The Blossoming Union of Same-Sex Marriage and Religious Freedom

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9 Responses

  1. Marc says:

    Fantastic post. Quick question. As more states legalize gay marriage and more litigation involving the “Defense of Marriage Act” inevitably springs up, what do you think the odds are of the Act withstanding increased scrutiny on judicial review?

  2. Chip Lupu says:

    No quick answer to that good question. The section of federal DOMA that refuses federal recognition to same-sex marriages legal where contracted has always been constitutionally vulnerable. You are right that more states acting to legalize gay marriage will make it more so. Per usual, Anthony Kennedy is the one to watch on this one, and I predict that he would vote to invalidate this part of DOMA.

  3. Jerry lupu says:

    It is my understanding that a general provider of goods
    or services, without any religious affiliation, has the freedom to refuse transacting their goods and services to
    anyone without offering a reason. For example, I am under
    the impression that stores, restaurants, etc. are permitted
    to exercise such a freedom. Perhaps my basic premise is
    faulty. The example of the wedding photographer’s choice
    to refuse an assignment involving a gay marriage is what
    brouht this to mind.
    Thank you.

  4. Chip Lupu says:

    Your premise is faulty. Under federal law (1964 Civil Rights Act), restaurants and hotels may not refuse service based on race, color, or religion. Under the law of 20-plus states, though not all states, businesses engaged in for-profit provision of goods or services, open to the general public, are subject to similar restrictions, and the prohibited grounds of discrimination include sexual orientation as well as race, religion, gender, etc.. It was that sort of law (in New Mexico) of which the wedding photographer ran afoul.