Same-sex marriage and religious exemptions

[Berg, Thomas C.]

I worked in the effort to get the exemption in the ENDA bill broadened in 2007 from a very narrow provision to one analogous to the Title VII religious-hiring exemption.  I agree that that's basically the right way to handle the bill.  At that time, part of the political dynamic was that the Democrats had only narrow majorities and Bush was sure to veto it otherwise (although he might have done so regardless).  Those are no longer true.  But probably, at least, getting to 60 and beating a filibuster requires the broader exemption.

-----------------------------------------
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, Law,
     and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu<mailto:tcberg at stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
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From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [laycockd at umich.edu]
Sent: Friday, April 10, 2009 2:21 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Same-sex marriage and religious exemptions


Thanks Chip; that's helpful information.  Of course it hasn't passed yet, but maybe it will, and with appropriate exemptions.

The other way to read that is that it highlights the advantages of doing a deal in Congress instead of in the 50 states.  State legislation gay rights tends either not to pass (in red states), or to pass with very narrow exemptions (in blue states).  I won't claim that there are no exceptions, but surely that's the dominant trend at the state level.

Quoting "Ira (Chip) Lupu" <iclupu at law.gwu.edu>:

> Doug writes:
>
> "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."
>
>> From everything I have heard, no version of ENDA (the bill that
>> would extend Title VII to discrimination based on sexual
>> orientation) can possibly pass unless it includes the same exemption
>> for religious organizations (not just "houses of worship") as the
>> current Title VII exemption for such organizations to engage in
>> religious selectivity.  If that is right, such an exemption will
>> include a broad range of religiously affiliated entities (i.e.,
>> schools, charities, etc, organized for religious purposes).  So
>> Doug's "pretty much" in the first sentence above may be obscuring
>> some very important matters.
>