Elizabeth Sepper (Washington University St. Louis) has posted to SSRN her working paper Doctoring Discrimination in the Same-Sex Marriage Debates, Indiana L.J. (forthcoming 2014). Here is the abstract:
As an increasing number of state legislatures legalize same-sex marriage, some religious believers refuse to serve same-sex married couples. In the academy, law and religion scholars frame these refusals as “conscientious objection” to the act of marriage. They propose “marriage conscience protection” that would allow public employees and private individuals or businesses to refuse to “facilitate” same-sex marriages. They rely on the theoretical premise that commercial actors’ objections to marriage are equivalent to doctors’ objections to controversial medical procedures. Their proposal is then modeled on medical conscience legislation, which allows doctors to refuse to perform abortions. Such legislation, they say, would dispel conflicts over same-sex marriage and lead to acceptance of gay couples’ relationships.
This Article argues that same-sex marriage objections lack the distinct and compelling features of conscientious objection recognized by law. It offers the first systemic critique of medicine as a construct for the same-sex marriage debates. It demonstrates that legislative protection of conscientious objection has been limited to life-and-death acts for which the objector has direct responsibility and further justified in medicine by ethical commitments particular to the profession – bases that are absent from the marriage context. By identifying the theoretical foundation of conscientious objection protections, this Article provides the groundwork for distinguishing between conscience claims that can be justified and those that cannot, in medicine and beyond.
This Article further contends that the experience of medical conscience legislation represents a cautionary tale, rather than the success story that marriage conscience proponents claim. Conscience protection in the medical model could actually increase conflict and entrench opposition. Ultimately, these critiques undermine the theoretical and practical foundations of “marriage conscience protection.” They suggest that antidiscrimination law, where we have traditionally balanced religion and equality, constitutes a more useful lens through which to view religious accommodation.
The full paper is available here.