Legal Commentary

Picking up on Bill A.'s recent post (here), I thought Prawfs readers might be interested in this piece, by Peter Steinfels, in the Times ("Same-Sex Marriage Laws Pose Protection Quandary"), and this post, by Andy Koppelman, at Balkinization ("Support Your Local Bigot").  Both items relate to the efforts of several law professors (including Michael Perry, Doug Laycock, and Andy -- here is their letter to New Hampshire's governor -- and Robin Wilson, Carl Esbeck, Tom Berg, and me -- here is our letter).

Andy's thoughts regarding the question, "what is bigotry, anyway, and why is it a bad thing?" are interesting:  "Bigotry is wrong for two reasons", he writes, "First, it harms the people who are its objects. Second, it is a moral failing on the part of the bigot. It is important to distinguish these."  In his view, the objection to religious-liberty exemptions to same-sex marriage laws cannot really be that they will harm gay people, "because they will only be invoked by a few people and won?t have much effect on gay people?s opportunities.  It is rather that we shouldn?t accommodate bigotry."  And, in his view, there is no need to "beat up on" "antigay bigots, even the morally reprehensible ones," if "they can be rendered harmless."

Like Andy, I do not believe that all of those who support (as I do) and who would invoke religious-liberty exemptions from SSM laws are "bigots."  (I suspect Andy would be generous in admitting people to his category of those "on that side of the political divide who . . . are honestly doing their best to pursue the right as it is given to them to see the right.")  I do believe, though, that anyone who would claim the label "liberal" should support at least some such exemptions -- not simply because it is not worth the candle to beat up on "harmless" bigots -- but because the refusal (and even, frankly, the reluctance) to concede that there are some contexts or spheres (e.g., the internal polity and practices of a religious community) into which liberal norms need not extend and upon which they should not be imposed is profoundly illiberal.