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

Wed Apr 8 05:01:40 PDT 2009

The difficulty, as always, is to strike a balance between allowing religious freedom, and stopping abuse of people, even under religious guise.  

Substitute "ritual genital mutilation" as the issue in Roger's post, and see if your views differ on what the state should do or not do. 

What is sacred, and how much bother or what some see as harm are we willing to put up with to protect the sacredness?  How much harm must a sacred idea do before we say "no?"  These issues will turn on who puts out the best Brandeis brief, I think; and the first court to be persuaded is the public court, not the one vested with the legal authority.  In many ways, that court has already ruled.

How will the legal courts catch up?

Ed Darrell
Dallas

--- On Tue, 4/7/09, Roger Severino <rseverino1 at hotmail.com> wrote:
From: Roger Severino <rseverino1 at hotmail.com>
Subject: RE: Impact of same-sex marriage rulings on strict scrutiny in religious exemption cases
To: religionlaw at lists.ucla.edu
Date: Tuesday, April 7, 2009, 10:09 PM

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For those who might be interested, I discuss these and related issues in an article titled "Or For Poorer? How Same-Sex Marriage Threatens Religious Liberty," published while I was working for the Becket Fund for
Religious Liberty.  It is available here http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No3_Severinoonline.pdf.  I can also forward anyone an updated version of the article not available online.
I am always disappointed to see discussions that focus on whether or not houses of worship will ever be directly compelled to perform *religious* same-sex marriages ceremonies because I think they distract from many other, more realistic, threats to religious liberty.  For example, what will happen to pastors and imams that refuse to say "by the power vested in me by the state of Iowa, I now pronounce you husband and husband?"  Since Massachusetts fired similarly dissenting Justices of the Peace after Goodridge, what is to stop Iowa from stripping dissenting religious institutions, and only such institutions, of the power to solemnize
*civil* marriages?  

In fact, there are several other licensing regimes
where the issue of marriage and religious liberty bump against each other.  Take for example the experience of Catholic
Charities in Boston.  After many decades of service, Catholic Charities no
longer performs adoption placements in Boston
because it cannot in good conscience place children in same-sex households as
demanded by the state which licenses adoption agencies. http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp.  Catholic Charities arguably once had a way out
from under these regulations while still providing adoption services consistent with their religious convictions.  They could have created, if they hadn't already, a policy of placing children only with legally-married couples.  That option was taken away with Goodridge's legal recognition of same-sex marriage. 

As for the potential loss of tax-exemption for dissenting religious institutions, the issue is no
longer theoretical.  In 2007 a New Jersey religious organization was denied part of its real estate tax exemption
because it refused to perform same-sex ceremonies on a
open-air pavilion situated on beach-front property that it owned. http://www.nytimes.com/2007/09/18/nyregion/18grove.html
More generally, given the strong equality justifications now used by some courts and legislatures for same-sex marriage, I think it's fair to suspect that these governmental bodies will treat religious institutions that oppose same-sex marriage in much the same way that they have treated the Boy Scouts after Dale.  See Barnes-Wallace, Evans v. Berkeley, Boy Scouts v. Wyman, among others.
-Roger Severino

    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.
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