Liberty v. Equality; Equality v. Liberty

Stern, Marc D. | January 1, 2010

The principle that religious accommodation is necessary should not be debatable. Recognition of same-sex marriage, whatever technical form legal arguments made on its behalf take, exemplifies a “live and let live” policy. That same policy should apply equally to religious believers who oppose same-sex marriagethey should not be required to act directly in opposition to their religious beliefs, that is, in ways that appear to confer their personal blessing on such marriages. That recognizing same-sex marriage will, for the while, put many people with “traditional” religious beliefs in a vise between their religious commitments and the law is really not open to serious question. Just as traditional believers too often slight the harm done to gays when they are denied access to marriage and its benefits, so too do advocates of same-sex marriage slight the interference with religious practice that the recognition of same-sex marriage will inevitably bring about.

Proponents of same-sex marriage deny that recognizing same-sex marriage will impose any costs on religious liberty because religious leaders and institutions would not be required to perform or host same-sex marriage ceremonies, a proposition echoed by both the California and Iowa decisions recognizing same-sex marriage. Some even deny that a conflict exists between religious liberty and recognition of same-sex marriage. This denial is particularly irritating given the increasing number of cases arising from the clash between same-sex marriage (or civil unions) and traditional religious practices here and abroad.

This Article discusses the case for religious exemptions to same-sex marriage laws through analysis of equality and liberty arguments. Though this analysis, this Article shows that there is no legal justification for a religious exemption if the right to same-sex marriage is based in equality. At the same time, there are various and compelling non-legal arguments for the appreciation of religious liberty. In the end, the debate on religious exemptions to same-sex marriage laws falls on deciding whether equality must make room for liberty (and liberty for equality). The take-no-prisoners approach to politics that categorizes so much of the contemporary debate makes it unlikely that any middle ground will emergeand, in fact, this is how the debate is proceeding. This is unfortunate, as a qualified religious exemption may preserve religious liberty without placing too large a burden on the equality of same-sex couples.