Joe Carter responds:
Sullivan’s opinion is in the minority of those who are familiar with the issue. As I pointed out in my previous post on this topic, the scholars who participated in The Becket Fund conference many of whom support gay marriage were unanimous in concluding that there would indeed be a conflict between religious liberty and same-sex marriage. To get a better understanding of what we can expect, Sullivan should read the papers of Marc Stern, Esq., General Counsel, American Jewish Congress; Professor Chai Feldblum, Georgetown University; Professor Jonathan Turley, George Washington University; Professor Robin Wilson, University of Maryland; and Professor Doug Kmiec, Pepperdine University.
Here's part of a post by Dale Carpenter about religious freedom and marriage equality from earlier this year:
These examples, and others given in the NPR report and by gay-marriage opponents, illustrate many things. They show that there are indeed antidiscrimination laws that apply to those who provide services to the public. They show that these antidiscrimination laws sometimes require individuals and organizations to do things that these persons and organizations claim violate their religious beliefs. They show that conflicts between antidiscrimination laws and religious belief often wind up in court, requiring judges and other decisionmakers to decide how the conflict should be resolved under the law and the Constitution. They show that on at least some occasions antidiscrimination laws are held to trump religious beliefs and that, as a result, religious individuals and organizations must sometimes decide whether to comply with the law or to stop providing services to the public. They even show that many of these disputes arise in the context of religious actors who object in particular to gay relationships.
What these examples do not show, however, is that gay marriage is "repressing" or "obliterating" religious rights or that "a storm is coming" because gay couples are marrying. With the exception of the Vermont clerk refusing to perform a civil union ceremony (about which more below), none of them involve a claim of discrimination provided by the gay couples' status as married or as joined in a civil union or domestic partnership. All of the cases involve the application of state laws barring discrimination on the basis of sexual orientation that pre-date the official recognition of gay relationships. Neither the viability of the discrimination claim nor the viability of the religious objectors' desired exemption turns on whether the gay couple is officially recognized. In most of the cited cases, in fact, the couples' relationship was not recognized by the state, but adding such a status to the cases would change nothing about their legal significance.
Carter also addresses my question about civil unions:
I’ve been on record as supporting a form of civil unions for over four years. In fact, in November 2004 I wrote about it on my former blog. I noted that Dr. James Dobson and Focus on the Family Action, supported a bill in Colorado that would facilitate certain contractual obligations or legal arrangements for any two "unmarried persons who are excluded from entering into a valid marriage under the marriage laws of this state." I too supported the bill and believe that an expanded form of the proposed reciprocal-beneficiary contracts is the model for civil unions iin America.
Where Sullivan and I likely differ, however, is on the question of who should be allowed to participate in such civil unions. To me the civil unions should cover a broad range of domestic situations, such as two elderly sisters who share a home or a widowed parent of an adult child who has Down’s syndrome or other potentially disabling condition. Such legal protections should be completely desexualized and open to any two adults who desire to form a contractually dependent relationship.
This is not support for civil unions. It is a simple codification of laws that enable any two people to make legal contracts. Every heterosexual already has access to both civil marriage and any or all of these other potential relationships. Homosexuals are uniquely discriminated against. Carter's proposal is actually designed to render gay relationships invisible and asexual. They are neither. It is designed to entrench the inferiority of the commitment of a gay person to his or her spouse in the law. It codifies inequality.
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