Balancing marriage equality with other social goods

The following contribution to our same-sex marriage symposium is by Robin Fretwell Wilson, the Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law and a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., Rowman & Littlefield Publishers, Inc., 2008)

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The constitutional challenges presented by Perry v. Schwarzenegger (now Perry v. Brown) and Windsor v. United States leave little doubt that a U.S. Supreme Court decision on same-sex marriage is inevitable.  Plaintiffs in both suits marshal heart-wrenching evidence that their lives and relationships have been made poorer by their exclusion from the institution of marriage or by the federal government’s refusal to recognize their marriages.

Judge Walker’s extensive findings of fact suggest that this pitched battle over marriage largely emanates from religious believers – he concludes, among other things, that “[r]eligious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.”  This is far too simplistic. Public opinion polls show that many religious believers support legal recognition of same-sex relationships.  Even religious institutions fail to fall squarely on one side of the issue, with some opposing same-sex marriage legislation while others prepare to celebrate same-sex marriage rites.

Nonetheless, it is true that some religious believers who adhere to a traditional view of marriage do have much at stake in these challenges.  Indeed, every state establishing same-sex marriage through legislation has recognized this (Vermont, Connecticut, New Hampshire, New York, and the District of Columbia).  Each provides religious liberty protections to the clergy, but then reach beyond guarantees given by the First Amendment.  A core of protections has emerged for religious organizations and individuals who cannot, consistent with their religious convictions, celebrate or facilitate same-sex marriages.  All insulate religious not-for-profits, like Catholic Charities and the Salvation Army, from civil suits for refusing to celebrate marriages that violate their religious tenets.  Four of the five explicitly protect such organizations from punishment at the hands of the government.  Some extend these protections to benevolent religious organizations like the Knights of Columbus or to religious groups that sponsor marriage retreats or provide housing for married individuals.  And in New York and New Hampshire, individual employees of these groups receive protection too.  These robust protections for religious liberty sweep far beyond the church sanctuary, providing accommodations that exceed what most scholars believe would be constitutionally demanded.

These state laws provide much-needed protection.  In the absence of specific exemptions, groups that hew to their religious beliefs about marriage risk losing government contracts and benefits, and may face lawsuits from private citizens.  These concerns are not speculative.  The City of San Francisco yanked $3.5 million in social services contracts from the Salvation Army when it refused, for religious reasons, to provide benefits to its employees’ same-sex partners.  In New Jersey, two same-sex couples sued a Methodist not-for-profit group when it denied their requests to use the group’s boardwalk pavilion for their commitment ceremonies.  This costly and protracted litigation is still pending.

Civil rights legislation has long balanced the many competing interests that necessarily co-exist in a plural democratic society.  In fact, the robust accommodations that these states have crafted mirror those found in Title VII of the Civil Rights Act of 1964 and those found in every draft of the Employment Non-Discrimination Act since the bill’s introduction in Congress.  It is no surprise that religious liberty accommodations routinely appear in state civil rights legislation such as state fair employment and fair housing acts.

How the Supreme Court will come out on same-sex marriage is anyone’s guess. But if the Supreme Court does weigh in here, an unintended consequence of its decision may be to strangle the delicate process unfolding in state legislatures across the country by changing the political calculus for granting robust accommodations.  If the Court recognizes a federal constitutional right to same-sex marriage, it should take care to leave a space for individual states to continue to decide how best to balance marriage equality with other goods in society.