Sunday, May 03, 2009

Clashes of Same-Sex Marriage with Religious Liberty

In this morning's LA Times, I found an interesting editorial by law professor Robin Wilson, called "The flip-side of same-sex marriage." In it, she argues that "it is possible to legalize gay marriage without infringing on religious liberty", though care must be taken to get the second part of that right. I agree with Prof. Robin Wilson that the enactment of marriage equality should be carefully balanced with religious liberty protections, and welcome her call to do so. When a pair of New Mexico photographers refused services for a same-sex wedding, and were fined for violating state anti-discrimination statutes, that was a clear unjust infringement of liberty. But this important dialog is not furthered by misinformation about the actual cases of conflict, and unfortunately Prof. Wilson trots out several overworked half-truths. That New Jersey church group who lost their property tax exemption status on a public pavilion that they refused to rent for a lesbian wedding? The tax exemption was granted for the pavilion expressly because the group promised to make it open to the public. They could either rent the pavilion selectively, or they could take the tax exemption and rent to everyone equally, but they couldn't have it both ways. The lost tax exemption was on the property tax for the pavilion only. The tax-exempt status of the religious group that owned it was never in question. The closing of Catholic Charities in Massachusetts? Catholic Charities was contracted by the state to provide adoption services. As a private entity, they would be free to discriminate according to their conscience, but by choosing to act as an agent of the state, they must treat all citizens equally. Latter-day Saints Family Services also provides adoption service in Massachusetts, exclusively to heterosexual couples, and has continued to operate since the advent of gay marriage, because they aren't funded by the state. Catholic Charities could have made the same choice, but chose not to. The crucial distinction that Prof. Wilson fails to account for is the difference between private entities and public entities (including entities acting on behalf of or subsidized by the state). Private entities should be entitled to considerable latitude for rights of conscience even when they conflict with values of equal treatment and non-discrimintion. For public entities, on the other hand, equal treatment and non-discrimination are paramount.

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