A Unique Religious Exemption from Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate against Married or Marrying Gays in Context

Abstract

Faced with gay marriage in a few states, the Becket Fund for Religious Liberty and some scholars advocate exemptions from antidiscrimination laws for those with religious or moral objections to “facilitating” gay marriage.1 Advocates seek exemptions only in connection with gays, and at least initially, they connect the need for exemptions to gay marriage. This essay examines the claim for religious or moral exemptions in a broader social and historical context. It asks why exemptions are sought only in the case of gays and whether the rationale for exemptions can reasonably be confined to “facilitating” gay marriage. Would the claim for exemptions logically support exemptions from antidiscrimination laws in the case of discrimination against single and partnered gays? Why should gays be treated differently from every other group protected by antidiscrimination laws, including Americans of African descent and women? Can a claim for a religious exemption in the case of gay marriage be supported on the theory that a religious and biblical rationale was absent in the case of racial discrimination but is present in the case of gays? Can it be supported on the ground that religious exemptions for discrimination against gays would subject them to only minor inconvenience? Would a similar rationale be persuasive in the case of religious exemptions for racial discrimination?