Same-sex marriage and religious liberty

Thomas C. Berg, Professor of Law and Public Policy at the University of St. Thomas, discusses potential conflicts between same-sex marriage and religious liberty, and why legislatures may do a better job than courts of balancing these two rights.
Thomas C. Berg
Tuesday, August 16th, 2011

Excerpt:
For all of Judge Walker’s lengthy fact-finding in Perry, he utterly fails to take religious-liberty issues seriously. He notes that “[p]rior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.” That is true about the church wedding, but there are many other potential conflicts (detailed, for example, here). Antidiscrimination and public-accommodation laws in California and other states could force many religious non-profits to give direct assistance to marriages or ceremonies that violate their tenets. Catholic Charities ceased providing adoptions in Massachusetts and, to a large extent, San Francisco because it faced being compelled to place children in same-sex households. A religious college that provides married-student housing might violate state law if it refused to house same-sex married couples. These groups can face civil liability or the loss of generally available government benefits such as tax exemptions or licenses.

Marriage ceremonies also affect small businesses – wedding planners, caterers – in which individuals directly lend their personal skills to facilitate marriages. An Albuquerque, New Mexico, wedding photographer had to pay more than $6600 in legal fees for declining to photograph a same-sex commitment ceremony. In short, religious liberty is a context where gay marriage may affect others directly. the rest