Additional materials on the conflict between religious liberty and marriage equality

Below are some materials on the issue I mentioned in class yesterday, about the collision between religious liberty and marriage equality (or LGBTQ rights generally).

First, some elaboration on the conflicts, as I think I rushed through them. First, following Obergefell, same-sex couples are legally entitled to marriage licenses from government officials. But what happens when the county clerk (or other official responsible for providing licenses) has a religious objection to same-sex marriage and objects to providing that license to the same-sex couple? Second, state and municipalities have public-accommodations laws that prohibit discrimination against customers for a host of reasons, including sexual orientation. But what happens when a business such as a wedding photographer or wedding-cake baker has a religious objection to same-sex marriage and objects to providing those services for a same-sex wedding?

That is the collision between LGBT rights and religious liberty: Whether the religious believer is entitled to an accommodation from these laws to not comply with their obligations towards LGBT and same-sex couples. And whether there is a way to balance the rights of the religious objector with the rights of the same-sex couple.

So:

1) Kim Davis was the clerk of Rowan County, Kentucky. She refused on religious grounds to provide licenses to same-sex couples and to have her name (as county clerk) on those licenses. She was sued by two couples, ordered to issue the licenses, refused, and was jailed for contempt of court. She also was sued for damages and her immunity defense was rejected. SCOTUS last month denied cert, with Justices Alito and Thomas dissenting from the denial with a harsh attack on the "ruinous consequences" of Obergefell for religious liberty.

 2) Fulton v. City of Philadelphia arises from the City of Philadelphia's decision to stop using Catholic Social Services to provide foster-care services because CSS refused, on religious grounds, to work with same-sex parents as the City required in its efforts to ensure equality in its legal operations. SCOTUS heard argument last week--here is the transcript, here is the audio. A couple things to note:

    • Justice Alito pushed questions, drawn from language Obergefell, about whether opposition to same-sex marriage reflects bigotry or whether there can be good-faith and honest reasons for it, contra race discrimination.

    • Justice Kagan pushed the Solicitor General (the US was amicus in the case) about whether government has a greater interest in eradicating race discrimination than LGBT discrimination. This goes towards whether there must be a religious accommodation from general obligations such as public-accommodations laws. If the answer is yes, then government could compel wedding photographers to provide services for inter-racial couples (which it does) even if it cannot compel them to provide services for same-sex couples.