Skip to main content
Article
Free Exercise for Whom? -- Could the Religious Liberty Principle that Catholics Established in Perez v. Sharp Also Protect Same-Sex Couples' Right To Marry?
University of Detroit Mercy Law Review (2015)
  • Eric Alan Isaacson
Abstract
Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular civil right, it also implicates free-exercise concerns. The article reviews the role that Catholics played in the California Supreme Court’s 1948 decision in Perez v. Sharp, 32 Cal. 2d 711, 198 P.2d 17 (1948), which struck down laws barring mixed-race marriages as a violation of their religious liberty to marry as Catholics. The article also reviews the arguments advanced by Catholic bishops as amici curiae in Loving v. Virginia, 388 U.S. 1 (1967), who contended that the free-exercise principle of Perez protects the religious liberty not just of Catholics, but of also of non-Catholics to marry according to their own religious traditions. The article argues that the free-exercise principle that Catholics established in Perez properly applies to protect same-sex couples who wish to marry in faith communities that honor their same-sex unions. Finally, the article answers objections that recognizing a free-exercise interest in the right to marry conflicts with the Supreme Court’s nineteenth-century Mormon polygamy decisions, or with Employment Division v. Smith, 494 U.S. 872 (1990).
Keywords
  • same-sex marriage,
  • gay marriage,
  • free exercise,
  • religious liberty,
  • freedom of religion,
  • religion and law,
  • civil marriage,
  • civil rights,
  • Catholic Church
Publication Date
Winter May, 2015
Publisher Statement
Published in the University of Detroit Mercy Law Review, Volume 92 (Winter 2015). Any republication must identify Eric Alan Isaacson as the article's author, and the University of Detroit Mercy Law Review as the original venue of publication.
Citation Information
Eric Alan Isaacson. "Free Exercise for Whom? -- Could the Religious Liberty Principle that Catholics Established in Perez v. Sharp Also Protect Same-Sex Couples' Right To Marry?" University of Detroit Mercy Law Review Vol. 92 Iss. One (2015)
Available at: http://works.bepress.com/eric_isaacson/1/