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In her May 3 Times Op-Ed article, "The flip-side of same-sex marriage," Robin Wilson urges state legislators across the country to undertake "the careful crafting of robust religious protections" when they draft laws to recognize same-sex marriages. Her goal in recommending such religious accommodations is to "allow Americans with radically different views on moral questions to live in peace and equality in the same society."
I share Wilson's goals. States that recognize same-sex marriages should protect the autonomy rights of religious individuals and institutions at the same time that they protect the autonomy rights of gay and lesbian individuals and couples. But Wilson's column does little to promote the careful crafting of accommodations to achieve the equality she seeks.
Wilson starts off on the wrong foot. She characterizes clauses such as the one in the New Hampshire same-sex marriage bill that reiterates the protection of clergy from being required to officiate at same-sex marriage ceremonies as "meaningless protections" and a "hollow guarantee" since the 1st Amendment already provides such protection.
Where was Wilson six months ago when we had an election in which the opponents of same-sex marriage insisted that the defeat of Proposition 8 would result in churches being forced to conduct marriage ceremonies for same-sex couples? If anything was "meaningless" and "hollow," it was these exaggerated arguments by Proposition 8 supporters. State legislatures can hardly be blamed for adopting redundant protections for clergy when opponents of same-sex marriage refuse to admit that the fears they generate are groundless.
The more serious problem with Wilson's analysis is that it never considers the impact of religious exemptions on gay and lesbian couples.
In my opinion, religious institutions should be granted an exemption from having to recognize the validity of same-sex marriages most of the time. But at some point, the cost of these exemptions becomes unacceptably high. For example, should a religiously affiliated hospital have the right to deny gays or lesbians the same rights of visitation and decision-making that are provided by law to opposite-sex families? Allowing such discrimination would completely disregard and ignore basic rights of personhood and family life.
Similarly, it may be appropriate for small businesses such as wedding photographers or caterers to be granted religious exemptions that allow them to decline to provide personal services at weddings for same-sex couples. But large businesses and obvious places of accommodation -- the places where public life in our society takes place -- should be open to everyone. A large hotel should have no more right to refuse to provide reception facilities for a same-sex wedding on religious grounds than to refuse to provide the reception for a bar mitzvah on religious grounds.
The basic idea here is straightforward: We can and should work hard to accommodate the rights of same-sex couples and religious individuals and institutions. Doing that right, however, requires government to take account of the actual and legitimate needs and interests of both groups. That's what treating people equally is all about.
Alan Brownstein is a professor at UC Davis School of Law, where he holds the Boochever and Bird Chair for the Study and Teaching of Freedom and Equality.
I share Wilson's goals. States that recognize same-sex marriages should protect the autonomy rights of religious individuals and institutions at the same time that they protect the autonomy rights of gay and lesbian individuals and couples. But Wilson's column does little to promote the careful crafting of accommodations to achieve the equality she seeks.
Wilson starts off on the wrong foot. She characterizes clauses such as the one in the New Hampshire same-sex marriage bill that reiterates the protection of clergy from being required to officiate at same-sex marriage ceremonies as "meaningless protections" and a "hollow guarantee" since the 1st Amendment already provides such protection.
Where was Wilson six months ago when we had an election in which the opponents of same-sex marriage insisted that the defeat of Proposition 8 would result in churches being forced to conduct marriage ceremonies for same-sex couples? If anything was "meaningless" and "hollow," it was these exaggerated arguments by Proposition 8 supporters. State legislatures can hardly be blamed for adopting redundant protections for clergy when opponents of same-sex marriage refuse to admit that the fears they generate are groundless.
The more serious problem with Wilson's analysis is that it never considers the impact of religious exemptions on gay and lesbian couples.
In my opinion, religious institutions should be granted an exemption from having to recognize the validity of same-sex marriages most of the time. But at some point, the cost of these exemptions becomes unacceptably high. For example, should a religiously affiliated hospital have the right to deny gays or lesbians the same rights of visitation and decision-making that are provided by law to opposite-sex families? Allowing such discrimination would completely disregard and ignore basic rights of personhood and family life.
Similarly, it may be appropriate for small businesses such as wedding photographers or caterers to be granted religious exemptions that allow them to decline to provide personal services at weddings for same-sex couples. But large businesses and obvious places of accommodation -- the places where public life in our society takes place -- should be open to everyone. A large hotel should have no more right to refuse to provide reception facilities for a same-sex wedding on religious grounds than to refuse to provide the reception for a bar mitzvah on religious grounds.
The basic idea here is straightforward: We can and should work hard to accommodate the rights of same-sex couples and religious individuals and institutions. Doing that right, however, requires government to take account of the actual and legitimate needs and interests of both groups. That's what treating people equally is all about.
Alan Brownstein is a professor at UC Davis School of Law, where he holds the Boochever and Bird Chair for the Study and Teaching of Freedom and Equality.
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