The Law Professors Huddle

Dale Carpenter has a long, smart post on same sex marriage and religious liberty. This is worth pointing out:

The really interesting question is why there have been so few conflicts. The main reason, I suspect, is common sense and forbearance on the part of both gay couples and those who object on religious grounds to gay marriage. Unless they have no other choices, few gay couples want to pay for marital goods or services from people who don’t want to provide them. Few service providers object to gay marriage on religious grounds and, as Laycock suggests, fewer still believe their faith requires them to refuse goods or services (or housing) to gay couples. Plus, they want the business.

Another reason we’ve had few conflicts is that this unusually religious and pluralistic country already respects and protects religious beliefs and practices to an extent unseen anywhere else in the world. There are the federal and state constitutions protecting religious freedom. Just about every antidiscrimination law protecting gays has been the result of legislative compromise in which the scope of the law was limited, or exemptions were added, to minimize conflicts with religious objectors in the most likely contexts (like religious groups, and small businesses and landlords). Additionally, half of the states require by statute or judicial decision a compelling state interest, enforced by means narrowly drawn, for any state policy that burdens religion.

Obviously, religious individuals, businesses, and organizations sometimes lose religious-freedom claims. But they also win a lot of the time, most recently and prominently when the California Supreme Court left undisturbed a lower court decision allowing a religious school to exclude two students having a suspected lesbian relationship. The religious school was not a business, said the state courts, and thus not even subject to the state’s civil-rights law.