Same-sex marriage symposium: The overlooked benefit of leaving Perry in place

The following contribution to our same-sex marriage symposium comes from Robin Fretwell Wilson, Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law and co-editor of Same-Sex Marriage and Religious Liberty:  Emerging Conflicts, and Anthony Michael Kreis, Washington and Lee Law graduate and a Ph.D. candidate in the School of Public and International Affairs at the University of Georgia.

Few decisions are so roundly criticized as the Ninth Circuit’s decision in Perry v. Brown.  Same-sex marriage opponents predictably called it a form of “judicial tyranny” while some marriage proponents described it as “dishonest and foolish.”  If the Supreme Court denies certiorari, it will likely satisfy neither side fully.

However, the denial of cert. would have the singular benefit, as the City of San Francisco suggests in its brief in opposition, of allowing the “significant constitutional questions” surrounding same-sex marriage to “percolate . . . [so that the] ‘perspective of time’ helps to shed more light on the weighty issues they present.” The need for percolation is particularly imperative because, as the city highlights, “this case raises issues that are currently the subject of intense legislative and popular debate.”

Not least among the issues being resolved by the state legislatures that have considered and sometimes recognized same-sex marriage legislatively is how best to balance compelling societal interests in our plural democratic society when recognizing same-sex marriage.

Through sometimes bruising legislative battles, nuanced laws recognizing same-sex marriage have been crafted in seven jurisdictions, where legislators have acknowledged two compelling values – marriage equality and religious liberty.

These states have all acknowledged the impact of same-sex marriage laws on a wide swath of society that adheres to a heterosexual view of marriage. Each law provides religious liberty protections to the clergy, but then reaches beyond guarantees given by the First Amendment. A core of protections has emerged for religious organizations and individuals who cannot celebrate or facilitate any marriage when doing so would violate their religious convictions.

Although each law describes the exempt activities in slightly different terms, they generally allow objecting religious institutions and religious non-profits to step aside from providing “services, accommodations, advantages, facilities, goods, or privileges to an individual if … related to the solemnization of a marriage [or] the celebration of a marriage.”  These statutes insulate religious organizations from civil suits for refusing to celebrate marriages, while six of the seven explicitly protect such organizations from punishment at the hands of the government.

All insulate religious not-for-profits, like Catholic Charities or the Salvation Army, from the duty to celebrate or solemnize marriages that violate their religious tenets. Four 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. In New York, New Hampshire, and Washington, individual employees of these groups receive protection, too. Although many provisions were cobbled together in the pressure cooker of short legislative sessions and so are far from perfect, they nonetheless sweep far beyond the church sanctuary, providing accommodations that exceed what most scholars believe would be constitutionally demanded.

While accommodations obviously benefit religious objectors, accommodations have also become a pathway to social change for same-sex marriage advocates.  Indeed, as the legislators responsible for this legislation explain, marriage equality has shared an inseparable fate with religious liberty protections.

In New York, Maryland, and Washington, religious accommodations helped same-sex marriage advocates secure long-sought victories. Only months before the successful legislation, proposed legislation offering “faux” protections only to the clergy – who simply do not need it – failed to garner sufficient support  in all three states. After Governor Andrew Cuomo signed New York’s same-sex marriage law in the summer of 2011, The New York Times observed that the religious exemptions were:

 just a few paragraphs, but they proved to be the most microscopically examined and debated — and the most pivotal — in the battle over same-sex marriage…. Language that Republican senators inserted into the bill legalizing same-sex marriage provided more expansive protections for religious organizations and helped pull the legislation over the finish line Friday night.

Others took note, like Washington State Governor Christine Gregoire.  Working with members of the legislature, Governor Gregoire drafted her own same-sex marriage legislation containing much more expansive religious liberty provisions than introduced previously.  Governor Gregoire said in a telephone interview:

I looked at what New York had done.  I worked with our gay community.  I told them that that was the only way I would introduce the bill.  There were some people who wanted to compromise on [the religious liberty protections] in the future.  But I said, “No,” that this was in part a reflection of my evolution on the issue, and it wasn’t compromisable.

As in New York and Washington, in Maryland religious liberty exemptions shifted the question for some legislators from whether to embrace marriage equality to how to balance that good with religious liberty.That shift resulted in successful legislation in 2012 where it had failed in 2011.  Speaker Busch of the Maryland House of Delegates said in an interview that revamped, more expansive religious liberty protections made the difference:

We didn’t want to inhibit any religious organization from practicing their beliefs.  One of the issues was the adoption issue.  We wanted to make sure we didn’t impede on the Catholic Church for adoption services.  … I know for a fact that for two or three delegates [including religious liberty protections] was an important component in their decision to vote for it.

Even in the earliest fights over same-sex marriage, religious liberty protections proved vital. In 2009, the New Hampshire House and Senate passed a same-sex marriage bill without meaningful religious liberty protections, by razor-thin majorities. Governor John Lynch then warned legislators, “If the legislature passes [religious liberty protections], I will sign the same-sex marriage bill into law. If the legislature doesn’t pass these provisions, I will veto it.” The legislature heeded his caution and New Hampshire has same-sex marriage today, notwithstanding later efforts to repeal that legislation.

Contrast these legislative victories with the defeat in Maine. There, Maine legislators stubbornly refused to include religious liberty protections in its 2009 same-sex marriage legislation. They enacted a law that allowed religious institutions to control their religious doctrines and protected clergy and authorized celebrants from fines or other penalties for refusing to “join persons in marriage.” It provided no other protection.

Later that year, Maine voters narrowly rejected Maine’s same-sex marriage law in a people’s veto –fifty-three percent to forty-seven percent. One way to read Maine’s experience is that same-sex marriage laws without meaningful religious liberty protections makes making the case for same-sex marriage much more difficult.

Whatever else may be said of leaving the Ninth Circuit’s opinion in Perry intact, it will allow legislators in Delaware, Illinois, New Jersey, Rhode Island, and California to build on this burgeoning story of compromise – and that is a good thing for same-sex marriage supporters and opponents alike.