The Cheshire Cat: Same-Sex Marriage, Religion, and Coercion by Exclusion

Abstract

The paradigm case of state coercion is a criminal sanction: the threat of loss of life, liberty, or property for disobedience to the state's commands. A prudent person will consider forgoing the pleasure of his favorite drag out of fear of punishment, even if he believes the prohibition unjust. But, as H.L.A. Hart emphasized, much law consists not of such primary, conduct-controlling rules, but rather of secondary, power-conferring rules that establish structures of interaction. Private power-conferring rules include those governing contracts, covenants, conveyances, wills, trusts, and marriage. Since Lawrence v. Texas, homosexuals in the United States no longer suffer the coercion of the criminal law for adult, consensual, private sexual conduct. And homosexuals, of course, have always had the legal power to make contracts and wills, to convey real property, and create trusts. Marriage is the last bastion of discrimination through exclusion. But is such exclusion an exercise of state coercion, and, if so, is it illegitimate, or (in the alterative) unjust? I will argue that the exclusion of same-sex couples from exercising the power-conferring rules of marriage now constitutes state coercion in the sphere of conscience and religious belief, for only religious barriers continue to make sense. There is both an establishment of religion issue and a free exercise issue. As Emily Gill argues, the liberal polity should maximize free exercise by minimizing establishment. Because of changes in society, family law, and criminal law, this coercive exclusion from civil marriage totally fails to accomplish its secular goal. Once secular purposes are no longer served, the exclusion also, in addition to invading religious liberty, fails to respect the principle of equality of all persons before the law. Although I refer to U.S. Constitutional cases in passing, my argument should have purchase in any polity recognizing religious liberty and equality of persons. (PsycINFO Database Record (c) 2012 APA, all rights reserved). (chapter)