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 same-sex couples to marry. Five respected academics, in two separate letters (here and here), are urging the legislature to include a provision broadly protecting religious traditionalists against potential discrimination claims by married gay couples and possible denial of various benefits by the state. (HT: Mirror of Justice, a Catholic legal blog.) Here is the text of their proposed "marriage conscience protection":
No individual and no religious corporation, entity, association, educational
institution, or society shall be penalized or denied benefits under
the laws of this state or any subdivision of this state, including but not
limited to laws regarding employment discrimination, housing, public
accommodations, licensing, government grants or contracts, or tax-exempt
status, for refusing to provide services, accommodations, advantages,
facilities, goods, or privileges related to the solemnization of any
marriage, for refusing to solemnize any marriage, or for refusing to treat
as valid any marriage, where such providing, solemnizing, or treating as
valid would cause that individual or religious corporation, entity association,
educational institution, or society to violate their sincerely held religious
This is a sentence only a lawyer could love.
The proposal is important, both because it comes from acknowledged experts in the field of religious liberty and because it is likely to be endorsed in some version by even more academics and other advocates. My guess is that something like it will be introduced every time a same-sex marriage bill is considered. And even though I don't agree with the authors on the extent or seriousness of the underlying problem ("widespread and devastating effects" on religious liberty), or their proposal in all its applications, it stimulates exactly the kind of concrete discussion we should be having.
If addressing religious-liberty concerns facilitates and hastens the passage of SSM laws without sacrificing any substantial rights of gay families, that's a plus for SSM advocates. But first I'd want to hear from experts in antidiscrimination law about the possible effects. I'd also have lots of questions about the proposal. The four that occur to me right away are these:
(1) Would its application to "any individual" include government employees acting in their capacity as government employees and providing benefits and services to married same-sex couples? If so, I assume this would mean that a state employee could refuse to issue a marriage license to a same-sex couple, refuse to participate in any way in giving benefits under state law available to married same-sex couples, refuse to serve as a judge in a divorce, tort, or any other proceeding implicating their marital status, and so on. Is that right?
(2) Could "an individual" who continually harrasses or discriminates against a co-worker or subordinate on religious grounds be disciplined (reassigned, fired, demoted) by his employer attempting to comply with the state's employment antidiscrimination law? Or would that be a "penalty" imposed "under the laws" of the state?
(3) Would the exemption affect any claim of sexual-orientation discrimination under state law that a person would have had independent of the recognition of the person's same-sex marriage? For example, would it allow a religious employer or landlord otherwise covered by a law forbidding sexual orientation discrimination to discriminate against a gay person (by excluding the person from a job or an apartment) once that person marries a same-sex partner? I assume the intent is to allow religious objectors to discriminate solely on the grounds of the marital status of a person in a same-sex marriage but not on the grounds of the person's sexual orientation. Connecticut already has religious exemptions in its sexual-orientation non-discrimination laws, and the authors say this proposal is "modeled" on such exemptions. But as I think they'd acknowledge, it is broader than Connecticut's exemptions in several ways.
(4) Would the exemption protect those who objected on religious grounds to other marriages, e.g., interracial marriages, interreligious marriages, and second marriages following divorce? The text is broad enough to encompass any sincere religious objection to any marriage, but its adoption and placement in a bill meant to authorize same-sex marriages might lead to a narrower construction.
These questions are addressed initially to the authors, but not exclusively to them. Their understanding won't control the interpretation of the statute they draft.
One can imagine many more questions about the proposal. How do we know when a belief is "religious" rather than a deeply help moral or philosophical one? How do we know when a religious belief is "sincere" as a opposed to pretextual? (In this regard, it's easier to imagine an individual crafting his supposed religious beliefs to fit the exemption in response to a lawsuit than it would be to imagine a religious business or association credibly doing so.) Do we want courts deciding when a person's religious beliefs have been "violated" rather than been made less comfortable? But while these are good questions, for the most part they do not seem particular to this proposal. They're endemic in religious liberty law and protection.
Finally, I'd be interested in the reaction to this proposal from readers, both supporters and opponents of SSM.
If a you're a supporter of SSM, could you live with this proposal, especially if it made the passage of SSM bills more likely and more likely to be soon? Would you support any special religious-liberty protection in the context of an SSM bill?
If you're an opponent of SSM, and although you may continue to oppose SSM on other grounds, would it at least satisfy any religious-liberty concerns you might have? If not, would any proposal be sufficient to satisfy your religious-liberty concerns?
UPDATE: It appears the Connecticut legislature has passed its marriage bill, with significant protection for religious liberty included. An anti-SSM activist in Connecticut calls the provision "a significant improvement" of "a bad bill" because it lets groups like the Knights of Columbus refuse to rent halls for gay weddings. I'm waiting to get the exact text.
Professor Laycock responds
to my questions about the meaning and potential applications of the proposal that he and four other academics have advanced for reconciling religious-liberty concerns and same-sex marriage. Here is his response:
I wrote one of the two letters that Dale Carpenter references in his post on the same-sex marriage legislation in Connecticut. Let me say a few things by way of background, and then respond to his four specific questions.
I wrote separately from the others, and I speak only for myself here. I wrote separately because I support gay rights and same-sex marriage and I also support religious exemptions; in my view, these are parallel protections for quite similar claims to individual liberty in matters essential to personal identity.
We may also have a different sense of the magnitude of the problem. Compelling a person or religious organization to do things in violation of conscience can be devastating to the individuals affected. There are several high profile cases around the country, but the total number of such cases that have come to public attention is not large, and the lack of a marriage case per se in five years in Massachusetts is encouraging. Of course, Massachusetts is also notorious for forcing Catholic Charities to entirely withdraw from adoption services because of its conscientious objection to placing children with same-sex couples..
The number of people who think same-sex marriage is morally or religiously wrong is large. But the percentage of those people who feel sufficient personal responsibility to assert a conscientious objection claim rather than facilitate what they perceive to be the immoral acts of others is considerably smaller. The percentage of those who are in an occupation where the issue arises for them is much smaller still. The percentage of those who will turn away business in the name of conscience is somewhat smaller still. And as same-sex marriages becomes more familiar and accepted, each of these percentages should fall. On the other side, that portion of the gay and lesbian community that is more interested in making examples or provoking legal confrontations than in living their own lives may also be rather small. For all these reasons, I don't find it surprising that there are a relatively small number of cases in which conscientious objection to facilitating same-sex marriage is actually asserted. Of course that means that the cost of granting exemptions is also small, while the benefit to the individuals who need the exemption remains great.
I have addressed the implementation of exemptions as some length in the Afterword to Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony M. Picarello, and Robin Fretwell Wilson, eds.) (Rowman & Littlefield 2008). As that publication makes clear, I think that any right to exemption cannot be absolute. An individual who occupies a blocking position -- who is the only person reasonably available to provide a needed service -- is not in my view entitled to an exemption. Similar issues might arise in a community in which many service providers are conscientious objectors, or a needed service is in shortage. In my view, this proposed exception to the exemption language is a specific application of the compelling interest test.
The statutory language that the other letter proposed and that I endorsed did not include this exception to the exemptions. That is because we were contacted very late in the legislative process; the letters and the proposed amendment were drafted in hurry, and may well need some tweaking. I endorsed the proposed language because in a legislative debate, it is essential to rally around a single proposal; negotiation and amendments could come later if we got anyone's attention. And I think the exception to the exemptions are unlikely to arise very often in a state like Connecticut, which is compact, urbanized, and politically liberal.
With that background, let me turn to Dale's specific questions:
1. The state's interest in insisting on equal service for all is at its maximum in state offices, and the individual's claim to private conscience is considerably weakened when he is acting in an official capacity. And the state is a monopolist for things like licenses. So state officials will often be in a blocking position, and in the context of governmental services, even a minimal blockage is a serious problem. So I think a clerk who does not want to issue a marriage license must have a co-worker immediately available to issue that license at the same window at the same time, without requiring the couple to stand in a new line.
On the other hand, a judge who performs an occasional wedding, usually for a friend or acquaintance, is acting much more personally. She is empowered by her office to perform weddings, but she is not obligated by her office to perform weddings; she is not remotely in position to block anyone from getting married, or even to cause inconvenience, because the request to perform the wedding typically comes well in advance of the date. The reality is that a judge has broad discretion to perform a marriage or not, and I would not allow a claim of discrimination against same-sex marriages to interfere with that discretion.
2. It was certainly not my intention to protect harassment. What counts as harassment must be defined in light of free speech and free exercise; not every expression of disapproval can be defined as harassment. But the targets of such disapproval have the right to stop the conversation and insist that it not be renewed. The purpose of exemptions is to protect people who conscientiously object to personally facilitating a same-sex marriage; these people just need to be left alone. Those who want to affirmatively interfere or harass present a very different and less defensible claim.
3. In my view, the right to exemption for conscience should be quite general, subject to the compelling interest test as developed and applied in particular factual contexts. So there should not be much difference between the right to exemption from same-sex marriage laws and the right to exemption from gay rights laws more generally, and issues of coordinating the two exemptions should rarely arise. In the real world, I would interpret each set of exemptions to protect as broad a set of conscience claims as the statutory text permits, subject to the constraint that the conscientious objector cannot inflict significant harms on others.
4. Again, I think the right to conscientious objection should be general, and so of course it should include similar objections to other controversial marriages, although these claims are likely to be even scarcer than claims of conscientious objection to facilitating same-sex marriages.
I am committed to a book project this summer and may not reply to all follow up questions. But as I mentioned, my answers to implementation questions are largely set out in the book.
I'm grateful for this characteristically reasonable and thoughtful response. It leaves some issues of interpretation and application on the table, but helps clarify what many of those issues might be. We disagree in particular on the significance of the Massachusetts Catholic Charities case, which I believe is not attributable to SSM, but to a 1989 antidiscrimination law that does not turn on the existence of a marriage. We appear to disagree on whether a state employee, in her capacity as an employee, should ever be able to get a religious-liberty exemption from performing what are otherwise her duties to the public.
But we agree on the general principal, I think, that for private parties (including individuals, like wedding photographers, and groups, like the Knights of Columbus) fairly broad exemptions should be available to protect religious scruples when the exemptions won't impose any substantive (as opposed to symbolic) hardship on married gay couples and families. How you draft an exemption to implement that general principle -- no more, no less -- is the hard part.
"Religious conscience" protections in Connecticut:
The Connecticut same-sex marriage bill passed overwhelmingly by the state legislature last night includes several provisions addressing concerns of religious-liberty advocates. Among them are these:
Sec. 501. (NEW) (Effective from passage) Notwithstanding any other provision of law, 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 the request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration 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 nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.
Sec. 502. (NEW) (Effective from passage) The marriage laws of this state shall not be construed to affect the ability of a fraternal benefit society to determine the admission of members as provided in section 38a-598 of the general statutes or to determine the scope of beneficiaries in accordance with section 38a-636 of the general statutes, and shall not require a fraternal benefit society that has been established and is operating for charitable and educational purposes and which is operated, supervised or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state.
Sec. 503. (NEW) (Effective from passage) Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.
(HT: Robin Wilson.)
It looks like the bill will also reaffirm the principle, which has never been contested, that no religious official will be required to officiate at or solemnize a same-sex marriage. And, as in similar laws around the country, it looks like the bill will allow parents to opt out of any marriage instruction for their children in the public schools.
The bill obviously draws on the proposal made by the five academics whose ideas I discussed earlier today. It does omit some of the more problematic aspects of the proposal, such as providing an exemption to "any individual" and its specific reference to the "sincerity" of religious belief.
Lots of practical questions remain about proposals like this, but if enacting a same-sex marriage law comes down to a negotiation over how broadly to draft a religious-liberty exemption then the problem becomes soluble — not much different from any legislative matter. Over the past decade, the political fulcrum has shifted from no recognition (pre-2000) to civil unions (2000-09) to same-sex marriage with protection for religious dissenters (2009- ). That's a healthy shift, and should help address the kinds of concerns that sank gay marriage in California.
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 marriage-related contexts, there are spillover effects in other contexts such as employment or adoption. SSM with weak religious-liberty exemptions increases traditionalists' exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts. This is in part because it might (as you suggest) weaken the public regard in general for religious liberty. But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state "RFRAs"), that require a compelling interest to override religious freedom. Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions. This was precisely the Supreme Court's logic in the Bob Jones University case: the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status. Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities' argument — a meritorious argument, as you've said — that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.
Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state's policy in general is to value religious liberty as well as nondiscrimination norms. It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere. And it's in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.
On your questions about interpretation of our proposal:
1. Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven't protected them). We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose "substantive (as opposed to symbolic) hardship on married gay couples and families." But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption. If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that's not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more.
We also think that a hardship exception to a religious exemption should mean real "hardship" as opposed to mere inconvenience. To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side. So we agree with you that the devil is in the textual details here, and we'd be interested in hearing your proposed standard.
2. We agree that a religious exemption should not protect harassment, provided that the definition of "harassment" is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches. We don't think the language "refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid" can plausibly be read to protect active harassment as opposed to, in Doug's words, the right to be left alone.
3. We wouldn't expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them. Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.
4. Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs. Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent. For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled. We think that conflicts of this sort are no more likely today.
I appreciate the great thought, care, and time that went into this reply. Along with Professor Laycock's response, it has been very helpful in clarifying my own thinking about this. It deserves a more thorough and considered reply than I can give it right now, but I do hope to address in a few days both the underlying religious-liberty concerns and some of the potential ways to address those concerns. In the meantime, however, I wanted to share this response with readers and get their reactions.
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 religious liberty: the experience so far
Like much of the rest of the debate over the effects of gay marriage, the question whether SSM threatens religious liberty -- either by itself or in combination with various state antidiscrimination laws -- is no longer a wholly theoretical one. We have now had full gay marriage in Massachusetts for five years. We have had gay marriage or the legal equivalent of it in Vermont since 2000, in California since 2005, in Connecticut since 2005, in New Jersey since 2006, in New Hampshire since early 2008, and in Oregon since early 2008. (Other states have formally recognized same-sex relationships, while granting a much more limited set of rights: Washington (2007), Maine (2004), Hawaii (1997), Maryland (2008), and D.C. (1992).) I leave out Iowa (2009) and Colorado (2009), where recognition is still fresh.
Just counting the pre-2009 SSM and civil-union states, covering about one-fifth of the U.S. population, that's a combined 27 years' worth of experience fully recognizing gay relationships. Each of those seven states also has broad laws forbidding discrimination on the basis of sexual orientation in areas like employment, education, housing, public accommodations, and so forth. Each of those states also prohibits discrimination on the basis of "marital status" in housing and/or employment.
In these seven states, tens of thousands of gay couples have been married, civilly unionized, or domestically partnered over the past decade. They have had ceremonies, selected caterers, rented halls, ordered flowers and invitations, been fitted for dresses and tuxes, chosen professional photographers, hired clergy and non-clergy alike to officiate, gotten licenses from state bureaus, rented apartments together, adopted children, enrolled their kids in public and private schools, claimed health benefits for their spouses, sought employment to support their families, trudged through relationship counseling, and done every other ridiculously expensive and anxiety-laden thing married people do.
The opportunity has certainly been there for massive legal conflict. Yet the legal conflicts between gay couples and religious objectors -- all under pre-existing anti-discrimination laws -- have been very few. I can find no reported decisions, for example, where a small landlord refused to rent to an unmarried gay couple, much less a married one.
And the number of these conflicts in which the state's formal legal recognition of the gay couple determined the outcome is . . . zero. The number of cases in which the existence of a gay marriage or civil union defeated an otherwise meritorious religious-freedom claim is . . . zero. The number of cases in which the absence of a gay marriage (or civil union) relieved the religious objector of a non-discrimination obligation is . . . zero.
Consider two cases commonly said to the illustrate the conflicts past and future. (1) In New Mexico, the state human-rights commission ruled that a husband-wide photographer team violated state law barring discrimination on the basis of sexual orientation for refusing to photograph a same-sex commitment ceremony. The case may illustrate the overreach of some state antidiscrimination laws, though even this is unclear since the commission did not even consider the religious-exemption claim, the ruling is on appeal, and there's a good argument it violates the First Amendment and the state's own RFRA. But it does not exemplify the threat of gay marriage, since neither SSM nor civil unions are recognized in the state. (2) In New Jersey, a church refused to rent part of its beach-front property to a lesbian couple for their commitment ceremony. The basis for the action was not any marriage or civil union entered by the lesbians, but the church's own agreement to make the property available to the public in exchange for special tax treatment. I have discussed these and other cases here.
The absence of conflicts is suggestive, but not decisive, on the need for special religious protections in SSM bills. Perhaps it's too early and such cases are like a gathering storm. There are fifty states, with fifty sets of laws related to marriage, civil rights, and religious liberty. But if Doug Laycock is right, and I think he is, we should have expected conflicts to peak in a state in the immediate aftermath of SSM or civil-union recognition when emotions are highest and opposition is boldest, with a decline thereafter.
The really interesting question is why there have been so few conflicts. The main reason, I suspect, is common sense and forbearance on the part of both gay couples and those who object on religious grounds to gay marriage. Unless they have no other choices, few gay couples want to pay for marital goods or services from people who don't want to provide them. Few service providers object to gay marriage on religious grounds and, as Laycock suggests, fewer still believe their faith requires them to refuse goods or services (or housing) to gay couples. Plus, they want the business.
Another reason we've had few conflicts is that this unusually religious and pluralistic country already respects and protects religious beliefs and practices to an extent unseen anywhere else in the world. There are the federal and state constitutions protecting religious freedom. Just about every antidiscrimination law protecting gays has been the result of legislative compromise in which the scope of the law was limited, or exemptions were added, to minimize conflicts with religious objectors in the most likely contexts (like religious groups, and small businesses and landlords). Additionally, half of the states require by statute or judicial decision a compelling state interest, enforced by means narrowly drawn, for any state policy that burdens religion.
Obviously, religious individuals, businesses, and organizations sometimes lose religious-freedom claims. But they also win a lot of the time, most recently and prominently when the California Supreme Court left undisturbed a lower court decision allowing a religious school to exclude two students having a suspected lesbian relationship. The religious school was not a business, said the state courts, and thus not even subject to the state's civil-rights law.
That's the experiential backdrop for the legal arguments.
II. SSM and religious liberty: some specific legal arguments
In their latest response, Berg et al. suggest a couple of specific ways in which SSM increases the legal risk to religious liberty beyond the risk they would face under existing antidiscrimination laws alone.
The first specific concern is that SSM will weaken a possible defense for religious objectors: that when they discriminate against gay couples in providing goods or services they are not really discriminating against homosexual orientation but against all "extramarital conduct." The professors cite Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), for the fear that marriage-based distinctions will collapse for religious objectors in an SSM world. In that case, the Court granted a preliminary injunction against a law school that de-recognized a student group excluding from membership all those who have sex outside of traditional man-woman marriage (e.g., adultery, fornication, homosexual acts).
The panel held that this conduct-based exclusion likely didn't even violate the school's policy against sexual orientation discrimination. What difference would it have made if Illinois recognized gay marriage? The CLS's discrimination would still have been directed at certain sexual conduct (that outside of traditional marriage) rather than to sexual orientation, which is all the policy (and state antidiscrimination law) prohibits. Now maybe a court would hold that such a conduct-based exclusion is really tantamount to an orientation-based exclusion. Or it might hold that the religious objector does not consistently oppose all extramarital conduct and is using that as a pretext for discrimination against gays. But neither conclusion would turn on whether the state recognized SSM, much less on whether the excluded student was in a same-sex marriage.
Equally important here, the court held that the group was likely protected by constitutional expressive-association and free-speech principles. These are complicated claims. But whatever we think of them, what difference would it have made to the constitutional claims if Illinois recognized gay marriages? I see nothing in the opinion, or in the constitutional precedents upon which it relies, that suggests it would have made a difference.
The second specific concern is that, in the context of a state RFRA defense, SSM will strengthen the government's hand in claiming that it has a "compelling interest" to eliminate sexual-orientation discrimination sufficient to override a religious-liberty defense. Take the New Mexico photographer case. In the absence of SSM, the religious objector might argue that the state can hardly have a compelling interest in forcing her to take pictures of a gay commitment ceremony if the state does not itself recognize gay marriages. The state is being inconsistent, one might argue, and this very inconsistency undermines its compelling-interest claim. If the state recognizes SSM, it will have consistently advanced its antidiscrimination interest.
Maybe that's true, but I doubt SSM will make a difference. In strict scrutiny, courts generally defer to the state on what counts as a compelling interest and focus on whether the means used to achieve it are narrowly tailored. The state would have a good argument that it is has a compelling interest in eradicating sexual-orientation discrimination in whatever context that discrimination arises. I am unaware of state or federal cases holding that there is no compelling state interest in fighting anti-gay discrimination (the Boy Scouts v. Dale case does not so hold, in my view). I think the state can plausibly say it has a compelling interest in ending all private discrimination without recognizing SSM. There's a big difference between forbidding a single act of discrimination, a discrete matter implicating a narrow but compelling interest in eliminating private discrimination, and recognizing gay marriage, a comprehensive matter in which the state has all kinds of other competing interests to weigh. Recognizing gay marriage would impose many costs and obligations on the state that it does not undertake when it enforces its antidiscrimination law. Why does it have to do everything to maintain a compelling interest in doing one thing? A similar analysis would apply to the state's interest in the Catholic Charities case.
Whether the state has advanced its compelling interest through narrowly tailored means should be the focus. Since many other photographers (and adoption agencies) are available to gay couples, the burden on particular religious objectors does not seem necessary to achieve the state's interest. But the means analysis does not hinge on whether the gay couple can marry under state law.
Let me be clear: I think both the New Mexico photographer and Catholic Charities should be exempt from compliance with state antidiscrimination law in the contexts in which these cases arose. The first result can and should be accomplished through existing limits on antidiscrimination law and religious-freedom principles. The second may require an exemption specifically crafted for religious organizations providing special-needs adoption services. But neither case has anything to do, as I see it, with gay marriage.
I'm hesitant to say that there will never be a case in which SSM will have made the difference between winning and losing for a religious-liberty claimant. Never is a long time, and never say never when it comes to courts. But at this point I do not think concerns about the direct legal effects of SSM should play much, if any, role in the debate over SSM.
The most that can be said is that SSM will help reinforce an idea that is already well underway in the law and in our culture: homosexuality is a benign variation of human sexuality. Every legal change in the status and protection of homosexuals over that past 50 years, from the elimination of sodomy laws to the creation of gay student groups, has both reflected and reinforced this trend. Each could have been, and was, opposed on the ground that it would promote a world view religious traditionalists oppose. Each made it marginally harder for religious traditionalists to teach their children that homosexuality is wrong, since the law no longer fully backed that teaching. Each increased by some degree the possibility that the cultural/legal environment would become more hostile for religious traditionalists. I don't doubt that marriage is another step in this direction, more or less significant than some of the others in terms of its impact on a traditionalist world view. (Probably less significant than legalizing homosexual sodomy but more significant than, say, allowing homosexuals to have security clearances.)
Even the process of sensitizing us to discrimination against a group like gays, however, occurs against the backdrop of a very deep and still popular commitment to protecting religious freedom. It's no accident that Congress overwhelmingly passed RFRA or that many states have passed their own versions. After almost 150 years of expanding civil-rights laws in scope and breadth, of hate crimes laws, of equality for women and blacks, of major changes in marriage, and of liberalization of attitudes toward gays, we're still the most religiously tolerant, diverse, and observant Western country.
III. How should religious freedom be protected in SSM bills?
As I read their draft exemption and their reply to my questions about it, the professors' proposal leaves in place whatever antidiscrimination requirements are already embodied in state law. It simply negates any antidiscrimination obligation they might have arising from the provision of marriage-related services, etc. It does not eliminate their obligations under general state antidiscrimination law that arise independent of any marriage. If that's right, none of the cases they have cited, and none that I have reviewed, would come out differently under their proposal. The New Mexico case, the New Jersey pavilion, and even the Catholic Charities case would have been resolved for (or against) the religious objectors under existing doctrine since none of them turn on the marital status of the gay couples involved. I think any potential overreach of antidiscrimination law can best be addressed in the context of those laws by, e.g., providing a religious exemption for small businesses and landlords, religious nonprofit businesses, and personal and non-essential service providers (like wedding photographers, florists, and others).
The substantive case for crafting special religious protection in state legislation authorizing SSM is not very strong, for reasons I've given above. The political case for adding special religious protection seems much stronger, since doing so may allow legislators to alleviate reasonable fears and reduce the opportunity for demagoguery against gay marriage -- all while protecting gay families in the law. While I don't think the special protections drafted by the professors are necessary to secure religious liberty, I'm also at a loss to see how they hurt much, as long as two things are kept in mind.
First, any special religious exemption should provide (as the professors suggest) a "hardship exception" for gay couples who cannot readily and easily find the goods (like flowers) or services (like a caterer) elsewhere. The draft of the proposal sent to the Connecticut legislature two weeks ago provides no such hardship exception. It's easy to imagine that a gay couple in an urban area can find an adoption service or a photographer. It's harder to imagine that in the middle of Montana. It's also hard to justify allowing, say, a Catholic hospital to bar a person from his dying spouse's room on the grounds that the hospital does not recognize their marriage as valid. All that may be needed to deal with these hardship cases is an explicit provision in the marriage context applying the compelling-interest test common in state statute and decisional law. I'd be happy to work with the professors on drafting something like that to deal with such cases.
Second, while I would like to see greater protection for individuals whose religious beliefs are burdened by antidiscrimination law, I am wary of introducing that idea into the provision of services to the public by employees of the state. Because of their position as representatives of the state, because they administer laws that benefit the public, and because they are paid by public tax money, these employees are treated differently than we treat private employees or members of the public themselves (see, e.g., free-speech rights). The only cases in which the existence of SSM or civil unions actually have imposed obligations on religious dissenters are ones in which marriage-license bureau clerks have refused to do their jobs. Even these have been few. If we could be sure that an exemption covering state employees would be limited to purely ministerial acts (like stamping a marriage application) for which there is another person readily available (not 100 miles away at the next courthouse), there would be no practical harm in it. But as I read the professors' draft exemption, there is no qualitative limit on the claims that could be made by state employees, including judges who refuse to preside over SSM divorces. The state administers so many benefits under marriage law that an exemption for government employees from doing their jobs has potentially unlimited applications.