Same-sex marriage and religious exemptions

[Douglas Laycock]

It is patently easier to do one deal than to do fifty.  And on this issue, it is easier to do a deal in a legislature where both Vermont and Alabama are represented than to do a deal in Vermont or to do a deal in Alabama.  Maybe we want to let Vermont and Alabama each go their own way on marriage; maybe we even want to let them each go their own way on free exercise of religion; those are two distinct issues different from the political possibilities of deal making. 

American legislatures have enacted lots of religious exemptions, but not many controversial exemptions with an organized interest group in active opposition.  On the gay rights issues, religious conservatives are pretty much getting exemptions only within the church itself -- not even their affiliated religious organizations -- which is to say, they are getting only those exemptions that no sensible person on the gay rights side actually opposes. 

Quoting hamilton02 at aol.com:

> Boerne only makes the deal harder to strike if one assumes the 
> federal government should drive social policy in every state from 
> Washington DC and only if one is inclined to engage in blind 
> lawmaking that operates at an abstract level without reference to 
> facts.  All Congress could do here is foreclose the 50 state 
> experiment in finding the right balance for everyone.
> In light of history, it is patently ridiculous to argue that it is 
> ever too late for religious exemptions in this country.  Religious 
> entities have both political access and power disproportionate to 
> their numbers even if they do not win every single request they make. 
>  J Scalia was empirically correct when he said in Smith that the 
> American legislative system is inclined toward exemptions.
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: Douglas Laycock <laycockd at umich.edu>
>
> Date: Fri, 10 Apr 2009 10:51:08
> To: <religionlaw at lists.ucla.edu>
> Subject: Same-sex marriage and religious exemptions
>
>
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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