Religious Liberty After Obergefell

Writing for the Hoover Institution’s Defining Ideas, Richard Epstein examines the state of religious liberty protections after the Obergefell v. Hodges Supreme Court decision. He focuses on a recent house bill in Mississippi, stalled by a judicial injunction, which would have attempted to legally refute “the notion that people who are opposed to same-sex marriages had to participate in their validation.”

Epstein maintains that while the Obergefell decision rightly gave same-sex couples the ability to enter marriage on a basis equal with that of heterosexual couples, its purpose “is fully accomplished without conscripting other individuals to participate in these relationships, or indeed any other arrangements.”

The argument Epstein makes, that everyone ought to be free to exercise their conscience as they see fit so long as doing so does not cause significant “actionable dislocations” to another person’s rights, is one of the foundational arguments in favor of religious freedom.

Furthermore, it is not the state’s duty to make private organizations “face the choice of having to go out of business to protect their religious or moral conscience.” According to Epstein, this is “no better than the choice between your money and your life.”

Finally, as long as there are many businesses willing to provide services to same-sex couples, Epstein argues, the state should not use its power to force those who are uncomfortable doing so to act against their conscience.

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