The University of Chicago Law School Faculty Blog

[Civil Unions]: When Reasonable Isn't Reasonable

Doug Laycock is nothing if not reasonable. But sometimes reasonable is not right. The most important area of disagreement he addresses, and the one most central to this discussion, concerns the appropriate breadth of the religious exemption that would give individuals and organizations a legally-recognized right to discriminate against gays and lesbians.

At the outset, I must concede that Doug is correct that I misread the breadth of his proposal. Or, more accurately, in my discussion of this issue I focused on Rick Garnett’s version of the exemption rather than on Doug’s. In an April 20 letter to the Speaker of the House of the Connecticut legislature, Rick and three other law professors called upon the Connecticut legislature, in the wake of the Connecticut Supreme Court’s decision holding the denial of same-sex marriage unconstitutional, to enact a law that would exempt any “individual” from any law of the state, “including but not limited to laws regarding employment discrimination, housing, public accommodations,” etc. “for refusing to provide services, accommodations, advantages, facilities, goods, or privileges,” whenever recognizing the legitimacy of a same-sex marriage would “violate their sincerely held religious beliefs.” It was primarily to this proposal that I was responding in my May 5 post.

More on Civil Unions and Religious Liberty

I have little to add to Doug Laycock's careful response to Geof Stone's forceful post regarding, among other things, Doug's and my support for broader religious-freedom protections than the ones contained in the Illinois proposal that prompted Geof's original op-ed.  As Doug explains, Geof seems to have assimilated our support for religious-liberty exemptions -- support that, in Geof's original op-ed, he said was "reasonable" -- to the views of Herman Talmadge, Theodore Bilbo, etc.  This assimilation is, certainly, rhetorically powerful, but it seems, to me, dissonant with the irenic tone of his initial piece ("It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere.").