That’s my argument at Public Discourse today:

Some astute observers have noticed the dimensions of the problem and called attention to it. The Becket Fund for Religious Liberty filed a brief in both marriage cases now pending in the Supreme Court, arguing that the Court should not interfere with democratic legislative processes in this field, because only such processes can result in public policies that will prevent church-state conflict in the future. The brief describes many of the problems I will discuss below, but in the end I think it is too hopeful that same-sex marriage and religious freedom may be reconciled by lawmakers to any significantly greater extent than by judges.


Two groups of prominent religious liberty scholars (one led by Robin Fretwell Wilson, the other by Douglas Laycock) have written letters (such as this one from Wilson’s group) to state legislators and governors considering same-sex marriage bills, imploring them to include various statutory provisions that would afford some protection to religious freedom. Both groups have signally failed to achieve much, if any, meaningful accommodation of religious freedom in the recent legislative enactments of same-sex marriage in New York, Minnesota, Rhode Island, and Delaware.


The victorious legislators either do not see the conflict, don’t care about it, or actually welcome its arrival, relishing the further victories yet to come over the “bigotry” of religious dissenters. The last of these possibilities may be the likeliest, as Robert P. George suggested nearly a year ago here at Public Discourse . If so, our situation is dire indeed.


Read the rest here.

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