Balancing away marriage equality

The following contribution to our same-sex marriage symposium is written by Jana Singer,  Professor of Law at the University of Maryland School of Law. Professor Singer  teaches Family Law, Constitutional Law and Contracts.  She has written widely on family and children’s issues and is the co-editor of Resolving Family Conflicts (Ashgate, 2008).

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In her recent symposium post, Professor Robin Wilson advocates balancing marriage equality with other social goods by enacting “robust protections for religious liberty that sweep far beyond the church sanctuary.”  Although Wilson is vague on what such “robust protections” would entail, her advocacy in other contexts provides more detail.  For example, in last year’s legislative debate over marriage equality in Maryland, Professor Wilson and others advocated exemptions that would have permitted individuals and small businesses, as well as religious organizations, to refuse to provide goods, services or benefits to facilitate or perpetuate any marriage if doing so would “violate their sincerely held religious beliefs.”  The exemption for individuals would apply both to private actors and to government employees — such as court clerks who issue marriage licenses — as long as another official were available to provide the requested service without undue delay.

Such broad-based exemptions are both constitutionally problematic and politically unwise.  As Professors Wilson and Berg acknowledge, religious-based accommodations to same-sex marriage recognition are not required by current constitutional jurisprudence.  The Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith established that “a law that is neutral and of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice.”   Since a law requiring recognition of same-sex marriage is neutral and generally applicable, and is not targeted at religion, it would be subject only to rational basis review and would easily satisfy this level of scrutiny.

What Wilson and others fail to acknowledge, however, is that exemptions that reach “beyond the church sanctuary” to privilege the religiously motivated conduct of individuals and business entities may themselves be unconstitutional.  Although the Supreme Court has indicated that there is “play in the joints” between the Free Exercise and Establishment clauses, it has approved religious-based exemptions from generally applicable laws only in very narrow circumstances.  For example, in Church of Jesus Christ of Latter-Day Saints v Amos, the Court upheld a provision of the Civil Rights Act of 1964 which exempted religious organizations from Title VII’s general ban on religious discrimination in employment.  Purporting to apply the three-part Establishment Clause test from Lemon v Kurtzman, the Court found that it was a permissible secular purpose “to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.”   The Court also concluded that the exemption did not constitute an impermissible government endorsement of religion since it merely allowed religious organizations effectively to carry out their religious purposes.  Significantly, the exemption upheld in Amos applied only to Title VII’s ban on religious discrimination, not to its other non-discrimination provisions.

The Court relied heavily on Amos’s “alleviation of burdens” rationale in 2005 when it rejected an Establishment Clause challenge to a provision of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) which prohibits federal and state governments from imposing a substantial burden on the religious exercise of persons residing in institutions, unless the burden furthers a compelling governmental interest and does so by the least restrictive means.  The Court found the challenged provision compatible with the Establishment Clause primarily “because it alleviates exceptional government-created burdens on private religious exercise.”  The Court noted that the provision applied to state-run institutions “in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise” and that it “protects institutionalized person who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.”

These narrow rationales do not apply in the context of same-sex marriage recognition.  The exemptions that Wilson and others propose do not safeguard the internal activities or missions of religious organizations, nor do they accommodate individuals confined to state-run institutions.  Rather, the proposed exemptions seek to immunize discriminatory conduct by individuals, officials and market-based entities on the grounds that the discrimination is motivated by sincerely held religious beliefs.  Such a privileging of otherwise prohibited conduct on the basis of its religious origin constitutes the sort of government endorsement of religion that the Court has previously found to violate the Establishment Clause. Moreover, determining when the conduct of an individual or business entity is motivated by a “sincerely held religious belief” raises significant entanglement problems.

In addition to creating Establishment Clause difficulties, state-endorsed exemptions to same-sex marriage recognition raise serious equal protection concerns.  These concerns are heightened by the status of marriage as a fundamental right.  Once a state expands its definition of marriage to include same-sex unions – whether by legislative action or in response to a Supreme Court decision — equal protection principles should limit that state’s ability to distinguish among recognized marriages and, in particular, to treat some marriages less favorably than others – at least without demonstrating that the differential treatment is closely related to a significant governmental interest.  Supreme Court precedent suggests that such heightened scrutiny is difficult to satisfy in the marriage context; even if a state can establish a compelling interest in protecting religious liberty, it must demonstrate an exceedingly tight fit between that interest and whatever exemption scheme that it adopts.

Moreover, even if broad religious-based exemptions to same-sex marriage recognition could be justified on constitutional grounds, they are extremely troubling as a matter of public policy.  First, if taken seriously, Wilson and Berg’s arguments would apply to a broad range of religiously motivated conduct.  For example, an individual or small business owner who believed, on religious grounds, that homosexual conduct was itself sinful might be permitted to refuse to serve all gay and lesbian couples — not just prospective marriage partners — on the ground that serving such customers would facilitate the offending conduct.  Or suppose that the religiously based objection is to same-sex couples raising children, rather than to same-sex marriage.  Should a nursery school or day-care provider be permitted to exclude or deny services to the child of a gay or lesbian couple because those services facilitate same-sex parenting?

And what to do about religious-based objections to interracial marriage?  As others have noted, religious justifications were central to Virginia’s defense of its anti-miscegenation law in Loving v Virginia.  Nor have such religiously based objections to interracial marriage entirely disappeared.  Less than two years ago, a Louisiana justice of the peace refused to marry an interracial couple in part because he believed that their children would suffer as a result of the union.  The justice later resigned after a public outcry, but the logic behind Professor Wilson’s proposed exemptions might well have protected the justice’s conduct.  Recognizing the analogy, Professor Douglas Laycock has written, in support of Wilson’s proposal, that “in more traditional communities, same sex couples might be forced to pick their merchants carefully, like black families driving across the South half a century ago.”  This is hardly a scenario to which most would aspire.

Advocates of religious exemptions to marriage equality often cite federal and state “conscience clause” provisions as support for their proposals.  These provisions typically protect health-care organizations and individuals from being forced to provide abortion and other reproductive health services that conflict with their religious or moral beliefs.  Such conscience clause provisions are controversial, and a full discussion of their constitutionality and wisdom is beyond the scope of this post.  However, even if conscience clauses represented good law and policy in the health-care context, they would not provide a persuasive analogy for religious based exemptions to same-sex marriage recognition.  First, virtually all federal and state conscience clause provisions extend protection to health-care providers who object to covered procedures for moral or ethical reasons, as well as on religious grounds.  This inclusion of both religious and non-religious objections significantly ameliorates the Establishment Clause concerns discussed earlier.  Second, health-related conscience clauses are generally limited to shielding providers from having to participate directly in a procedure they find religiously or morally objectionable.  The clauses do not extend protection to religiously motivated conduct that merely “facilitates” the disfavored procedure, nor do they justify differential treatment of individuals (or couples) who have undergone the procedure.  Thus, the analogy to health-based conscience clauses at most applies to individuals who perform or solemnize marriages, not to the related services of caterers, photographers or facility owners.

Third, the competing patient rights at issue in the health-care context are primarily negative rights – e.g., the right to be free of “undue” government interference with respect to reproductive and contraceptive decision-making.  As Professor Wilson has pointed out – and as the abortion funding cases make painfully clear – these are not positive rights to government endorsement or assistance.  Civil marriage, by contrast, is a positive right – a status created and privileged by the state.  One of its primary purposes is to confer state recognition and endorsement on a relationship – indeed, that is largely why the issue of same-sex marriage is so fraught on both sides.  This difference suggests that religious-based exemptions to same-sex marriage cut deeply into the underlying right — and the equality norms that support it — in a way that conscience clause protections do not.  Thus, the emphasis of many exemption proponents on the “insubstantial burdens” that their proposals would impose on individual same-sex couples misses an important point.  Once the state recognizes same-sex marriage, it should not be able to dilute that recognition by differentiating among marriages or by allowing private individuals or entities to do so.