Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.)

Abstract

The Court must protect the right of same-sex couples to marry, and it must protect the right of churches, synagogues, and other religious organizations not to recognize those marriages. This brief, filed in Obergefell and the other current same-sex marriage cases, is an appeal to protect the liberty of both sides in the dispute over same-sex marriage. Serious issues of religious liberty will arise in the wake of same-sex marriage. But it is not appropriate to prohibit same-sex civil marriage to avoid having to address those issues. No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own. The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil. The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages. Doctrinal tools are available to protect religious liberty with respect to marriage, and this brief summarizes them.