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Indiana Law Journal

Document Type

Article

Publication Date

Spring 2014

Publication Citation

89 Indiana Law Journal 703 (2014)

Abstract

As the legalization of same-sex marriage spreads across the states, some religious believers refuse to serve same-sex married couples. In the academy, a group of law and religion scholars frames 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. They model their proposal 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 traditionally 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.

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