An amicus curiae brief co-authored by Professor Thomas Berg recently was filed in the U.S. Supreme Court case Obergfell v. Hodges, supporting the petitioners’ claim of a constitutional right to same-sex marriage while also arguing for protection of the religious liberty rights of objectors.
The brief argues that although "[s]erious issues of religious liberty will arise in the wake of same-sex marriage," "it is not appropriate to prohibit same-sex civil marriage to avoid having to address those issues," because "no one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own." Instead, the brief argues, the Court should protect both marriage equality and the rights of objecting religious organizations, in part because "sexual minorities and religious minorities make essentially parallel claims on the larger society." The brief argues that "[b]oth sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity": it is no answer to tell gays and lesbians to be celibate or keep their relationships private, and no answer to tell religious believers to follow their beliefs only in their church and not in their religious charitable organizations. Moreover, "[b]oth same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil." The brief concludes that "[t]he American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters" – religious nonprofits as well as churches – "must be permitted to refuse to recognize those marriages."
It was written with Professor Douglas Laycock of the University of Virginia Law School and is filed on behalf of Berg, Laycock, and several scholars of religious liberty and of marriage.
"We filed this brief because religious liberty should not be seen as, or used as, just a way of impeding same-sex marriage rights,” Berg said. “Supporting both rights is not only possible, it's actually the most consistent position. Although the two claims of liberty are opposed in many situations, if we could recognize the commonalities between them, then the sympathy for both sides might lead us to construct solutions that will appropriately balance the two rights."
The other signatories of the brief are David Blankenhorn, founder and president of the Institute for American Values; Professor Marie Failinger of Hamline University Law School; and Professor Edward Gaffney of Valparaiso University Law School.