In the “No Compromise” thread on Family Scholars Blog, David writes:
One conclusion I draw from this thread is that it would be a good idea for someone (presumably someone opposed to ssm) to state with some specificity the actual content of desirable and permissable protections of religious liberty and the rights of conscience with respect to laws permitting same-sex marriage.
But in the essay David links to, Robert George says what he thinks the content of those laws should be.
“We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type. Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them.”
If Professor George is serious about this language — and there’s no reason to think he was joking — then what he wants is for no one, in any circumstance, ever, to be pressured in any way whatsoever to recognize a same-sex marriage.
So, for example, if Chick-Fil-A wants to provide health insurance coverage for the legal spouses of heterosexual workers, but not the legal spouses of similarly situated homosexual workers, Chick-Fil-A should have that right.
If a city clerk working in a small, one-clerk town wants to refuse to issue a marriage license to a same-sex couple, she should have that right. Let them drive to the next town over and try their luck there. Firing her because she’s effectively refusing to perform her job duties would surely be an example of a “penalty” and thus is not allowed.
If a bank clerk wants to refuse to accept a mortgage application from the same-sex couple, because they checked off the “married” box on their form, that should be acceptable behavior, according to Mr. George’s standards, and for the bank manager to discipline or fire that employee should presumably be illegal.
If a hospital or doctor decides not to recognize a same-sex marriage, and therefore refuses to accept a sick or injured person’s insurance from their same-sex spouse’s employment, they should face no penalty, according to George. They cannot be “forced to recognize those marriages,” after all.
Professor George is quite right to say that the “grand bargain,” as he describes it, would not be acceptable to many SSM advocates all. What George calls for is nothing less than permanent second-class status for all same-sex couples.
A different sort of “grand bargain” is certainly possible, however. I don’t know a single SSM who wants to see unwilling ministers forced to officiate at same-sex ceremonies, for example, or unwilling Churches forced to host same-sex ceremonies in their chapels. There are gray areas to be hashed out, but there is in fact quite a lot of agreement, from both SSM opponents and SSM advocates, of what such a “grand bargain” would look like.
There may be a few extremists on the pro-SSM side who oppose any religious exemptions at all – although if they exist, they are not prominent leaders of the movement. On the anti-SSM side, there are a few extremists, Professor George included, whose views would effectively condemn married same-sex couples to permanent second-class citizenship. Fortunately, I think most people’s views are actually in the middle, and in the next decade or two we will see a reasonable grand bargain, effectively (if imperfectly) protecting both gay rights and religious liberty, emerge in most states.