It is a pleasure to be back at the University of Chicago Law School Faculty Blog. Thanks very much to Geof for the opportunity to discuss his recent opinion piece on the proposed "Religious Freedom Protection and Civil Union Act."
So, "[h]ow" -- in Geof's words -- "does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?"
I agree with Geof that "[i]t is not a violation of religious liberty for the state not to impose one group's religious beliefs on other citizens who do not share them." That said, I believe we can and should distinguish between this statement and another, different one, namely, that it violates, or even implicates, the "separation of church and state" for religious believers (or anyone else) to support laws that, in their religiously-shaped view, tend to promote the common good. I am not convinced that clear lines exist between "moral" arguments (like, say, Dr. King's) and "religious" arguments. In any event, if legal recognition of civil unions or same-sex marriages is constitutionally (or morally) required, it is not, it seems to me, because many who oppose such recognition have "religious" reasons for doing so. In my view, the "separation of church and state" -- a crucial dimension of religious freedom -- has to do with the relationships between and among religious institutions and authorities and political ones; it does not have to do with the sources of citizens' views and policy preferences.
Geof and I agree that it is "reasonable" to think that "people with sincerely held religious beliefs should not be compelled by the state to act in violation of those beliefs." In my view, though, the provisions in the proposed Illinois law that "nothing in the legislation "shall interfere with or regulate the religious practice of any religious body" and that any religious body "is free to choose whether or not to solemnize or officiate a civil union" are actually not "very broad" at all. To concede that the government will not require churches to "solemnize" a civil union or "regulate [a church's] religious practice" is not, it seems to me, to concede very much. (If the "separation of church and state" means anything, and it should, it means that the government cannot require a religious body, or anyone else, to "solemnize" anything.) Doug Laycock, Tom Berg, Robin Wilson, and I have suggested -- in various letters sent to state legislators (more here) -- that broader religious-liberty protections for those who object to facilitating a same-sex marriage.
Geof characterizes the proposed Illinois law as a "reasonable compromise at this time in our history." I agree that, given all the givens, some kind of compromise on this issue is necessary. What many who are committed to religious liberty wonder, though, is what will be the other terms and implications of this compromise going forward? Will (or should), for example, religiously affiliated schools and universities be required to treat civil-unions the same way they treat marriages? Will (or should) churches or other institutions and associations that do not acknowledge same-sex marriages and civil unions lose their tax-exempt status, or the ability to receive public funds, or to participate in public contracts?
Thanks again for the invitation. I look forward to the conversation.