Pa. gay marriage with an exemption
By Bruce Ledewitz
It is difficult to propose a religious exemption for gay-marriage legislation in Pennsylvania in the shadow of Arizona's proposed law, which seemed to allow businesses to refuse services to gay couples. Fortunately, Arizona Gov. Jan Brewer vetoed the bill, which was not limited to weddings and did not legalize gay marriage. It simply introduced in the market the potential for the kind of general discrimination against gay couples that the Catholic Church has consistently opposed. The law might even have allowed businesses to fire, or refuse to hire, gay employees - or, indeed, members of other faiths.
But I hope that the Arizona experience has not tainted the concept of a religious exemption in exchange for a gay-marriage bill. I propose that Pennsylvania practice mutual compassion and strive for common ground by including a broad religious exemption, including businesses, within a law legalizing gay marriage, while limiting the exemption to services at the wedding ceremony itself. This would be democratic horse-trading in the best tradition, in which both sides give up something in order to get something more important in return.
By this proposal, supporters of gay marriage would win. Right now, there is little support in the Pennsylvania General Assembly to legalize gay marriage. Nor is there any indication that the state courts will do so. People talk about the prospects for gay marriage at the U.S. Supreme Court, but I am confident that Justice Anthony Kennedy will not vote to strike down state gay-marriage bans, and there is no majority on the court to do that without him. On the other hand, a proposed broad religious exemption in a gay-marriage bill would radically change the politics of the issue in Pennsylvania.
Supporters of religious liberty would also win under this proposal. One day, gay marriage will be the law in Pennsylvania. A recent survey found 57 percent of Pennsylvanians already support gay marriage, while support among the young was overwhelming. And business interests will eventually insist on legalization as they lose employees to gay-marriage states like New York and New Jersey. If supporters of religious liberty wait until there is majority support for gay marriage in the legislature to press for a religious exemption, they will get little. The U.S. Supreme Court has already held that religious exemptions are not usually required by the Constitution.
If we act now by legalizing gay marriage with a strong religious exemption, Pennsylvania can play an important role in bringing our divided nation together. Yes, there will be the odd caterer who does not want to serve at a gay wedding. But this reluctance will fade over time. And, anyway, who wants a resistant service provider at a wedding?
And, yes, there will then be gay marriage. But opponents should recognize that this is a coming reality and make the best of it. We don't have to agree on everything in order to live together in mutual respect.
I worry that today's struggle over religious exemptions, whether in gay-marriage legislation or in the Affordable Care Act, will obscure the beneficial role that conscience has played in American history, both for religious believers and for nonbelievers. Conscientious objection to the Vietnam War protected not just believers, but also those unaffiliated with a religion. And I hope we can all agree that vegans in prisons should not be forced to eat meat, whatever their religion.
It would be a sad irony if the long-delayed acceptance of justice for gay couples were the occasion of an invasion of conscience for religious believers. It would be far better to recognize the legitimate needs of all. We can do this by legalizing gay marriage and legislating an exemption for religious conscience at the same time. But this opportunity will not last long. Pennsylvania's General Assembly must act now.
Bruce Ledewitz is a professor of law at Duquesne University School of Law. firstname.lastname@example.org