3/29/2015—For the last several years, I participated in a group that urged legislators to enact compromises on the issue of gay marriage. The legislature would amend the state’s marriage law to allow gay marriage, while at the same time enacting a religious exemption from participating in gay marriage. The group’s intellectual leader was the nation’s leading expert on church state, Douglas Laycock.
The group’s raison d’être has disappeared because the courts have brought about gay marriage judicially, thus leaving legislatures only to deal with the issue of religious exemption.
But religious exemption by itself, without the compromise of permitting gay marriage in the first place, presents a serious political problem. To understand the problem, and to see how it is playing out in Indiana right now, the reader must understand that there are two ways to think about a religious exemption from any kind of general law.
Perhaps the classic way of thinking about a religious exemption is to imagine a Jewish or Muslim prisoner who requests not to eat pork. The religious believer is focused only on his or her own religious life in such an example. The religious exemption is not intended to be a protest against the policy generally of prisoners eating pork.
But now imagine a devout prison guard, perhaps a Roman Catholic, who opposes the death penalty. The guard requests a religious exemption from participating in an execution partly out of concern for his or her own religious life but partly also as a protest against the underlying policy of the death penalty.
It is not usually necessary to distinguish between these two ways of thinking about religious exemptions because the religious believer in the second situation is usually such a minority that the protest part of the exemption is practically insignificant, politically speaking. The prison guard might hope to delegitimize the death penalty through a religious witness, but has no realistic expectation that this will happen.
But now consider the case of gay marriage. Although proponents of religious exemptions like to frame the issue in terms of the first example – – the 70-year-old Florist, who only wishes to be left alone by a gay couple about to be married – – the clearly political message being propounded by requests for gay marriage exemptions is opposition to gay rights. Religious believers are using exemptions to try to halt or retard the legitimation of gay marriage in particular and gay rights in general.
It is really not fair for proponents of religious exemptions in this context play such a double game. That is why compromise, like the Utah example in which discrimination on the basis of sexual orientation was linked with a religious exemption, can work, whereas simple religious exemptions spark controversy, as in Indiana right now.
I am not suggesting that anything can be done to limit the problem of religious exemptions in the current political context. But it would be helpful to think in these terms. It would help explain to religious believers who are not involved in the gay-rights issue to understand why people might oppose religious exemptions. And it would also help proponents of gay rights and gay marriage to more clearly delineate what they can accept and cannot accept by way of religious exemptions.