Conflicts between religious exefcise and gay rights and "cudgels"

[Volokh, Eugene]

	I wonder which way the "cudgel" is being "exploited" (or maybe
both).  It seems to me, for instance, that religiously motivated
discrimination in public accommodations against gays is likely also a
relatively infrequent phenomenon, partly because it's financially costly
to the discriminators, and one that is not terribly tangibly harmful
(setting aside symbolic offense, which cuts both ways) to the target.
Yet we see cases in which businesses and property owners that provide
services are being forced to provide such services to same-sex
commitment ceremonies (or being punished by the law for failure to
provide such services), even though I suspect that the same-sex couples
could get such services -- often at a higher quality -- just fine from
lots of other providers.  Couldn't one equally say that equal rights law
is here being exploited as a cudgel against religious objectors?

	Moreover, the very analogy to race discrimination, it seems to
me, shows why the practical concerns of religious groups that have
religious objections to homosexuality are reasonable.  Consider how the
law has treated even religious groups that engage in race
discrimination, for instance in cases such as Bob Jones.  If the law
adopts the proposed analogy between sexual orientation discrimination
and race discrimination, it seems quite plausible that similar threats
(e.g., loss of tax exemptions) will manifest themselves.  Likewise,
we're already seeing some denial of access to generally available
benefits to groups that discriminate in their leadership and membership
choices based on sexual orientation; if that's adopted, denial of access
to benefits in the form of generally available tax exemptions -- a
hugely important matter to all nonprofits -- could well follow.  Now I
should stress that I personally don't share the views of the religious
groups that stand to lose from this, and in some situations I condemn
their views.  But it's a mistake, I think, to pooh-pooh their concerns
as being about "relatively infrequent phenomen[a]" that (the implication
seems to go) shouldn't really matter to the groups.

	I should note that I agree that the concern is about sexual
orientation discrimination bans, and not same-sex marriage as such.
Still, I think one effect of the elimination of governmental
discrimination based on sexual orientation in marriage will have is an
extra push for enacting and broadening antidiscrimination laws.  Again,
one could argue that this is a good effect; but it does seem like a
likely effect.  Another effect may well be to lead to the rejection of
religious exemption claims under state RFRAs and similar regimes; right
now, one can argue -- in, for instance, the New Mexico wedding
photographer case -- that the state's failure to recognize same-sex
marriages undermines the state's compelling interest argument for
forcing wedding photographers to photograph same-sex marriages on equal
terms with legally recognized marriages.  Once same-sex marriages are
legally recognized, that argument will no longer be present.

	Eugene

Marty Lederman writes:
 
> I tend to agree with Alan here.  Of course there are 
> occasional conflicts between gay rights laws and religious 
> beliefs -- principally in the commercial sector, such as in 
> employment and housing rentals -- but is it really that much 
> of a problem?  Or is it a relatively infrequent phenomenon 
> that's being exploited as a cudgel against gay rights?  (A 
> sincere question -- I really am uncertain of the answer.)
> 
> I'm confident -- given that Doug and Anthony edited it -- 
> that the new volume will be very worthwhile, fair and 
> balanced.  But I have some trepidation that it, and similar 
> endeavors, will unnecessarily add fuel to this fire.   
> Same-sex *marriage* implicates religious liberty?  How so?  
> It's not as if religious congregations will soon be compelled 
> to offer membership to gay and lesbian couples, right?  Or 
> that ministers will be legally required to perform same-sex 
> ceremonies.
> 
> Of course, many people are deeply uncomfortable with same-sex 
> marriage, and such discomfort often derives from (or finds 
> sustenance in) certain religious moral codes.  But that's not 
> the same as a threat to religious liberty, is it?  
> 
> I suppose this is one way of framing my doubts here:  Is this 
> very different from the religiously motivated resistance when 
> race- and sex-discrimination norms began to find favor in the 
> law?  Twenty years from now, will today's religiously 
> oriented opposition to gay rights seem as distant and odd to 
> the ReligionLaw list of 2028 (still administered by Eugene, 
> one can hope!) as the 1960's resistance to race-and 
> sex-discrimination laws looks to us now?