The First Amendment, Varieties of Neutrality, and Same-Sex Marriage

2009 ◽  
Vol 2 (3) ◽  
pp. 353-377
Author(s):  
Emily R. Gill
Keyword(s):  
Public Policy ◽  
Sexual Orientation ◽  
First Amendment ◽  
Religious Belief ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Beliefs And Practices ◽  
Free Exercise ◽  
Same Sex Couples ◽  
Free Exercise Of Religion

AbstractThis article compares the difficulty in achieving a public stance of neutrality toward sexual orientation with the difficulty in achieving neutrality toward religious belief. Strict separation treats religion as a private commitment, with firm limits on government cooperation with religion and strong protection for free exercise. Formal neutrality discounts religion as a basis either for conferring special benefits or for withholding generally available benefits. Positive neutrality attends to the practical effects of public policy, sometimes requiring an abandonment of nonestablishment in favor of policies that allow for greater protection for free exercise of religion. I argue that none of these forms of neutrality establishes impartiality regarding either religious belief or same-sex marriage. First, Michael McConnell's “disestablishment” approach to sexual orientation and same-sex marriage instantiates are neither neutrality nor civic equality. Second, while formal neutrality may render an establishment more inclusive, it may exclude those whose beliefs and practices are not deemed in accordance with public purposes. Third, although positive neutrality may remove burdens from same-sex couples whose conscientious convictions may impel them to marry, it may still favor some kinds of practices over others.

Marriage Equality, Public Accommodations Laws, and Religious Exercise

2019 ◽  
Author(s):  
Susan Gluck Mezey
Keyword(s):  
First Amendment ◽  
Religious Beliefs ◽  
Business Owners ◽  
The State ◽  
Marriage Equality ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Free Exercise ◽  
Same Sex Couples ◽  
Antidiscrimination Law

Opposition to same-sex marriage in the United States is frequently based on the religious belief that marriage should be reserved for a man and a woman. With most of the attention focused on wedding vendors, the clash between religious liberty and marriage equality has largely manifested itself in efforts by business owners, such as photographers, florists, caterers, and bakers, to deny their services to same-sex couples celebrating their marriages. Citing state antidiscrimination laws, the couples demand the owners treat them as they do their other customers. Owners of public accommodations (privately owned business open to the public) who object to facilitating the weddings of same-sex couples do so typically by asserting their personal religious beliefs as defenses when charged with violating such laws; they argue that they would view their participation (albeit indirect) in wedding ceremonies as endorsing same-sex marriage. As the lawsuits against them began to proliferate, the business owners asked the courts to shield them from liability for violating the laws prohibiting discrimination because of sexual orientation in places of public accommodation. They cited their First Amendment right to the free exercise of their religion and their right not to be compelled to speak, that is, to express a positive message about same-sex marriage. With conflicts between same-sex couples and owners of business establishments arising in a number of states, the focus of the nation’s attention was on a New Mexico photographer, a Washington State florist, and a Colorado baker, each of whom sought an exemption from their state’s antidiscrimination law to enable them to exercise their religious tenets against marriage equality. In these cases, the state human rights commissions and the state appellate courts ruled that the antidiscrimination laws outweighed the rights of the business owners to exercise their religious beliefs against marriage equality by refusing to play a role, no matter how limited, in a same-sex marriage ceremony. In June 2018, in Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission, the U.S. Supreme Court affirmed the state’s antidiscrimination law that guaranteed equal treatment for same-sex couples in places of public accommodations but reversed the Commission’s ruling against the Colorado baker. In a narrow decision, the Court held that the Commission infringed on the baker’s First Amendment right to free exercise by uttering comments that, in the Court’s view, demonstrated hostility to his sincerely held religious beliefs. The ruling affirmed that society has a strong interest in protecting gay men and lesbians from harm as they engage in the marketplace as well as in respecting sincerely held religious beliefs.

What Business do Businesses Have with the Free Exercise of Religion?

2018 ◽  
Vol 12 (1) ◽  
pp. 171-194 ◽  
Author(s):  
Judith Lynn Failer
Keyword(s):  
Sexual Orientation ◽  
Religious Freedom ◽  
State Law ◽  
Same Sex ◽  
Free Exercise ◽  
Private Citizens ◽  
Bed And Breakfast ◽  
Free Exercise Of Religion ◽  
The Right ◽  
Hobby Lobby

AbstractSince Burwell v. Hobby Lobby (2014), federal and state religious freedom restoration acts now extend the right to free exercise of religion to businesses. But what does it mean for businesses to have such a right? In this paper, I identify three implications of these new rights: they shift the burden for fulfilling the right to private citizens, and they conflict with businesses’ both commercial and democratic obligations. To illustrate how they become problematic, I draw on the case of In re Wathen (2015) where the owners of a bed and breakfast cited their business's religion as their reason for refusing to host a wedding reception for a same-sex couple, even though state law specifically prohibited commercial businesses from discriminating based on sexual orientation.

Would Scots Law Recognise a Dutch Same-Sex Marriage?

2003 ◽  
Vol 7 (2) ◽  
pp. 147-173 ◽  
Author(s):  
Kenneth McK Norrie
Keyword(s):  
Public Policy ◽  
The Netherlands ◽  
Private Law ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
International Private Law ◽  
Opposite Sex ◽  
The Relationship

The opening, in the Netherlands, of the institution of marriage to same-sex couples will sooner or later give rise to the question of whether the Scottish international private law rules relating to marriage will permit or even demand the recognition here ofsuch unions validly entered into there. It is suggested in this article that the proper approach is not to ask whether the Scottish court will recognise the relationship as the institution ofmarriage as such, but whether the Scottish court will give effect to consequencesflowingfrom thefact that the relationship has been sanctioned by the Dutch state. For many purposes the answer to that question is unavoidably yes, and it is argued that since that is so then on grounds ofprinciple, policy, and practicality the Scottish court should give effect to such consequences as it would in relation to a Dutch opposite-sex union. There is no public policy objection to doing so.

scholarly journals Same-Sex Marriage and Religious Exemption Under the Marriage Act: Where does Section 29 Leave Religious Objectors?

2014 ◽  
Vol 45 (1) ◽  
pp. 213
Author(s):  
Simon Matthew Wilson
Keyword(s):  
Sexual Orientation ◽  
Controversial Issue ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Legal Position ◽  
Definition Of ◽  
Religious Exemption

This article examines the Marriage (Definition of Marriage) Amendment Act 2013, which amends the Marriage Act 1955 to allow same-sex couples to marry. In particular, it examines the legal position of celebrants who wish to refuse to solemnise same-sex marriages on religious grounds, and attempts to reconcile these celebrants' religious freedoms with the rights of same-sex couples not to be discriminated against based on their sex and/or sexual orientation. While s 29(2) of the Marriage Act now contains a specific exemption for some classes of celebrants, the scope of this exemption is narrow, and not all celebrants are included. This article therefore examines the meaning of s 29(1) of the Marriage Act, and addresses the controversial issue of whether s 29(1) provides a broad exemption for all celebrants. This article asserts that s 29(1) does provide such an exemption, and accordingly all celebrants are able to refuse to solemnise same-sex marriages on religious grounds, despite the limitations in the s 29(2) exemption. 

Same-sex marriage and the Christian churches in Canada

2006 ◽  
Vol 35 (1) ◽  
pp. 3-23 ◽  
Author(s):  
Pamela Dickey Young
Keyword(s):  
Public Policy ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Christian Churches

Same-sex marriage is an important topic in Canadian courts, legislatures and churches today. This paper explores the sorts of official arguments put forth in public policy venues by Canadian churches and then proceeds to analyze these contributions.

scholarly journals Democratic Values, Religiosity, and Support for Same-Sex Marriage in Latin America

2017 ◽  
Vol 59 (4) ◽  
pp. 75-98 ◽  
Author(s):  
Michelle L. Dion ◽  
Jordi Díez
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Latin American ◽  
Capital City ◽  
Religious Values ◽  
Democratic Values ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Latin American Countries

AbstractLatin America has been at the forefront of the expansion of rights for same-sex couples. Proponents of same-sex marriage frame the issue as related to human rights and democratic deepening; opponents emphasize morality tied to religious values. Elite framing shapes public opinion when frames resonate with individuals’ values and the frame source is deemed credible. Using surveys in 18 Latin American countries in 2010 and 2012, this article demonstrates that democratic values are associated with support for same-sex marriage while religiosity reduces support, particularly among strong democrats. The tension between democratic and religious values is particularly salient for women, people who live outside the capital city, and people who came of age during or before democratization.

Freedom’s Frontiers: The Travails of LGBT Travelers

Pólemos ◽  
2018 ◽  
Vol 12 (2) ◽  
pp. 271-295
Author(s):  
David Austin ◽  
Mark E. Wojcik
Keyword(s):  
Sexual Orientation ◽  
Sexual Minorities ◽  
Positive Change ◽  
Legal Rights ◽  
Tourist Industry ◽  
Same Sex ◽  
Time And Space ◽  
Same Sex Couples ◽  
Cross Border ◽  
The Status

Abstract This article considers the status of same-sex couples whose lawful marriage in one jurisdiction may not be recognized in another, or who may face discrimination and criminal penalties for their sexual orientation. The article surveys positive developments that promote equality for sexual minorities rather than their punishment. The degree of positive change varies across countries. While traveling across borders, sexual minorities are often subjected to strange dislocations in time and space: they can accelerate through centuries of struggle to find freedom in foreign lands, or they can be hurled back into the darkness of the closet or, worse, detained in a prison cell. The article also focuses on some of the positive developments – legal and otherwise – that have led to the growth of a gay tourist industry; some of the problems that gay travelers may potentially encounter when crossing into countries where the legal rights of sexual minorities are not safeguarded; and some potential “solutions” that will allow gay travelers to engage in cross-border travel without feeling that they are being forced back into the limiting borders of the closet’s confines.

scholarly journals The Precarious Position of Same-Sex Divorce in Texas

2014 ◽  
Vol 1 (3) ◽  
pp. 779-800
Author(s):  
Shawna M. Young
Keyword(s):  
Legal Issues ◽  
Courts Of Appeals ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Legal Remedy

Currently, same-sex couples that are legally married in a jurisdiction that recognizes same-sex marriage may not be able to divorce if they move to Texas. Of the few cases tried in Texas, most courts refused to grant the samesex divorce because the courts refused to recognize the underlying marriage. Because these couples cannot simply return to the granting state due to most states’ divorce residency requirements, they cannot divorce and face untold issues due to this inability. While Texas does offer the opportunity for the couple to declare the marriage void, declaring the marriage void is not an adequate legal remedy and may not prevent property and other legal issues. Instead, Texas should analyze divorce as implicating rights separate from those implicated by marriage. Based on such analysis, Texas should grant same-sex divorces. While several authors have addressed this issue from a national standpoint, this Comment addresses the issue as it stands in Texas, where a jurisdictional split between the courts of appeals makes it ripe for discussion.

The Same Difference: Protecting Same-Sex Couples under the Domestic Violence Ordinance

2009 ◽  
Vol 4 ◽  
pp. 1-33 ◽  
Author(s):  
Puja Kapai
Keyword(s):  
Domestic Violence ◽  
Orientation Discrimination ◽  
Same Sex ◽  
International Human Rights ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Sexual Orientation Discrimination ◽  
Civil Remedies ◽  
The Subject ◽  
International Human

AbstractHong Kong recently amended its Domestic Violence Ordinance (“DVO”). During the deliberations, the issue of whether protection under the DVO ought to be extended to same-sex couples arose for discussion and has since been the subject of extensive debate. Religious and conservative groups have argued that including these groups within the DVO risks overhauling the traditional meaning of “family” and could implicitly legitimize same-sex marriage whilst others have insisted that failing to provide equivalent civil remedies under the DVO to such groups amounts to sexual orientation discrimination and is contrary to Hong Kong's international human rights commitments. This paper reviews the various arguments that have been raised against the inclusion of same-sex couples within the DVO and argues that Hong Kong's international and constitutional commitments to the principles of equality and non-discrimination require that samesex couples be brought within the purview of this legislation.

Marriage: Obligations, Benefits, and Access

Just Married ◽  
2015 ◽  
Author(s):  
Stephen Macedo
Keyword(s):  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
Special Obligations ◽  
The Future ◽  
Opposite Sex ◽  
The Many

This chapter examines the many “legal incidents” of marriage: the specific benefits, responsibilities, obligations, and protections that are associated with marriage by law. While critics focus on the special privileges or benefits that spouses acquire in marriage, those are balanced by special obligations. The chapter suggests that the whole package seems reasonably appropriate for both opposite-sex and same-sex couples. It also considers the ways in which marriage seems to promote the good of spouses, children, and society, along with the class divide that now characterizes marriage and parenting. It argues that this class divide, not same-sex marriage, is the great challenge for the future.

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