Hans Bader: “A Conservative Case for Gay Marriage”

Legal analyst Hans Bader (Competitive Enterprise Institute) contributed this thoughtful essay to the Examiner, which works out in more detail than I have seen elsewhere why the “religious liberty” objection to same-sex marriage is typically misplaced. In brief, if religiously grounded institutions dealing with the general public such as universities and hospitals are afraid of having to treat gay couples the same as they treat married heterosexual couples, then (given current trends in anti-discrimination law) they are fighting a battle they are doomed to lose, because the clear trend is toward requiring them to treat couples equally even where there is no same-sex marriage. On the other hand, if they are afraid that the government will reach into questions of church governance and clergy selection or persecute them based on conservative doctrinal holdings, then they are fated to win the battle either way, because the Supreme Court has made quite clear (most recently in Hosanna-Tabor) that the Constitution prohibits such interference, and, again, prohibits it whether or not the law of any state recognizes same-sex marriage.

I developed a very similar theme last year in a Wall Street Journal piece, but Hans in this piece sets out a more nuanced analysis based on a fuller exposition of the case law. As he points out, while it is possible to identify occasional cases where gay marriage strengthens the case of discrimination plaintiffs, it is also possible to identify occasional cases in which legalized gay marriage could assist religiously based defendants — in cases, for example, in which courts currently require service providers to treat all unmarried cohabitants as equivalent to married couples but might recognize a distinction between married couples and cohabitants as rational were gays allowed to marry.

Meanwhile, as he points out, the failure to acknowledge gay marriage carries with it very real harms and “indiscriminate inequities” to gay couples, which are predominantly harms of state action (tax, inheritance, and so forth) as opposed to alterations of status vis-a-vis private persons and institutions. The article is here.

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