Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination
Douglas NeJaime, Marriage Inequality: Same-Sex Relationships, Religious Exemptions, and the Production of Sexual Orientation Discrimination, 100 Calif. L. Rev. 1169 (2012).
As more states consider marriage recognition for same-sex couples, attention turns to the conflict between marriage equality and religious liberty. Legal scholars are contributing substantially to the debate, generating a robust academic literature and writing directly to state lawmakers urging them to include a “marriage conscience protection” containing a series of religious exemptions in marriage equality legislation. Yet the intense scrutiny of religious freedom specifically in the context of same-sex marriage obscures the root of the conflict. At stake is the central role of relationships in expressing one’s sexual orientation; same-sex relationships constitute lesbian and gay identity, and religious objections arise largely in response to such relationships. Marriage is merely one form of sexual orientation identity enactment, and religious objections to same-sex marriage are merely a subset of objections to sexual orientation equality. This Article argues for an antidiscrimination regime that protects same-sex relationships under the rubric of sexual orientation, and it resists the use of marriage equality legislation as a vehicle for undermining current sexual orientation-based nondiscrimination provisions. Even as the “marriage conscience protection” proposed by religious liberty scholars misapprehends the basis of the underlying conflict — that same-sex relationships are an expression of identity and that religious objections largely relate to that identity — its sweeping language threatens to undermine antidiscrimination protections and target lesbians and gay men based not primarily on their marriages but instead more generally on their same-sex relationships. It does so at a moment when antidiscrimination law is increasingly acknowledging the relational component of sexual orientation such that impermissible discrimination based on sexual orientation includes discrimination against same-sex relationships. By permitting religious organizations, as well as some employers, property owners, and small businesses, to discriminate against same-sex couples in situations far removed from marriage itself, the “marriage conscience protection” would threaten substantial progress made in antidiscrimination law. Worse yet, using the term “marriage conscience protection” to label instances of discrimination against same-sex relationships would hide an increasing amount of sexual orientation discrimination that antidiscrimination law is just beginning to adequately address.