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Marriage redefinition in a state results in a long list of negative consequences for individual and institutional religious freedom. They cannot all be eliminated but many can be mitigated.
What religious-freedom protections should a state adopt? Here's the
template developed by constitutional-law scholars Douglas Laycock, Carl Esbeck, Richard Garnett, Robin Fretwell Wilson, Thomas Berg, Marc Stern, and others. The following is slightly corrected and updated from the version published in the May 15th issue of the
eNews (where a "no" was missing from (b)(2)(B)):
(a) Religious organizations protected.No religious or denominational organization, no organization operated for charitable or educational purposes which is supervised or controlled by or in connection with a religious organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to
(1) provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or
(2) solemnize any marriage; or
(3) treat as valid any marriage
if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs.
(b) Individuals and small businesses protected.(1) Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required to
(A) provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or
(B) provide benefits to any spouse of an employee; or
(C) provide housing to any married couple
if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs.
(2) Paragraph (b)(1) shall not apply if
(A) a party to the marriage is unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship; or
(B) in the case of an individual who is a government employee or official, if another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay; provided that no judicial officer authorized to solemnize marriages shall be required to solemnize any marriage if to do so would violate the judicial officer's sincerely held religious beliefs.
(3) A "small business" within the meaning of paragraph (b)(1) is a legal entity other than a natural person
(A) that provides services which are primarily performed by an owner of the business; or
(B) that has five or fewer employees; or
(C) in the case of a legal entity that offers housing for rent, that owns five or fewer units of housing.
(c) No civil cause of action or other penalties.No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall
(1) result in a civil claim or cause of action challenging such refusal; or
(2) result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.
Note: The best--and very sobering--analysis of religious-freedom/same-sex marriage conflicts remains
Same-Sex Marriage and Religious Liberty:
Emerging Conflicts (2008), edited by Douglas Laycock, Anthony Picarello, and Robin Fretwell Wilson.