Friday, 1 March 2013

AJC Brief Urges Supreme Court to Protect Same-Sex Marriage, Religious Liberty

American Jewish Committee

The Supreme Court must protect the right of same-sex couples to marry, AJC argued in an amicus brief in two cases regarding religious institution opposition to such unions. The cases are Hollingsworth v. Perry and USA v. Windsor.

The "reasons proffered for refusing civil marriage do not come close to justifying denial of a fundamental right," the AJC brief, filed today, stated.

Recognizing that there will be serious clashes between official recognition of same-sex marriage and the rights of those who object on religious grounds to such marriages, AJC told the Court that "no one can have a right to deprive others of their important liberty as a prophylactic means of protecting their own." The brief urged the Court to protect religious liberty rights as well.

The brief emphasized that it would be improper to allow a right to same-sex marriage to categorically trump the rights of religious institutions to refuse to recognize those marriages. The brief cataloged a long list of such conflicts, including a possible loss of tax exemption.

Contrary to what some advocates of same-sex marriage argue, the right to dissent from recognition of same-sex marriage should extend beyond the right of a house of worship not to perform or host a same-sex marriage ceremony. If that were not the case "the net effect for human liberty will be no better than a wash if same-sex couples now oppress religious dissenters in the same way that those dissenters, when they had the power to do so, used to oppress same-sex couples," the AJC brief stated.

These cases, the AJC argued, require the Court to signal that its recognition of same-sex marriage does not, of its own force, require a wholesale denial of religious liberty claims. Such claims will need to be examined individually, in light of particular facts and costs. AJC took no position on how specific conflicts should be resolved, but it did point to certain legal principles that should be applied to do so.

Further, when the Court does consider a clash between the religious liberty of religious institutions objecting to same-sex marriage and laws appearing to compel such recognition, AJC urged the Court to use the opportunity to enhance protection for religious liberty generally, resolving ambiguities in the current standard in favor of religious liberty and ultimately, replacing the current standard.

The brief was prepared by Professor Douglas Laycock of the University of Virginia Law School, one of the nation's foremost authorities on religious liberty. He was assisted by Professor Thomas C. Berg , another well-known academic expert on religious liberty, and AJC General Counsel Marc D. Stern .

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