Professor Johnson asks how religious belief and corporate law might be connected.  The intersection of faith and business is not one that we ordinarily stop to consider.  However, new laws recognizing same-sex marriage can put faith and business on a collision course, but it doesn’t have to be this way.

With the advent of same-sex marriage, a whole host of new questions for businesses arise: may a Catholic university that provides married student housing decline to offer housing to same-sex couples because doing so would violate its religious tenets?  May a therapy practice offering Christian marriage counseling serve only heterosexual married couples? What about a Christian bed and breakfast---can it open its doors only to heterosexual married couples or require same-sex couples to stay in separate rooms?  These collisions between same-sex marriage and religious liberty are far from speculative, as my new book illustrates.

Flash-points over same-sex marriage have occurred across the country and the world. For example, a Methodist-affiliated group in New Jersey, the Ocean Grove Camp Meeting Association, that refused to allow same-sex commitment ceremonies on its boardwalk pavilion lost its property tax exemption--resulting in a tab for $20,000 in back taxes. Elsewhere, New Mexico’s Human Rights Commission fined a small husband and wife photography shop more than $6,000 for refusing for religious reasons to photograph a same-sex commitment ceremony.

Some states now considering same-sex marriage laws, like New Hampshire, would provide religious exemptions only to the clergy. New Hampshire’s bill exempts “clergy . . . [from officiating] at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion”--unnecessary protection in light of the First Amendment. Neither religious individuals nor religious organizations receive protection under this bill.

Yet New Hampshire’s existing anti-discrimination statute prohibits sexual orientation discrimination in employment, housing, and public accommodations, exposing religious objectors to fines of up to a $50,000.

Who should worry about these fines? Any employer in New Hampshire who employs 6 persons or more.  Anyone who provides public accommodations.  Any owner of rental property intended for 3 or more families (except religious organizations that offer housing to other adherents for non-commercial purposes, unless membership in the religion is based on race).  This is potentially a whole lot of people.  Businesses and individuals who for reasons of faith prefer to step aside from same-sex marriage need explicit guidance about if and when they will be permitted to do so.

Robust religious liberty exemptions provide one way for religious objectors to live in peace and harmony with same-sex couples.  Such exemptions are routinely used in employment statutes and health care conscience clauses.

Exemptions need not impose hardships on same-sex couples seeking services.  In many states considering same-sex marriage, there are countless vendors of photography, catering, and other services that couples need.  In the rare instance that there is a single vendor in a particular geographic area, carefully tailored religious exemptions can address the possibility of hardship.  For a discussion of such exemptions, see the attached letters.

Letter by Professors Thomas Berg, Carl Esbeck, Robin Fretwell Wilson, Richard Garnett.

Letter by Douglas Laycock.

Thus robust religious liberty exemptions can guarantee both the rights of religious minorities and of same-sex couples.

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