Americans United: Iowa Supreme CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

Mon Apr 6 23:42:38 PDT 2009

In response to Steve Sanders:  Before same-sex marriage, traditionalist religious organizations have been able to argue, sometimes successfully, that a range of their associational decisions reflected opposition to extramarital conduct in general, not discrimination based on sexual orientation.  CLS v. Walker, 453 F.3d 853, 860 (7th Cir. 2006) (membership and leadership positions).  But when the gay applicant is married to his or her partner, that argument may well be eliminated.  I realize Steve would probably answer that the organization was always engaged in orientation discrimination rather than marital discrimination because it wouldn't treat same-sex couples' marriages as legitimate, and that after SSM the situation is just more honest.  That may be; all I was saying was that religious organizations had a (sometimes successful) argument, one that could protect their religious liberty implicitly.  If that argument disappears, the conflict with religious liberty claims becomes unavoidable.  Steve may think that the religious liberty claim should lose, but the point is that the number of conflicts will increase.   

Moreover, what the state recognizes as marriage has a spillover effect on how other issues are resolved.  If an institution asserts a constitutional or state RFRA defense to a claim of sexual-orientation discrimination in hiring, and the compelling-state-interest test or something like it applies, courts look at how the sort of discrimination in question is treated in other contexts.  Religious institutions could and did say to the state, "You can't treat nondiscrimination concerning homosexuality as a compelling interest, since you make a distinction in your marriage law."  After SSM they can't say that.  More generally, the logic of Bob Jones is that the more pervasively an antidiscrimination interest is reflected in the government's laws, the more likely it is to be a compelling interest overriding religious liberty (a "firm policy," the Court called it, as I mentioned before).  I think that this is troublesome logic, since it contributes to the zero-sum attitude that many of us bemoan in the area of traditionalist religion and gay rights: the idea that every advance for SSM is a loss for religious liberty and vice versa.  If we can agree that the relationships that the state accepts and benefits as marriage do not dictate what relationships a religious institution must accept and benefit, then both sides can pursue their beliefs.  But without exemptions in some way accompanying the same-sex-marriage law, the zero-sum dynamic will tend to operate.  So if you think, as I do, that protection should cover religious schools and social services, not just houses of worship, you'd want a broader exemption.             

To answer Steve's hypothetical, if a religious institution opposes marrying outside the faith, I think it should be able to make employment decisions on that basis.  And the institution might think that it's not a sufficient reason to refuse to employ the person but that it is a sufficient reason to refuse to pay benefits tied to the very relationship the institution regards as wrong.  If the exemption is limited to nonprofit ideological organizations and doesn't extend to commercial business, I think it's unlikely to restrict employment options enough to constitute an overriding interest.

-----------------------------------------
Thomas C. Berg
St. Ives Professor of Law
Co-Director, Murphy Institute for Catholic Thought, Law,
     and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcberg at stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
----------------------------------------------------------------------------
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Steve Sanders [stevesan at umich.edu]
Sent: Tuesday, April 07, 2009 12:50 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Americans United: Iowa Supreme     CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United

Professor Berg writes:  "Without significant exemptions, the advent of
same-sex marriage in a state increases the prospect that non-profit
religious schools and social services, even those with religious content
throughout their programs, will be punished if they refuse to hire openly
gay people as teachers or counselors or to pay benefits to their partners."

Up until the phrase "or to pay benefits to their partners," I'm afraid I
can't follow the logic.  A single gay person could already attempt to pitch
a fuss about being refused employment by a non-profit religious school or
social service.  How does the advent of same-sex marriage increase the
likelihood that such challenges will succeed?  If a gay person is denied a
job on the basis of sexual orientation, what difference does it make whether
he's single or married?

Benefits to spouses may be a different issue.  If a religious school or
social service employs a gay person, that person is legally married, and the
relevant state recognizes the marriage, then can someone suggest a legal
argument under which the employer could legitimately refuse to subsidize
health insurance for the gay spouse while doing so for a heterosexual
spouse?  If not, what's the best argument for an exemption?

What if a heterosexual spouse who was seeking benefits subscribed to
religious doctrines that were incompatible with those of the religious
employer.  Would an exemption be justified under those circumstances?  Why
is that different than they gay spouse?

_____________________________________

Steve Sanders
Attorney, Supreme Court and appellate litigation practice group, Mayer Brown
LLP, Chicago
Co-editor, Sexual Orientation and the Law Blog
Adjunct faculty, University of Michigan Law School (Winter term 2010)
Email: stevesan at umich.edu
Personal home page: www.stevesanders.net

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Berg, Thomas C.
> Sent: Monday, April 06, 2009 7:45 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Americans United: Iowa Supreme
> CourtRulingOnMarriageUpholdsReligious Liberty, Says Americans United
>
> I agree that it is extremely unlikely that an objecting
> church or clergyperson will be forced to host or perform a
> same-sex marriage.  But I wouldn't rest this on the argument
> that no couple would seek to be married by someone who
> doesn't want to marry them.  After all, it's a good question
> why any couple would want, from all the wedding photographers
> available, one "who [in Alan's terms] thinks their
> relationship is sinful and is only [conceiving and shooting
> the pictures] under threat of legal sanction."  To subject
> Elaine Huguenin, the photographer, to a legal sanction of
> $6,600-plus, all Vanessa Willcock and her partner had to do
> was complain to the New Mexico Human Rights Commission on the
> ground that they felt "shocked, angered, saddened," and
> "fearful" when Elaine told them she didn't do same-sex
> ceremonies.  It is hard to deny that some gay-rights
> proponents want to get antidiscrimination sanctions against
> conscientious objectors whose services they wouldn't actually!
>   want, or need, to use.  That may not extend to forcing
> houses of worship to marry people, but not because of a
> general "live and let live" attitude.
>
> I applaud Alan's proposal for an exemption in the next
> California proposal, but why shouldn't the exemption be
> broader?  The hypothetical church pressured to perform a
> ceremony hardly exhausts the range of religious liberty
> issues raised by same-sex marriage.  Without significant
> exemptions, the advent of same-sex marriage in a state
> increases the prospect that non-profit religious schools and
> social services, even those with religious content throughout
> their programs, will be punished if they refuse to hire
> openly gay people as teachers or counselors or to pay
> benefits to their partners.  It may do this by directly
> triggering the obligation to pay spousal benefits, by
> changing the legal characterization of a hiring decision from
> marital-status discrimination to sexual-orientation
> discrimination, or by strengthening the claim that -- like
> race in Bob Jones -- there is a "firm [governmental] policy"
> against sexual-orientation discrimination in virtually every context.
>
> -----------------------------------------
> Thomas C. Berg
> St. Ives Professor of Law
> Co-Director, Murphy Institute for Catholic Thought, Law,
>      and Public Policy
> University of St. Thomas School of Law
> MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN   55403-2015
> Phone: (651) 962-4918
> Fax: (651) 962-4996
> E-mail: tcberg at stthomas.edu
> SSRN: http://ssrn.com/author='261564
> Weblog: http://www.mirrorofjustice.blogs.com/mirrorofjustice
> --------------------------------------------------------------
> --------------
> ________________________________________
> From: religionlaw-bounces at lists.ucla.edu
> [religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein,
> Alan [aebrownstein at ucdavis.edu]
> Sent: Saturday, April 04, 2009 6:37 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Americans United: Iowa Supreme Court
> RulingOnMarriageUpholdsReligious Liberty, Says Americans United
>
> As a hypothetical question, I think there is an
> extraordinarily slight possibility that churches or clergy
> will ever be required to host or officiate the marriages of
> same sex couples. But this issue isn't being raised as a
> hypothetical question. It is being argued as a basis for
> denying same-sex couples the right  to marry now. I suspect
> the reason why some members of this list used terms like
> "fear mongering" is because discrimination against gays and
> lesbians isn't speculative. It is real, ongoing, and hurtful.
> And is frustrating to hear people defend this discrimination
> on the basis of such a remote possibility in some future
> world that doesn't come close to existing now.
>
> When I talk to people who are starting to prepare for the
> next constitutional amendment on same-sex marriage in
> California -- one that will be drafted by proponents of
> same-sex marriages -- there is a general consensus that one
> of the reasons Proposition 8 passed was that its supporters
> convinced people who didn't know any better that there was a
> real threat that their pastors and priests would be forced to
> marry same-sex couples. Virtually everyone I talk to is
> looking for ways to defuse this issue because they think it
> is false. No one wants to be married in a church that
> condemns their relationship by a member of the clergy who
> thinks their relationship is sinful and is only officiating
> at the ceremony under threat of legal sanction.
>
> I am recommending that this new amendment recognizing the
> validity of same-sex marriages should include a provision
> guaranteeing that no member of the clergy or house of worship
> can be required to officiate over or host such a ceremony. I
> haven't met a single person who opposes that idea. Many think
> it is unnecessary because such compulsion is already
> prohibited by the First Amendment. But they still support the
> idea because it may make same-sex marriages seem less
> threatening to some voters -- and because no one cares about
> not being able to get married in a church that condemns their
> relationship in the first place.
>
> Alan Brownstein
> ________________________________________
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private.  Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu To
> subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private.  Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
>
>

_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.