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November 07, 2013

Response from Scholars Supporting "Marriage Conscience" Religious Liberty Protection

For several years now, two groups of religious-liberty scholars have been urging state legislatures considering recognizing same-sex marriage to address religious liberty issues explicitly and give meaningful "marriage conscience protection" to religious objectors.  (See archive of our letters/memos.  One group of us is made up entirely of supporters of same-sex marriage; the other group includes some supporters, some opposed or skeptical, and some undecideds; but we all support meaningful religious-liberty protection.)  Now our arguments and proposal have been criticized by another group of five constitutional scholars who wrote last week to Illinois legislators.  Dale Carpenter, one of the five, has posted their letter and summarized its arguments at the Volokh Conspiracy.  We’ll do a full response to the letter, but that requires more length and detail than a blog post permits.  So here we respond to Professor Carpenter’s post and the general arguments of the letter that it reflects.

1.  Carpenter’s first assertion, summarizing his group’s letter, is that “recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill,” because the “cases in which such conflicts are said to exist arise entirely from pre-existing antidiscrimination law” and should be handled through that pre-existing law.  Let’s begin by making one point clear: our proposal does not aim to deal with conflicts between antidiscrimination law and religious objectors in general.  Under our proposal, antidiscrimination law can still require religious individuals and groups in many contexts to serve or employ gays and lesbians who are in same-sex marriages.  We protect objectors when they would be forced to facilitate the conduct directly or affirmatively “recognize the marriage”: religious marriage counselors counseling same-sex couples, religious colleges opening married-student housing to same-sex couples, etc.  We protect a refusal to facilitate or recognize the union itself, not a refusal to deal with an individual simply because he or she is in such a union.   

Carpenter’s group makes a fair point that objections to facilitating same-sex unions predate the recognition of same-sex marriage.  But the statement that recognizing same-sex marriage “creates no need to adjust the degree of protection" ignores reality: same-sex marriage does change the picture.  Most obviously, it increases the number of potential conflicts.  The number of same-sex marriages is accelerating rapidly as more states (especially larger states) are recognizing it.  There will be a lot more wedding ceremonies than there were commitment ceremonies.  Beyond that, for many religious objectors marriage is a different matter than a non-marital union: marriage for them is a sacrament, and state recognition of same-sex marriage makes antidiscrimination law apply to a matter of profound religious significance.  That view should not of course determine how the state defines civil marriage, but neither should the state ignore it in determining the fair scope of protection for conscientious objectors.

Moreover, recognition of same-sex marriage without explicit exemptions will likely weaken the legal strength of religious conscience claims beyond the situation of marriage.  This is because of, among other things, what might be called the "Bob Jones effect," named for the fundamentalist college whose federal tax exemption was stripped in the 1970s because it forbade interracial dating by students.  The Supreme Court upheld that penalty because it found that "myriad" laws against race discrimination in education, which had few if any exemptions, showed a "firm national policy" that would permit no exception even for a small college that attracted no one but like-minded students.  Marriage traditionalists can reasonably fear similar consequences for their beliefs if same-sex marriage—the latest of many steps toward gay/lesbian legal equality—is repeatedly enacted with few or no exemptions.  If prohibitions on sexual-orientation discrimination, like those on race discrimination, must have few or no exceptions, then state or federal tax exemptions may eventually be at risk for virtually every evangelical, traditional Catholic, Orthodox Jewish, or Muslim school and social service.  Passing same-sex marriage without explicit exemptions can easily send a message that the traditionalist views on sexual morality must be marginalized in every context, not just marriage.

Carpenter’s group says that conflicts should be resolved under pre-existing exemptions from antidiscrimination law, but we are not as sanguine about the adequacy of those exemptions.  The state provisions vary greatly, as Carpenter’s post acknowledges; many are unclear and open to interpretation, and some gay-rights proponents will push for the narrowest readings (especially after same-sex marriage is enacted and the religious objectors lose any bargaining power).  To take just one example, during Minnesota's same-sex-marriage debate last May, Professor Carpenter wrote in an op-ed that the exemption in the state antidiscrimination law was "among the most expansive in the country," protecting "religious nonprofit associations and schools"; but within a couple of weeks, Minnesota's Department of Human Rights, which enforces the law, issued guidelines asserting that the provision "does not exempt [among other entities] nonprofits ... based on religious beliefs regarding same-sex marriage."

The members of Carpenter’s group say that they support religious liberty but that the remedy for any threats to it is to amend pre-existing laws.  We would welcome their support for making pre-existing exemptions more secure.  However, their letter to Illinois legislators shows little sympathy to such exemptions for religious organizations outside the immediate context of the wedding: for example, for nonprofit marriage-counseling services or adoption services, even when those services are not publicly funded.  The letter objects that our proposal would allow discrimination “in situations far removed from the marriage celebration” (p. 8), which describes situations like marriage counseling, adoption placements, or a religious college’s married-student housing.  The letter also states that existing Illinois provisions strike “a careful balance between equality and religious liberty” and have “reasonably adjudicated the very few conflicts that had arisen and that might continue to arise” (pp. 4, 6).  But Illinois’ specific statutory protections are narrow and uncertain: for example, as our initial Illinois letter (at 16) describes, one exemption protects a religious organization’s employment of members of its own faith; the other does protect certain preferences by religious organizations in housing, but only preferences for “persons of the same religion,” which does not clearly protect a religious college’s decision to limit married-student housing to opposite-sex married couples.* 

Moreover, we  know, from first-hand experience, that any proposal to strengthen pre-existing exemptions brings the protest that it would go beyond addressing new problems and would "undo existing law."  Carpenter's group says that with respect to religious liberty, traditionalist objectors can do nothing to stop water rushing through a hole in their boat; they have to get a broader agreement to plug every crack.

2.  Carpenter's second point from his group’s letter is that even if new provisions are needed, our proposal is too broad.  This is certainly fair ground for debate, and we welcome discussion about the proper scope of exemptions, as opposed to the unrealistic claim that same-sex marriage doesn't change anything.  Carpenter focuses attention on the most controversial cases, small personal-service businesses and government officials.  But we should not lose sight of the cases that ought to be non-controversial: must a nonprofit evangelical marriage-counseling ministry counsel same-sex couples?  Must a traditionalist Catholic college open its married-student housing to same-sex couples?  Far more often than Carpenter’s group admits, these matters are unclear under the existing state laws that the group says must be the sole vehicle for protection.

With respect to the controversial cases, Carpenter’s statement of our proposal is misleading (and false in saying that we extend exemption to "non-religious objectors"; we do not).  Far from exempting "inns, restaurants, and other businesses" broadly, as he suggests, we limit exceptions in the business world to sole proprietors and very small businesses (five or fewer employees) that provide services directly facilitating the wedding or the marriage—wedding photography, marriage counseling—that would violate their religious beliefs.  We also deny exemption in cases where the couple would have difficulty finding another service provider; in other words, in the case when a religious objection truly conflicts with a couple’s access to services, our proposal says the couple should prevail.  When even a limited exemption like that is rejected, individuals will be driven from their professions, not to ensure that couples have access to services—what couple would seek out a counselor who disapproved of the marriage?—but primarily so the state can express the view that the refusal of service is wrong.  In any event, to return to the main point: concerns about exemptions for commercial objectors do not warrant leaving thousands of non-profit religious organizations subject to the uncertain coverage of existing state exemptions.

Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples."  To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue).  We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other.  We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws.  Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives.  Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people.  But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.

Thomas Berg

Carl Esbeck

Edward Gaffney

Richard Garnett

Douglas Laycock

Bruce Ledewitz

Christopher Lund

Michael Perry

Robin Fretwell Wilson

* UPDATE (Nov. 9, 2013):  This post has been amended, at the point in text marked by the asterisk, to delete quotes from previous scholarly articles written by Professors Marshall and Lupu (members of Professor Carpenter's group), and to add the four sentences immediately preceding the asterisk.  We acknowledge that Marshall has allowed that some legislative accommodations of religion are constitutional, and that Lupu has more recently expressed openness to some exemptions for religious organizations in a same-sex marriage bill.  See, e.g., Lupu and Tuttle, “Same-Sex Family Equality and Religious Freedom,” 5 Northwestern J. of Law & Social Policy 274 (2010).  However, as we explain in the added text, the group letter just submitted in Illinois shows little sympathy for protecting religious organizations other than in the narrow context of the wedding celebration itself—where protection is already guaranteed as a minimum requirement of the Constitution.

Posted by Thomas Berg on November 7, 2013 at 10:42 AM in Berg, Thomas | Permalink