Same-Sex Marriage and Religious Objections

There are three reasons why Professor Berg's argument does not quite come full circle.

First, the suggestion that marriage rights have to be balanced equally with religious rights, in general, assumes the value judgment that those rights are of equal weight. In this way, Professor Berg, like many colleagues influenced by the classical liberal (lowercase "l") foundations of our constitutional and legal philosophy, suggests that individuated rights are the central values in the Constitution, leaving little guidance on how to mediate between those rights. I do not believe that to be the case, but even if I concede the philosophical point, American society has already proved him wrong. As I have argued here, the pervasive existence of public accommodations laws that ban this type of discrimination manifests the public's judgment that cooperation and equality are more important to us than radically individuated religious observance.

Second, even if you do not believe that our society has made that value judgment — it is indeed up for debate — there is a qualitative difference between a right of inclusion and a right of exclusion. In re Marriage Cases and the Massachusetts same-sex marriage decision, Goodridge v. Department of Public Health, included the gay community in the institution of marriage; religious exceptions to such inclusion excludes the gay community from public accommodations. Normally, exceptions to default rules require special justification. They are rarely of equal value to the basic right in question. And, they are meant to be narrow. Professor Berg would extend the right to exclude the gay community from public accommodations to anyone who follows a conservative religious ideology, significantly expanding the orbit of discrimination.

Third, it makes no sense that Prop 8 — the ban on same-sex marriage in California — was a rational public response to a California Supreme Court decision (In re Marriage Cases) that inadequately protected religious liberty. Professor Berg cites from an amicus brief from the Becket Fund for Religious Liberty argued in Perry: "Since the California Supreme Court left Californians with an all-or-nothing choice between same-sex marriage and full protection for the rights of conscience, Proposition 8 was an entirely rational response to the threat to religious liberty." No, it wasn't. A rational response would have been an initiative (assuming we needed an initiative) that codified religious exemptions to default marriage recognition. If the problem was the lack of religious protection, then the solution to the problem was to add religious protections, not overturn the entire law. Prop 8 was an overreaction, and thus an irrational reaction.

Professor Berg is not wrong about the relative institutional abilities of courts and legislatures: it is certainly harder for courts to adequately craft rules that balance competing interests. But, that does not mean that Prop 8's discriminatory ban on the entire institution of same-sex marriage was a rational response to a much more narrow problem.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.


  1. says

    this is how it works in Canada. Gay Marriage is legal across the country. those that don’t support gay marriage are not “forced” to perform marriages for gay people.

    LGBT couples don’t want bigots performing their ceremonies anyway.

    when it comes to civiil servants, they have a job – they have to do their job. there is no room for their “religious beliefs” in their roles as civil servants.

    this is just basic logic.

    religious arguments against gay marriage make as much sense as jews and Muslims uniting to ban gentiles from eating pork.

  2. Mike says

    “religious arguments against gay marriage make as much sense as jews and Muslims uniting to ban gentiles from eating pork”

    I’ve never actually thought about it in those terms, but that is an excellent analogy! I wish people would use it in response to these ridiculous religious arguments.

  3. K in VA says

    I agree with everything you say, and I’d add this:

    There’s a practical problem when you try to extend discrimination protections beyond clergy (and Berg makes it plain that he’d like to extend protections to, for example, caterers and wedding photographers): How many bigots would suddenly claim to have found religion, and then try to use their faith as an excuse to continue discriminating?

    I remember lots of segregationists exploiting religion as an excuse for discrimination (but it’s in the Bible!). It didn’t work then, and it shouldn’t work now.

    Private groups (and church congregations are such) can pick and choose who they want as members. Persons offering public services (florists, for example) and persons offering public accommodatins (hotels and restaurants) must be available to all the public, even people they don’t like.

  4. Daniel says

    Also, what if there were a sect of the Mormon church that wanted to retain the ban on black congregants that was lifted in 1978? And as part of this belief, not serve black people, not allow them on the premises of their churches, etc. etc.?

    What ever happened to separation of church and state?

  5. prophet says

    Whoa, Prof. Berg, if we started to try to tailor our laws to the religious preferences and beliefs of all individuals we would have no laws at all.

  6. says

    Any ‘religious exemption’ law is a violation of the first amendment. If we give christianists an exemption from one law, what’s stopping them from feeling entitled to an exemption from others? Could a ‘christian’ farm then decide to own slaves? If you give a rat a cookie…

    Equality does not infringe on the first amendment rights of ANY individual. A christianist can still avoid contact with gay people as long as they stay at home or in church and avoid public property. However, if that person wants to open a business or get a job, then they must play by the same rules as EVERYONE else.

    If we start handing out religious exemptions for every thing christianists feel uncomfortable with, then I’m going to start my own cult that says I need a religious exemption to force my employer to fire all the women, hire only men under 25 and enforce a dress code that prohibits shirts.

  7. John D says

    Daniel, though I would not join a religious group that discriminated on the basis of ethnic background, private groups are permitted to that. Religious groups can even discriminate on the basis of religion (“Miss, we’ve decided that there just isn’t room for an evangelical in our synagogue.”)

    The Supreme Court has found that freedom of association works both ways. After all, they recently found that a gay softball league could limit the number of straight members (and that they could question members about their sexuality).

    Since Mormon churches and temples are not places of public accommodation, they get to do that. They don’t even let all Mormons into their temples.

  8. Fodolodo says

    I think the core difficulty with his position is the third point. The California Supreme Court didn’t present California voters with an all-or-nothing choice; the people who wrote Prop. 8 did. They could have written an initiative or a constitutional amendment with the kinds of exemptions from participation in marriage ceremonies that Berg wants, and not only would it have probably passed, but it would have been much less vulnerable to judicial challenge than Prop. 8. If the district court decision stands, they still can.

    Why didn’t they? Because opponents of same-sex marriage are interested in banning same-sex marriage, not accommodating religious liberty in the context of same-sex marriage. That’s a choice they should have to defend in court. And people interested in religious accommodations broader than those already available should attempt to bring those about by amending anti-discrimination laws, not by consigning same-sex couples to an inferior status.

  9. Charlie says

    Only Mormons are allowed inside of Mormon Temples.

    I am not sure how this jibes with anti-discrimination law. If the toilet clogs can only Mormon plumbers repair it?

  10. marshallt says

    If Christians are allowed to discriminate against me because of their religious beliefs, can I then, as an atheist discriminate against them?

  11. Bob Conti says

    Moreover, California already has a law that bans businesses that provide services to the general public from refusing to provide those services to people on the basis of, among other things, sexual orientation. Accordingly, there has already been a legislative determination in Califonria that such discrimination violates public policy. Accordingly, a photographer who refuses to provide services to a same-sex couple for their Christmas Card photo (along with the two dogs… sorry, just assuming here) can lodge a claim for violation of the Unruh Act.

  12. brenda says

    Ah! Marshallt, there’s the rub! Religious people of all stripes would never countenance such discrimination and Christians ROUTINELY break their own rules by not doing unto others as they would want done to themselves.

  13. Mark says

    My religious beliefs include the biblical mandate to slay my disobedient children. How DARE the evil socialist activist liberal state tell me I cannot??!!! They’re violating my RELIGIOUS LIBERTY!!!

  14. Matt says

    The religious liberty argument is just a red herring.

    And courts are correct to discuss only the practices of the religious organizations themselves, and not the religious beliefs of individuals.

    We don’t allow people to break other laws just because their religions require them to. No one is raising a fuss about that. The argument is just a trick to make their bigotry sound legitimate.

  15. says

    the gay marriage bans have nothing at all to do with “religious liberties” and everything to do with anti-gay bigots being furious that LGBT people are being legitimized in society.

    that’s it, that’s all, and we need to all start recognizing it.

  16. DoTheRightThing says

    My thoughts are along the same line as Little Kiwi’s. You cannot discriminate against anyone even if it goes against your religious beliefs. There is no way Christians would be allowed to not serve or do business with Jewish people just because they do not believe in Jesus. A wedding photographer cannot refuse to do a wedding simply because he/she does not believe in same-sex marriage. Professionals put personal beliefs and feelings aside and do the job they are hired to do.

    These weak arguments people are making are tiresome. Same-sex marriage should be legal and recognized by all levels of government. End of story.

  17. says

    The court / legislature distinction is why VT’s path back in 2000 was so interesting. The court ruled that discrimination was illegal, but gave the legislature 6 months to come up with a way to make unions for same sex couples equal, either through marriage or “some other status.” They came up with Civil Unions, which no one wanted, but the dialogue a) gave us the first unions in North America that were really marriage by another name on the state level, absolutely equal and b) paved the way for the movement to marriage via the legislature in 2009.

  18. Pete n SFO says

    It is true. Religious people will be required to make available any service which they provide to the general public. If they don’t want to serve the general public, they ought not to be in business.

    This is a red herring of bigotry; they perform services all the time for people that hold different beliefs and/or views. Now, b/c it’s gay people their integrity has reached a tipping point?


    F-you, you f’n bigots!

  19. Rin says

    Ezra cannot have it both ways for minority rights (courts versus legislation). He uses as his argument that “public good” is more important than “individual rights and freedoms” the (his words) “… pervasive existence of public accommodation laws”, ie. legislation.

    Pardon? Is he suggesting that having people legislate public accommodation laws makes them right? What happens when they don’t legislate in favor of an opinion you support?

    The rights of individuals appear to be only important to individuals within a minority when the minority is so insignificant as to be unable to influence public opinion and receive legislative and/or public support. It is their desire then to ask courts to counter-balance because their individual freedoms are too important to leave up to legislation or the court of public opinion.

    Legislation occurs for many reasons, some good, some bad, but mostly capitalist. We do not live in a Democracy where we are able to vote individually for rules that will be placed upon all. We live in a representative democracy that has shown itself to be filled to the brim with corrupted, self-interested and self-serving people. To use their legislative choices as any sort of justification to override Constitutionally-protected rights is ridiculous.

    An individual is also a minority. A minority of one, but still a minority as the Constitutions framers would have viewed them. I think that there were very good reasons why individual rights and freedoms should be preserved. History has shown us over and over again what happens when individuals are asked, aka “forced” to give up individual freedoms for a greater good.

    Sure, a Stalin doesn’t show up right away to remind you why you shouldn’t trust those greater good agents when they show you posters of a brave new world, but they come all too quickly once you start to join in the greater good fun.

    The right to marry whom you choose should be an individual’s right. Asking gays and lesbians to not marry whom they choose, to either marry someone they wouldn’t choose or not marry at all is a violation of an essential, individual liberty. The right of gay and lesbians individuals to marry whom they choose is an important right.

    Protecting the rights of individuals can be noble, as would be in the case of allowing gays to marry. It can also seem “dirty” by many standards, such as in the case of allowing people the choice to use their business to discriminate against people.

    However, it all works out in the wash. The checks and balance occurs not in governmental control but the free market.

    IF people like photographers discriminated against gays and lesbians they will lose not only the gay and lesbian business (thus hurting themselves) but also the business of people supporting gays and lesbians (thus hurting themselves).

    How is that not only fair but just?

    Unjust is forcing those people to accept your business grudgingly to win some point against bigots, only to discriminate against the good people who would have done it gladly and un-forced.

  20. Gregoire says

    I’d like to also recommend the other symposium articles in the first link. Really well written perspectives on the issue. I love the SCOTUS blog.

  21. Chitown Kev says

    I only skimmed through this and will read more in depth tomorrow but I have to say that between this (though Ali posts here on a regular basis) and things like the Sinclair Lewis post, this blog has a mix of bookwormy/smart stuff with pop culture and trash (most but not all of it related to LGBT issues) that I like very much.

  22. BobN says

    “Also, what if there were a sect of the Mormon church that wanted to retain the ban on black congregants that was lifted in 1978? And as part of this belief, not serve black people, not allow them on the premises of their churches, etc. etc.?”

    A church is perfectly within its rights to be racist.

  23. simon says

    University of St. Thomas?
    What kind of university is that?
    Sounds like the “Liberty University”.

  24. says

    I will disagree somewhat, with both you and Berg. First, Berg’s criticism is not actually related to marriage laws but to antidiscrimination laws. Stopping gay marriage rights will not resolve the issues he is concerned about. This is shown by the New Mexico case of the photographer, where there are no gay marriage laws existing. His beef is with another set of laws which remain whether or not marriage equality is obtained or not.

    I also disagree with you when you argue that rights are in conflict, I do not believe that individual rights ever conflict with one another. There is a harmony of rights which I argue is only disturbed by political manipulation of the situation. More importantly I consider it highly dangerous to “balance” conflicting rights. That is a raw excuse to arbitrary assaults on the rights of groups NOT in favor with the political powers that be, of the day. In the past that included the gay community. No politician should have the power to decide that some groups have rights that other groups don’t have, or that some people have rights that more important than other people’s rights. The very idea that someone must adjudicate “conflicting” rights and decide what the correct “balance” is between individual rights is one that invites authoritarianism in through the front door.

  25. Sargon Bighorn says

    Religious communities have NEVER EVER been forced to marry people they don’t like or agree with or what ever. This argument is only brought up when Gay Citizens want to marry.

  26. Artie Rimbaud says

    My guess about the current legal situation is that the services and benefit of clergymen and church property can be restricted to members of a particular religion, but that’s where religious exemption ends.

    So here is my question to anyone who is familiar with the legal details in the United States. At the present time, can wedding photographers, wedding planners, and convention hall owners discriminate to any extent based on religion, for example, by choosing to cater only to Christian couples? If not, then why is Professor Berg mentioning this?

  27. Artie Rimbaud says

    Since this seems to be Professor Berg’s main worry, I have to ask this. If wedding photographers, wedding planners and convention hall owners have always been subject to anti-discrimination and public-accommodations laws until now, why would that change? What court would take his complaint seriously?

  28. Ray says

    The issue of people and same sex marriage is not a new one, homosexuality has been practiced for thousands of years. As a follower of the Bible I understand that homosexuality is wrong not because I say so, but because the creator of man says it is wrong. I don’t hate homosexuals it is the act of homosexuality that I find offensive as does Jehovah the creator.
    The fact is simple, we all have free will and we can choose to believe or ignore our creator and his laws, but one thing is certain, we will have an accountability for our own actions. Rather like me choosing to ignore a law does not mean that i am free from guilt or for that matter the consequences.

  29. uffda says

    Ray@ Unfortunatey belief in the Bible as you state it means you have nothing of value to say to the people who frequent this website. Get lost or stay tuned to either a flood of insult or the silence of contempt.

  30. Robert in NYC says

    How wouldl Professor Berg address the issue of equal treatment for Gays discriminating against religous people in the delivery of goods and services? What if a gay business refused services to a known anti-gay religious person? It sounds frivolous, but once discrimination is allowed and extended to people with religious beliefs, then it opens a pandora’s box for others to discriminate based on their beliefs, religious or otherwise. What if a progressive,pro-gay religious straight person discriminated against a fundamentalist. Should that also be allowed using the same premise?

  31. James says

    Trying to extend this protection to people such a photographers, caterers, etc… is hogwash. They are a private business and if they choose not to participate then that is their personal choice. And really why would any gay couple want to hire someone that doesn’t support their marriage. Furthermore, I don’t see the need to exempt religious organizations because they are essentially a private organization and they can choose who is allowed to be married in their organization but if it makes those religious “people” happy then so be it.

  32. David Black-Downes says

    The big question is why anybody would want to hire any priest/minister, church, wedding planner, or florist that considered you to be an abomination? The bigots can hide in their hole for all I care.

    I would treat them the same way I treat any business that is blatantly homophobic. I do not give them my business. I even go so far as to not patronize businesses started or owned by homophobic assholes who may or may not be involved in day-to-day operations, but still receive the profits from said business. Examples: Carl’s Jr., Dominoes Pizza, Cracker Barrel, etc.

    They don’t like me, and I don’t like them. I will patronize businesses that don’t discriminate against me.

  33. Chadd says

    Personally, I don’t see a problem with people who own a business who don’t want my money because I am gay. It makes it easier for me to determine which business to support when I have a choice. I would rather a business turn me away because I am gay than inadvertently give my money to a business owner who would rather not have my business. I always try to support gay owned or friendly businesses and having bigoted owners announce that they are bigoted just makes my shopping decisions easier.

  34. BC says

    Not so sure about the Prop 8 analysis (point 3). Codifying religious exemptions by initiative sounds kind of impossible. Look how incredibly difficult it was to do in NY where compromises and frequent edits were possible. Imagine what it would be like if you just got one shot on a ballot?

    IF you think that marriage equality just shouldn’t have been done that way b/c of the all-or-nothing concerns or whatever, I think it IS rational to simply undo it through initiative and insist it be done properly through a legislative process. (In fact, I don’t think that b/c I think, as with abortion, there are sufficient religious exemptions built into the nature of the right).

  35. anon says

    This thread is too long to read all the comments. Issues of 4th vs 14th amendment generally are the most treacherous in the law. The courts offer little guidance in many cases. The CSC effectively made gay marriage equivalent to str8 marriage, thereby putting gay marriage into the same CA laws that govern str8 marriage, which did not have any religious exemptions. Prop 8 petitioners may have wished to amend CA marriage laws to carve out religious exceptions, but they did not. The 9th is reviewing Walker’s decision that there was no rational basis for Prop 8. If struck down CA law would revert back to the original CSC ruling (presumably).

    As a matter of pure policy instead of law, then the original argument (Berg) seems correct, but there is no evidence to support the view that Prop 8 supporters merely thought gay marriage was badly implemented.

    Restrictions placed on the 4th amendment by the Warren court in the 60’s were a remedy to overcome past discrimination. The 4th amendment still stands. SCOTUS has ruled that these remedies will expire unless there is another ruling within now about 20 years. Don’t confuse rulings with remedies.

  36. says


    Thanks for posting this. I thought Dr. Berg’s article was horrible. Here’s the note I sent to scotusblog. They asked for feedback related to “errors” and Dr. Berg published an article full of errors.


    The purpose of this note is to report errors in the subject blog post.

    1. The second paragraph obscures the constitutional question – can the government bar individuals from exercising their fundamental right to marry the person of their choice? Instead, Dr. Berg asks if the court will to “declare opposite-sex-only marriage unconstitutional”. A broad ruling against Prop 8 would prohibit the government from barring same-sex couples from marrying. Perhaps a better wording would have been “declare one-man-one-woman leglislation unconstitutional”.

    2. Marriage is a legal status. The second paragraph ends with “To say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the constitution.” If marriage is a legal status, there isn’t much wiggle room here. If the Court rules that same-sex couples have the right to marry, then that right is granted under the constitution.

    3. The discussion of anti-discrimination laws is a red herring. The recognition of committed same-sex relationships is a social phenomenon. The 2000 census reports that nationwide, approximately 1% of all households are headed by same-sex couples. If these couples are open about their relationship, they will come into conflict with photographers, caterers, clerks, restaurant owners, cement truck drivers, dog catchers, and *any* other person in *any* profession who believes that their relationship is immoral and that providing goods or services to them is a violation of religious conviction. The married legal status may broaden the scope of clashes, for example to include discount coupons for married couples, and as Dr. Berg argues, the marriage ceremony and celebration, but it doesn’t address the fact that anti-discrimination/religious liberty clashes are separate from married legal status/religious liberty clashes.

    Dr. Berg’s math is simply incorrect when he says “recognizing same-sex marriage without significant religious accommodations will multiply the conflicts, since some traditionalists have particular objections to marriages because of the term’s religious significance.” A couple will marry once in their lifetime. They will interact with people with religious convictions for the rest of their lives. The marriage ceremony is a life cycle event. It simply does not multiply the numerous potential conflicts ahead.

    4. The mention of tax exemptions is also a red herring. What does compliance with tax law have to do with exercise religious liberty?

    5. Dr. Berg finally identifies the topical question of the blog post, and that question isn’t marriage. It’s “the idea that opposition to homosexuality is so far beyond the pale that it deserves almost no accommodation.” Again, the legal question presented is “giving up their charitable activities or livelihoods.” It sounds like Dr. Berg is trying to carve out a special government stamp of approval for religious institutions that promote open opposition, if not hostility towards openly homosexual people. That’s a pretty difficult point to argue. It’s much easier to talk about same-sex marriage.

  37. just_a_guy says

    “[W]edding photographers, wedding planners and convention hall owners” have been the focus of the conversation here. But are adoption agencies the group that religious fundamentalists are really obsessed about the most?

    I mean, adoption agencies shouldn’t require a different analysis than “wedding photographers, wedding planners and convention hall owners”–but the Pope’s legions probably will probably try to claim there is one, huh?

  38. Rick says

    @daniel – A little off topic, but just to clarify – Mormons allowed black congregants throughout their history (Joseph Smith baptized some), they weren’t allowed to hold leadership positions until after 1978. And yes, only ‘good’ Mormons are allowed in the temple – that’s why the black sheep of my family couldn’t go in to see my brother married in the temple last month.

  39. Rick says

    Please look at this NPR story on the conflict between liberties and you will see who would want ‘bigots’ to photograph their wedding – overzealous and vindictive gay activists that don’t respect an indiviual’s religious rights.

    The fears of religious Americans on losing the struggle between gay and religious rights is very real and we cannot just pooh-pooh their concerns, any more than they should pooh-pooh ours. I think that it is correct to have religous exemptions explicitly stated in any gay rights legislation, because protecting their right to object is just as important as codifying our own.

  40. says

    Professor Berg says, “courts are incapable of creating balanced laws that reflect competing interests”–So that justifies continuing to deny one group of individuals equal rights and rewarding religious groups power over other citizens? It sounds like he’s trying to keep an unjust legal system that favors one group over another on the grounds that there is no Perfectly Balanced alternative. What trickery!
    Religions should be asked to change core values that oppress others. Religion is stagnant because people are under the delusion that all religion is divine and can’t be altered. They need to step back and realize oppression comes from humanity, freedom and equality are divine.

  41. Jerry6 says

    Come on People! How do religious faiths get people to go to Church and put money in the collection plate? Simple; As children, their parents take them to Church and teach them to pay up. But, Gay people who do not “Marry” an opposite sex person does not procreate children to be brainwashed with the Religion bit to put money in a collection plate.

    It is “Money” that is behind the religianists opposition to Gay Marriage, not “God”. How could “God” be against Gays? He made us; And everyone knows that “God” does not make mistakes.