable and nondiscriminatory terms. The proposals reverse the common law’s determination that the burden should fall on the seller who has placed herself in the public marketplace for commercial gain: their impact is to return to a long-since rejected religious view of the marketplace. Moreover, the vast gulf between the exemptions’ actual reach and proponents’ claimed impact suggests that irrespective of how well-intentioned individual proponents may be, some may be harnessing fears, disgust, and anxiety surrounding same-sex marriage as a strategy to obtain state authorization to discriminate that otherwise would not garner sufficient legislative support.