Can a court clerk morally opposed to same-sex marriage be forced to issue a marriage license to a gay couple? Will a church-affiliated organization lose its tax-exempt status if it refuses to let a same-sex couple use its facilities for a wedding reception?
A new book co-edited by Washington and Lee University law professor Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty: Emerging Conflicts, seeks to answer such questions by exploring the religious freedom implications of defining marriage to include same-sex couples. The book represents the only comprehensive, scholarly appraisal to date of the church-state conflicts virtually certain to arise from the legal recognition of same-sex marriage.
In praising the book's balance and insight, Harvard Law Professor Martha Minow notes that "governments cannot be neutral in the coming clashes between those whose religious beliefs deem homosexual conduct immoral and those who believe that gay and lesbian people deserve to live openly and safely with the same regard and protections accorded others."
Same-Sex Marriage and Religious Liberty: Emerging Conflicts explores two principal questions. First, exactly what kind of religious freedom conflicts are likely to emerge if society embraces same-sex marriage? A redefinition of marriage would impact a host of laws where marital status affects legal rights—in housing, employment, health-care, education, public accommodations, and property, in addition to family law. These laws, in turn, regulate a host of religious institutions—schools, hospitals, and social service providers, to name a few—that often embrace a different definition of marriage.
Second, how might these conflicts be resolved? If the disputes spark litigation under the Free Speech, Free Exercise, or Establishment Clauses of the First Amendment, who will prevail and why? When, if ever, should claims of religious liberty prevail over claims of sexual liberty?
"This book is a thought experiment that assumes same-sex marriage will become legal across the country," says Wilson. "That's the starting point for exploring what this means for society, finding the collision points that acceptance of same-sex marriage will create, and providing constructive solutions to those conflicts."
Wilson's own contribution to the volume, "Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context," looks to the impact of the legalization of abortion by Roe V. Wade for guidance on the same-sex marriage issue. After Roe, federal and state law required hospitals and clinics to develop policies and procedures for accommodating staff who had moral objections to the practice while still providing the service to women. Wilson argues that this same approach could be used to address the moral objections of the hypothetical court clerk, for example, as long as it doesn't place an undue burden on the couple seeking a marriage license.
"One person can't be a road block to a couple getting married if the law says they have a right to," says Wilson. "If there's only one law clerk within a hundred miles, that person should be required to issue the license. But we should strive to head off these conflicts by anticipating problems and putting accommodations in place when no one would otherwise experience a hardship."
The book was co-edited with Douglas Laycock (University of Michigan School of Law) and Anthony R. Picarello, Jr. (General Counsel for the Unites States Conference of Catholic Bishops) and also includes essays from Chai R. Feldblum, Douglas W. Kmiec, Dr. Charles J. Reid Jr., Marc D. Stern, and Jonathan Turley.
Professor Wilson and other contributors will participate in a panel discussion about the book at the Newseum in Washington, D.C. on Tuesday, Sept. 9 from 6:00 p.m. to 8:00 p.m. A reception and book signing will follow.
Same-Sex Marriage and Religious Liberty: Emerging Conflicts is available now from Rowman & Littlefield.
A scholarly, thoughtful, and well-written collection of essays from leading thinkers in the field--a must for anyone interested in religious liberty, gay rights law, or both. Coeditor Doug Laycock, one of the top religious freedom scholars in the nation, characterizes the essays well in his afterword: they are an "oasis of reasoned discourse amidst all the conflict," and people on all sides of the same-sex marriage debate have much to learn from them."—Eugene Volokh, UCLA School of Law
"Governments cannot be neutral in the coming clashes between those whose religious beliefs deem homosexual conduct immoral and those who believe that gay and lesbian people deserve to live openly and safely with the same regard and protections accorded others. The fair-minded authors in this volume identify emerging legal and policy choices as governments negotiate these clashes and in so doing, illuminate contrasting visions of liberty and equality embedded in current and potential legal doctrines. Each chapter and the judicious afterword by Douglas Laycock deserve close attention by policy-makers, advocates for religious communities, advocates for lesbian-gay-bi-sexual-transgender communities--and lovers of liberty anywhere."—Martha Minow, Harvard Law School
"These smart and wise essays map and illustrate the main battle lines between two of our most cherished rights–the right to worship the God we fear and the right to marry the one we love. Drawing on the best constitutional, comparative, historical, and social science lore, the authors work hard to define the hard issues, to defuse the false charges, and to discern the best methods for bringing religious liberties and marital rights into greater concordance. Specialists and novices alike will much learn from these pages."—John Witte, Jr., Emory University School of Law
"Will the recognition of same-sex marriage create serious burdens on the religious liberty of those who object to such marriages? Can those burdens be avoided by reasonable rules of law? This book offers the first sustained exploration of these important questions and reveals the diversity of views on how to balance these two powerful concerns."—Andrew Koppelman, Northwestern University School of Law
Robin Fretwell Wilson is Professor of Law and Alumni Faculty Fellow at Washington and Lee University School of Law. A specialist in Family Law and Health Law, Professor Wilson's research and teaching interests also include Insurance and Biomedical Ethics. She is the editor of two volumes: Reconceiving the Family: Critical Reflections on the American Law Institute's Principles of the Law of Family Dissolution and the Handbook of Children, Culture & Violence. Last year, Professor Wilson earned one of 10 "citizen lawmaker" awards presented by Del. Rob Bell, R-Albemarle County, for her work on a new Virginia state law prohibiting unauthorized pelvic exams by medical students.
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