Impact of same-sex marriage rulings on strict scrutiny in religious exemption cases

[Volokh, Eugene]

	I think Tom is quite right here.  Note how the California, Iowa,
Massachusetts, and Vermont cases relied on legislative decisions
approving of gay rights -- antidiscrimination laws, hate crime laws, and
other laws -- in striking down a legislative decision against same-sex
marriage:  The past decisions banning private discrimination (among
other decisions) were seen as undermining the state's case for
discriminating itself.  See
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#123894813
2.  And this was so even though the legislature clearly didn't aim at
legalizing same-sex marriage through its past decisions:  The
legislative decisions ended up having a broader indirect legal impact
than the legislature intended, or than the legislature wrote into its
statutes.

	It seems to me plausible that judicial decisions banning
opposite-sex-only marriage rules would likewise come to be extended --
by legislatures or by courts -- to go beyond their literal boundaries (a
decision about government discrimination) and instead to justify bans on
private discrimination.  Already we've seen expressive association, free
speech, and religious freedom claims responded to by saying that a
certain private action is contrary to constitutional norms:  The
government may not discriminate based on race and sex, therefore there
must be an especially compelling interest in stopping private
individuals engaging in discrimination, or saying things that create an
"offensive environment," on those bases.  (This is a staple of
anti-"hate speech" arguments.)  As constitutional norms are extended to
ban even highly traditional, well-entrenched discrimination by the
government, it seems quite likely that they will spill over into
diminishing any constitutional (or RFRA-statutory) claims to engage in
such discrimination by private entities, including Boy-Scout-like
organizations, churches, religious universities, and other institutions.

	Tom's post discusses some of the purely legal mechanisms through
which this might happen more concretely; I talk about some similar
political mechanisms in Part V of my Same-Sex Marriage and Slippery
Slopes article, http://www.law.ucla.edu/volokh/marriage.pdf.  But the
broader point is this:  Given the tendency in our legal tradition -- and
in particular in the same-sex marriage cases -- to read past decisions
(even statutory decisions) as establishing broader propositions that
influence (inadvertently, from the past decisionmaker's perspective)
future decisions, why isn't it quite reasonable for private groups that
disapprove of homosexuality to worry that the constitutional same-sex
marriage decisions will indeed erode their future expressive
association, religious freedom, and free speech claims?

	Eugene



Tom Berg writes:

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
man!
 y 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.