Scholars' Conference on Same-Sex Marriage and Religious Liberty

May 4, 2006

On December 15, 2005, the Becket Fund for Religious Liberty hosted a private conference of first amendment scholars to assess the religious freedom impacts of legalized same-sex marriage.  The result of the day was a series of papers, which are approaching final form, and which will eventually be published by an academic press.  A list of the authors, the current titles of their papers, and a brief summary of each is below, grouped by topic.  Links to the papers themselves are at the bottom of this page.  The Becket Fund  filed an amicus brief defending the institution of marriage in the state of Maryland, largely using the findings of this conference.  To view the brief, scroll down or click here.

On April 25, 2007, the Becket Fund filed another amicus brief, this time in the case of Kerrigan et. Al. v. Commissioner of Public Health et. Al with the Supreme Court of the state of Connecticut.  To read the brief in full, scroll down or click here.

On July 27, 2007, The Becket Fund filed an amicus brief on this topic in the case of Varnum v. Brien, in the Iowa District Court of Polk County.  The brief covered three major questions regarding the conflict between legalizing same-sex marriage and preserving religious liberty in the United States.  Those questions are:

1. Whether redefining legal marriage to include same-sex couples will risk pervasive church-state conflict.
2. Whether legalizing same-sex marriage will harm religious liberty by creating the risk of civil suits against religious institutions that refuse to treat legally married same-sex couples as morally equivalent to traditionally married men and women.
3. Whether legalizing same-sex marriage will harm religious liberty by creating the risk that government will strip its benefits from religious institutions that refuse to treat legally married same-sex couples as morally equivalent to traditionally married men and women.

To read the brief in full, click here.

On August 1, 2007, The Becket Fund for Religious Liberty filed an amicus brief with the Rhode Island Supreme Court in the case of Chambers v. Ormiston.  You can read the brief in its entirety by clicking on this link.

Topic I – Civil Liability for Religious Institutions That Refuse to Treat Legally Married Same-Sex Couples the Same as Legally Married Different-Sex Couples. 

• Marc Stern, Esq., General Counsel, American Jewish Congress

"Gay Marriage and the Churches" (Discussing cases under existing antidiscrimination laws applied to religious institutions in the particular contexts of employment, religious school admissions, and religious student housing)

• Professor Chai Feldblum, Georgetown University

"The Moral Conflict: (Some) Religions and Marriage Equality"
(Application of existing antidiscrimination protections to objecting religious institutions is constitutionally justified, and incremental difference in intrusiveness resulting from same-sex legal marriage is not constitutionally different)

Topic II – Withdrawal of Government Benefits from Religious Institutions That Refuse to Treat Legally Married Same-Sex Couples the Same as Legally Married Different-Sex Couples.

• Professor Jonathan Turley, George Washington University

"An Unholy Union:  Same-Sex Marriage and the Use of Governmental Programs to Penalize Religious Groups with Unpopular Practices" (Discussing analogy to recent exclusion of Boy Scouts from access to government benefits (govt payroll deduction programs, use of govt parks) including constitutional defenses, especially free speech)

• Professor Robin Wilson, University of Maryland

"Matters of Conscience: Lessons for Same Sex Marriage from the Health Care Context" (Discussing risk of withdrawal of tax exemption in light of Loving and Bob Jones, and drawing on experience with legislative accommodations for abortion and contraception in health care context)

• Professor Doug Kmiec, Pepperdine University

"Same-Sex Marriage & the Coming Anti-Discrimination Campaigns Against Religion" (Response to Wilson and Turley)

Topic III – The Consequences of Employment Division v. Smith for Religious Liberty Disputes Generated by the Legalization of Same-Sex Marriage.

• Professor Cole Durham, BYU

"Rethinking Free Exercise Defenses: Responding to Burdens on Conscience Emanating from Same-Sex Marriage Norms" (The Supreme Court's Smith precedent will hurt religious institutions in this context by weakening their claims to conscientious objection under the Free Exercise Clause)

• Professor Bob Destro, Catholic University of America

"Religious Liberty & Same-Sex Marriage: Paradigm, Politics & Cultural Change" (Smith precedent will have little or no adverse effects on religious institutions in this context, because the pre-Smith jurisprudence was unhelpful, because free speech / association claims will always be stronger, and because legislative accommodations are more likely after Smith)

Topic IV – The Pressure on the Union of Civil and Religious Marriage Generated by the Legalization of Same-Sex Marriage.

• Professor Douglas Laycock, University of Texas

"Marriage and the Separation of Church and State" (The advent of same-sex legal marriage increases the tension in the already uneasy union of civil and religious marriage, and tends to lead to their separation)

• Professor Charles Reid, University of St. Thomas

"Marriage: Its Relationship to Religion and the State in American Law"
(The separation of civil and religious marriage is avoidable and desirable to avoid, notwithstanding the advent of same-sex legal marriage)

Resources & Documents

• Maryland Amicus Brief (PDF, 68.7KB)
• Connecticut Amicus Brief (PDF, 74.09KB)
• Iowa Amicus Brief (PDF, 744.46KB)
• Stern Paper (PDF, 585.29KB)
• Wilson Paper (PDF, 327.63KB)
• Laycock Abstract (PDF, 15.99KB)
• Feldblum Paper (PDF, 218.8KB)
• Turley Paper (PDF, 126.18KB)
• Kmiec Paper (PDF, 161.06KB)
• Reid Paper (PDF, 268.21KB)