Impact of same-sex marriage rulings on strict scrutinyinreligious exemption cases

[Roger Severino]

Chip, I admit that exactly one paragraph of my article discussed hate
speech prosecution as a potential
threat and I cited as support the case of Sweden's Ake Green who was
sentenced to a month in jail for "inciting
hatred" because of anti-gay preaching (incidentally, I noted in the
article that the conviction was later overturned on appeal).  Still, I
was never fully
comfortable with that paragraph so I changed it significantly when I
updated the article and plan to drop it completely in any future writing
because I agree with you, it's just not a significant enough threat in
America for political and constitutional reasons.  

-Roger Severino


> From: iclupu at law.gwu.edu
> Subject: RE: Impact of same-sex marriage rulings on	strict	scrutinyinreligious	exemption cases
> To: religionlaw at lists.ucla.edu
> Date: Fri, 10 Apr 2009 09:55:29 -0400
> 
>
For a number of years, religious conservatives have been using these
religious liberty arguments as a sword (a club might be a better word)
to buttress political campaigns against same-sex marriage. Roger
Severino's article fits that model -- he included over-the-top "threats
to religious liberty" (like "hate speech" prosecutions of pastors for
anti-gay sermons -- Roger never mentioned that U.S. law would firmly
preclude that) -- along with many other more realistic threats as a
means to argue against same-sex marriage and other gay rights, and that
set of arguments made its way into the political debate in California
and elsewhere.
> 
> Now that the winds have started blowing
the other way (backlash to Prop 8, Iowa court ruling, Vermont
legislation, legal results in cases involving commercial enterprises
and public accommodations), religious conservatives want to use
religious liberty as a shield. With respect to legitimate claims of
right (sermons by pastors, faith community selectivity about who may
get the sacrament of marriage), virtually no one on this list or
elsewhere wants to break that shield. But religious conservatives also
want discretionary political accommodations, such as exemptions from
laws governing adoption agencies, employment practices by government
contractors, and conditions of access to publicly subsidized benefits.
> 
>
So my question is this -- are the proponents of these exemptions really
interested in "live and let live"? Or is this just "let us live" and
we'll keep fighting against the right of others to live in equal
dignity? If the latter -- this is one-way toleration -- it deserves no
respect. If the former, I think that people need to see some evidence
of good faith. So how about these for starters: In explicit exchange
for carefully crafted exemptions for religious organizations and
communities (not landlords and doctors and photographers), those
communities promise to support repeal of federal DOMA, repeal of state
DOMA's, non-interference by the U.S. House of Reps with same-sex
marriage policy in DC, and promise the end of opposition to the
extension of same-sex marriage (no more Prop 8's).
> 
> Is there a political deal that can be struck here?  (I could support it.) Or is all this just a one-way demand for respect?
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