Search results for "religious freedom exemptions "same-sex marriage""

Amicus Brief in Religious Exemption Case

I thought I’d pass along two briefs that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. One, on behalf of the Becket Fund, is in Overall v. Ascension Health (E.D. Mich.). My students Nate Barrett, Garry Padrta, and Paulette Rodriguez-Lopez worked on the brief, and Daniel P. Dalton of Dalton & Tomich was kind enough to serve as local counsel (many thanks to him for that!). I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. (The other brief is quoted in this post.)

Please note that, in all Clinic cases, the students, local counsel, and I act as advocates for the client. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Summary of Argument

Out of respect for religious freedom, legislatures have long provided religious groups with exemptions from generally applicable laws. This tradition continues to this day, with a vast range of state and federal statutes providing various exemptions for religious institutions or religious believers.

Plaintiff’s Establishment Clause logic puts such exemptions in jeopardy unless they are made available to secular claimants

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Religious Liberty and SSM: A Response to Concerns in Illinois

The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres.  The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation.  (See, for example, a link to some of their letters here.)

There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty.  (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill.  That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.

That starts to change as of today in Illinois.  Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.”  The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me.  The letter was coordinated with the […]

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Bill Introduced by House Republicans Offers Broad Exemptions to Opponents of Same-Sex Marriage (and Non-Marital Sex)

Sixty members of the U.S. House of Representatives (58 Republicans and 2 Democrats) have introduced legislation, the “Marriage and Religious Freedom Act” (MARFA), that would prohibit any “adverse action” by the federal government against any “person” who acts on the basis of a religious belief opposing same-sex marriage or opposing sexual relations outside of opposite-sex marriages.  “Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status.  But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law.  And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes  nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.

MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples.  It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons).  After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage.  I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching.  Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another.  When I’ve had a chance to look at it more closely, I may offer more detailed thoughts.

I have a copy of the legislation and will post a link as an update when available.

UPDATE:  […]

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Religious liberty and SSM, continued:

This post continues a discussion I have been having with five law professors (Tom Berg, Carl Esbeck, Rick Garnett, Doug Laycock, and Robin Wilson) who have proposed that state legislation authorizing same-sex marriage should include a special, broad exemption for religious objectors. The proposal, my questions about it, and the professors’ responses can all be found at one link here. I’ll assume interested readers (all six of us!) are familiar with the draft proposal and with the exchange so far.

The six of us appear to agree that, as Robin Wilson put it in her measured op-ed in the LA Times on Sunday, “It’s possible to legalize gay marriage without infringing on religious liberty.” That separates us from the National Organization for Marriage and some others who warn of irreconcilable and intolerable conflicts between gay marriage and religious liberty. (I should add that I don’t know whether Berg, Esbeck, Garnett, and Wilson themselves oppose state recognition of gay marriage on other grounds. Laycock supports it.)

We do have some differences on the scope of the conflict and thus on the breadth of any needed accommodation. The bottom line is, I think there are genuine and substantial concerns about the reach of some state antidiscrimination laws. But I think the distinctive contribution of SSM to these conflicts has been small, is likely to remain small, and thus that the case for special religious exemptions in SSM bills is not very strong. While the substantive legal case is unproven, the political case is stronger. In that sense, I welcome this new focus in the SSM debate and I am grateful for the practical work being done by scholars like Berg et al. to alleviate the concerns of traditionalists while making space for the full protection of gay families.

I. SSM and […]

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Protecting religious liberty from gay marriage and protecting gay marriage from religious liberty:

In debates over same-sex marriage, much attention has recently been given to religious-liberty concerns. For example, the award-winning ad campaign to pass Prop 8 in California focused heavily on how SSM might erode the liberty of religious objectors.

For reasons I gave here almost a year ago, I’m not convinced that gay marriage adds much to the pre-existing confrontation between religious traditionalists and antidiscrimination laws protecting gays. That’s not to say that there aren’t legitimate religious-freedom concerns with antidiscrimination law. There are some egregious cases, especially in the context of providing personal and non-essential services (see, e.g., the already infamous New Mexico proceeding against a photograhper who refused to shoot a same-sex “commitment” ceremony). It’s only to say those concerns don’t arise from SSM. After five years in Massachusetts, a state with broad antidiscrimination laws, the evidence for religious repression attributable to SSM is scant.

The most that can be said uncontroversially is that formal state recognition of gay relationships will help increase acceptance of gays over time, which might indirectly influence the content and application of antidiscrimination law (more expansive laws, less generous exemptions).

On the other hand, the debate over same-sex marriage itself might help sensitize us to possible conflicts. When gay marriage is accomplished legislatively, at least, it’s more likely that the core interests of gay families and religious traditionalists will be represented and some accommodation can be found. There is evidence of that in the recent gay-marriage bill from Vermont, which included what even prominent opponents of gay marriage called substantive (but to them, insufficient) religious-liberty protection.

Likewise, the Connecticut legislature is considering a bill to bring the state’s marriage statute in line with the state supreme court’s decision last year in Kerrigan v. Comm’r of Pub. Health, which mandated that the state allow […]

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More on the Slippery Slope to Same-Sex Marriage:

(This post returns to some points I’d made earlier about the California, Massachusetts, and Vermont same-sex marriage/civil union decisions, and applies them to the Iowa case.)

Like some earlier decisions striking down opposite-sex-only-marriage rules, the Iowa Supreme Court decision helps illustrate what I call “legislative-judicial slippery slopes” — the tendency of some legislative decisions to affect future judicial decisions, even judicial decisions that cover territory considerably beyond the original statute.

Now this tendency is often pooh-poohed when the initial legislative decision takes place — and of course that makes sense, because the decision’s backers want to argue that the decision is quite narrow. Thus, for instance, consider:

  1. Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, arguing that the claim that a hate crime law “would lead to acceptance of gay marriages” was “arrant nonsense.”

  2. Editorial, A Gay-Protection Forum, Boston Globe, Oct. 15, 1989, at A30: “Nor does passage of the bill [that bans sexual orientation discrimination in various commercial transactions] put Massachusetts on a ‘slippery slope’ toward [same-sex marriage or domestic benefit] rights.”

  3. Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise (quoting Riverside Human Relations Commission member Kay Smith): “Those that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the ‘slippery slope’ [toward same-sex marriages] …. But, this legislation needs to be looked at on the face value of what it is, and it really does very little.”

Yet consider how the Iowa Supreme Court used the legislative enactment of these sorts of laws as part of its basis for deciding that the right to marry should be seen as encompassing same-sex marriage (some paragraph breaks added):

A second relevant consideration [in deciding whether discrimination based on a characteristic should be closely scrutinized by courts]
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Religious liberty and SSM:

As wedding bells begin ringing for gay couples and families in California, opponents of gay marriage are turning up the volume on a relatively new argument: that same-sex marriage is a threat to religious liberty. Just today we have seen two passionate salvos. Maggie Gallagher, writing at NRO, warns that gay marriage means “the official harassment and repression (by our own government) of traditional religious faiths.” Marc Stern, general counsel for the American Jewish Congress, writing in the L.A. Times, warns that “it is religious rights that are likely to be ‘obliterated’ by an emerging popular majority supporting same-sex relationships.”

There was nothing very surprising in either of these op-eds. Maggie began pressing the religious-liberty argument against gay marriage at least three years ago. Stern has a chapter on “Gay Marriage and the Churches” in a forthcoming book of essays by several authors entitled Same-Sex Marriage and Religious Liberty. The book is being sponsored by the Becket Fund for Religious Liberty, which officially takes no position on gay marriage, but regularly files amicus briefs in gay-marriage cases warning of “looming conflicts” with religious freedom.

More surprising was a report broadcast yesterday by National Public Radio, which pointed to “signs of a coming storm” in the “collision” of two legal principles: “equal treatment for same-sex couples” and “the freedom to exercise religious beliefs.” The radio version of the report offered two examples of this “collision” that have been widely circulated by gay-marriage opponents. A written addendum to the report offered several more. The most commonly cited examples, summarized below from the report, include:

*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.

*Housing: In

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R.I. Legislature Passes Civil Unions Bill

And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage.  Marriage Equality Rhode Island says it establishes “second-class citizenry.”  The National Organization for Marriage says it is “disappointing and dangerous.”  Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee (expected to sign the bill), who predicted this was the most they could do for at least a couple of years. 

The main issue for the major national gay-rights groups, expressed in a letter to the governor urging a veto, is the breadth of the religious-objector exemptions in the bill.  Every new state proposal to recognize same-sex relationships seems to raise the bar higher for these exemptions, and it appears the bar is now too high for these groups.  I haven’t seen the language yet so I won’t offer an opinion here on the weight of their concerns. […]

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New Mexico Trial Court Upholds Sanctions Based on Wedding Photographer’s Refusal to Photograph a Same-Sex Wedding Ceremony

The case is Elane Photography, LLC v. Willock, and I blogged about it here, when it was being considered by the New Mexico Human Rights Commission. The decision was handed down last Friday, but the opinion wasn’t distributed until yesterday. I hope to blog more about it today, but here’s my analysis from last year:

Elaine Huguenin co-owns Elane Photography with her husband. The bulk of Elane’s work is done by Elaine, though she subcontracts some of the work some of the time. Elane refused to photograph Vanessa Willock’s same-sex commitment ceremonies, and just today the New Mexico Human Rights Commission held that this violated state antidiscrimination law. Elane has been ordered to pay over $6600 in attorney’s fees and costs….

[The order rests] on two interpretations of state law: (1) This sort of photography company constitutes a “public accommodation,” defined by state law “any establishment that provides or offers its services, facilities, accommodations or goods to the public, but does not include a bona fide private club or other place or establishment that is by its nature and use distinctly private.” (2) A refusal to photograph a same-sex commitment ceremony constitutes sexual orientation discrimination, which New Mexico law forbids. These may or may not be sensible interpretations of the statutory text. But the result seems to me to likely violate the First Amendment (though there’s no precedent precisely on point).

[1. Compelled Speech.] Photography is an art, and Huguenin is an artist. It may not be high art, but it embodies a wide range of artistic choices (especially since she says she takes a “photojournalist” approach, rather than just doing normal staged photos). And though she sells the art to its subjects, that is of course part of a long and continuing tradition in the arts, including […]

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N.H. governor will sign SSM bill if . . .

it includes broader religious exemptions. The statement Gov. John Lynch just released is available on his website. It will infuriate SSM opponents and puzzle many supporters. Lynch initially said he opposed same-sex marriage and thought the state’s civil unions law passed two years ago was good enough for gay couples. Now he says he’ll sign the same-sex marriage bill recently passed if the state legislature adopts additional protections for religious objectors. Otherwise, he’ll veto it.

His proposal includes this key provision, borrowing partly from a religious-exemption proposal initially made a few weeks ago by several law professors and partly from language included in recently successful Maine and Vermont SSM laws:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization,

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A response from four more law professors

to my questions about their proposal to provide broad religious-liberty exemptions in state statutes that recognize same-sex marriages. (I posted a separate response from Doug Laycock yesterday.) The four authors of this reply, all experts on religious freedom, are Robin Wilson, Carl Esbeck, Rick Garnett, and Tom Berg. Here is their reply, which has also been posted at Mirror of Justice:

Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.

At the outset, just a few words about the necessity for religious-liberty protections. We agree with most of what Doug Laycock says on that score. The memo accompanying our proposal details the range of conflicts that have arisen or may arise. You’re right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection. Nevertheless we believe that same-sex marriage increases the risks to religious liberty. Some of the effects are direct. It’s partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners. Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct. See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS’s limits on holding leadership positions). Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination — or committing marital-status discrimination, if they act based on an objection to an individual’s having entering into a same-sex marriage.

In addition to the direct effects in the

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A compromise on federal civil unions?

From Sunday’s New York Times, a joint op-ed by David Blankenhorn and Jonathan Rauch advocating federal recognition of state-conferred same-sex marriages and civil unions, with an asterisk:

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill. . . .

Linking federal civil unions to guarantees of religious freedom seems a natural way to give the two sides something they would greatly value while heading off a long-term, take-no-prisoners conflict. That should appeal to cooler heads on both sides, and it also ought to appeal to President Obama, who opposes same-sex marriage but has endorsed federal civil unions. A successful template already exists: laws that protect religious conscience in matters pertaining to abortion. These statutes allow Catholic hospitals to refuse to provide abortions, for example. If religious exemptions can be made to work for as vexed a moral issue as abortion, same-sex marriage should be manageable, once reasonable people of good will put their heads together.

Rauch and Blankenhorn are among the ablest defenders of their respective positions, pro and con gay marriage, in the country. Both have written excellent books on the subject. What they say will be noticed by all sides, especially because they say it together. There will be strong objections on both sides: from SSM opponents who oppose recognition in principle […]

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Printer being forced to print gay marriage invitations

(apropos this post from several days ago):

1. The same Seattle ordinance, I realized, prohibits discrimination based on “political ideology,” defined as “any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group.” So the hypotheticals I gave in this paragraph

Whether or not we agree with her, I think we must acknowledge that [the coercion of the printer] is a significant loss of freedom for her — just as it would be a loss of freedom to force an ethical vegetarian building contractor to help build a meatpacking plant, to force a militant Democrat printer to print Republican flyers, or to force a pacifist mechanic to help repair tanks that are on their way to the battlefield.

could actually take place. A virulently anti-gay group could go to a gay, pro-gay-rights printer and demand that he print their flyers — and he’d have no right to refuse.

2. Several readers asked whether this might violate the printer’s First Amendment rights not to be compelled to speak. That turns out to be a tough question. Under the First Amendment, publishers generally can’t be required to include into their existing publications things that they don’t want to include; for instance, some recent attempts to force newspapers to run coverage of same-sex weddings alongside coverage of other weddings would almost certainly violate the First Amendment. But it’s not clear whether printers have a similar right not to be forced to print standalone materials, which won’t interfere with the printer’s other speech, and which probably won’t be associated by readers with the printer.

The strongest argument on the printer’s behalf, I think, would be based on the […]

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