Why America's long history of protecting religion is at the center of gay marriage debate
"It’s not about marriage," Wolfson said. "It’s about trying to change general principles of nondiscrimination that have been working fine for decades. They are just trying to change the subject and come up with something else."
While Wilson agrees the debate has turned ugly and judgmental, she contends that marriage's historical link to religion introduces a new dynamic into the equal rights equation that warrants new exemptions to help everyone ease into change.
"We need to find ways for religious people who are already out in the marketplace and started businesses long before same-sex marriage started anywhere in the world," she said. "They can't suddenly retrofit because something came along that they are deeply opposed to for religious reasons."
It remains an open question as to whether legislatures or courts are the best place to create those exemptions.
Wilson favors the political environment, where multiple interests can be heard and balanced "in a way that hopefully maximizes the good of the entire group."
But those political compromises, often hammered out behind closed doors by a few people, don't usually produce the best results, said Laycock, who favors the courtroom as the best place to work out tough questions of equal rights.
He acknowledges courts aren't immune to partisan politics, but said "at least there is a chance of getting principled consideration of how much harm or cost a religious exemption would actually impose."
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