Conflicts between religious exefcise and gay rights

Mark Tushnet mtushnet at
Mon Aug 4 11:27:41 PDT 2008

In connection with this discussion, it might be worth noting that prior to the Civil War there was, in the South, quite a vigorous discussion of why slavery was sancitoned by the Bible, and -- toward the end of the pre-war period -- why it was mandated by Ciristianity properly understood.

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

ph:  617-496-4451 (office); 202-374-9571 (mobile)

-----Original Message-----
From: religionlaw-bounces at on behalf of marty.lederman at
Sent: Mon 8/4/2008 12:10 PM
To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics
Subject: Conflicts between religious exefcise and gay rights
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?


-------------- Original message ----------------------
From: "Brownstein, Alan" <aebrownstein at>
> If we are talking about conflicts between gay rights and religious liberty, 
> surely this is a coin that has two sides to it. Many gay people see religion as 
> a sword that is being used to burden their liberty and equality rights. What we 
> have are two groups claiming basic autonomy rights with each seeing the other 
> side as a threat to be feared, rather than as people with basic liberty 
> interests that need to be accommodated. When we have one side of the debate 
> arguing that to avoid potential conflicts with religious liberty, gay people 
> should be denied the right to marry or to be protected against discrimination in 
> housing or employment, it is hardly surprising that the other side of the debate 
> is going to offer little sympathy to requests for religious accommodation.
> I continue to believe that while there will be some real conflicts between 
> religious liberty and gay rights in some circumstances, at a deeper level these 
> two assertions of autonomy rights can and should be positively reinforcing each 
> other. Sometimes this happens inadvertantly. The Equal Access Act has helped gay 
> and lesbian clubs be recognized at schools. But this was done over the 
> opposition of people who insisted that freedom of association and speech for 
> religious students should not be extended to gay students. To have the mutual 
> reinforcement of autonomy rights (that I think is possible) happen at a broader, 
> practical level, however, there would have to be some commitment to compromise 
> from both sides.
> Minor shameless plug, Doug. Take a look at the Findlaw column (published last 
> Friday) that Vik Amar and I recently
> wrote.
> Alan Brownstein
> UC Davis School of Law
> ________________________________
> From: religionlaw-bounces at [religionlaw-bounces at] On 
> Behalf Of Douglas Laycock [laycockd at]
> Sent: Monday, August 04, 2008 7:13 AM
> To: religionlaw at
> Subject: Defamation of Religion - and Gay Rights
> Mr. Diamond is quite right to see gay rights as the likely source of this kind 
> of litigation in the US.  Marc Stern at the American Jewish Congress (and a 
> participant on this list) has a great chapter forthcoming on litigation to date 
> over conflicts between gay rights and religious liberty and free speech.  The 
> Canadian speech cases are terrifying; the US cases in the context of schools and 
> employment are quite unprotective of speech.
> This chapter is forthcoming in a book (now comes the shamless plug) that I 
> edited with Robin Fretwell Wilson at Washington & Lee and Anthony Picarello, 
> formerly at the Becket Fund and now the General Counsel to the Conference of 
> Catholic Bishops.  The book is Same-Sex Marriage and Religious Liberty: Emerging 
> Conflicts, due out from Rowman & Littlefield in September.  Other contributors 
> are Jonathan Turley at GW, Chai Feldbum at Georgetown, Doug Kmiec at Pepperdine, 
> Charles Reid at St. Thomas (Minnesota), Wilson, and me.  I won't vouch for my 
> chapter, but I'll vouch for all the others.
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