University Law Prof. Douglas Laycock publicly critiqued a new Hawaiian law legalizing same-sex marriage, claiming the legislation lacks sufficient exemptions for religious institutions. He argues their religious beliefs prevent them from participating in same-sex marriage ceremonies and services, and thus the law is unconstitutional.
The law passed Nov. 13 and will go into effect Dec. 2, making Hawaii the 15th state to legalize same-sex marriage.
“Adequate religious exemptions should protect the right of religious institutions not to participate in the wedding or reception and the right not to recognize or facilitate the marriage thereafter, such as by providing marriage counseling or married student housing,” Laycock said in an email. “It is [more] consistent with American values to protect equality and liberty for same-sex couples and to also protect religious liberty for those who conscientiously object to … such marriages.”
Laycock’s stance is consistent with his previous opposition to similar legislation.
Although Laycock said the Constitution protects any religious institution from being forced to perform a same-sex marriage, codifying these exemptions is important to avoid a protracted legal battle.
Only the state legislature in Connecticut has interceded to protect religious institutions after its State Supreme Court legalized gay marriage, Laycock said.
“As momentum has built for marriage equality, supporters have been less willing to protect religious liberty,” he said. “The gay-rights side does not want religious exemptions. The fundamental political problem here is that neither side in this debate respects the liberty of the other.”
Laycock recently served as counsel in a Supreme Court case on Nov. 6 concerning the use of mandatory prayer in town council meetings.
“Religious faith and sexual orientation are both fundamental to human identity,” Laycock stated. “The state should not interfere with either except as absolutely necessary.”
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