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May 05, 2009


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Uzair Kayani

This is an excellent discussion.

At first it seems that statutory protection for religious organizations is unnecessary- the Free Exercise Clause and its state constitutional cognates should be enough. The trouble is that if we do not add protections via statute then there is a risk that the courts will expand constitutional protections instead. They may extend Free Exercise doctrine and perhaps restrict Establishment Clause jurisprudence.

It does seem better to preempt expanding constitutional protections by creating statutory ones. This is so for two related reasons. First, as Professor Laycock notes, two equally important rights are in conflict here: the extension of Free Exercise will encumber gay couples, and religious accommodations for them will encumber religious people. There is no trump card. Conflicting rights of this sort may be easier to deal with at the statutory level. Second, this is an area where public views seem to have changed quickly. However these religious protections are created, they are likely to be revised more frequently than other civil rights protections. Statutes may be easier to revise than state or federal constitutional precedents.

Two added benefits of such statutory protections may be lower litigation costs and greater democratic legitimacy.

The scope of these protections seems arbitrary to me, though. I do not see how giving someone housing or an education offends religious doctrine as opposed to quasi-religious preferences. But I entangle myself.


This is a legal blog, so you are justified in considering only the legal perspective. However, there is more at stake here than resolving two claims to legal rights. The underlying disagreement has more to do with the impact that law has on society than anything else. If gay marriage is sanctioned by law, then it becomes a social norm. If gay marriage is a social norm, then religious people are more likely to be perceived as bigots who are outside of the norm. This is not about the law, but about the message the law sends.

Regardless of what you think that message should be, the message the law sends will have an important impact on society. If nothing else, expect greater marginalization and even discrimination against religious minorities that do not favor gay marriage. Maybe this is just the price we are willing to pay to combat intolerance, but your post is woefully ignorant of the social aspect of this issue.

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