Not a Moral Issue: Same-Sex Marriage and Religious Liberty

Abstract

Same-Sex Marriage and Religious Liberty: Emerging Conflicts is a new book of essays edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson. In this Book Review, I focus on the book’s intellectual center of gravity, Professor Wilson’s essay, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, and Professor Laycock’s Afterword. The authors purport to offer a solution that will give Gays and Lesbians access to the benefits of marriage while also recognizing religious objectors’ rights to oppose Gay marriage. The authors endorse specific statutory exemptions in emerging marriage equality legislation allowing anyone asserting individual moral opposition to Gay and Lesbian couples to opt out of the facilitation of a same-sex marriage. The authors want such explicit exemptions for everyone from state employees to individuals providing services in the general stream of commerce. I argue that Professors Wilson and Laycock’s nearly exclusive focus on individual rights analysis in their approach to the same-sex marriage question fails to consider seriously the group-based equality issues at stake. I argue that, contrary to Professors Wilson and Laycock’s assertions, one cannot easily distinguish between religious objections to interracial marriage, as well as religious justification for other forms of inequality, and religious objections to same-sex marriage. I argue that we must analyze the claims of Gays and Lesbians for civil marriage under a substantive equality paradigm, and that the group-based equality interests of Gays and Lesbians should not be subordinated to the individual desires of religious objectors through resort to the descriptive moral counterbalancing inherent in typical, liberal individual rights analysis.