Thursday, December 17, 2015
Here's a guest-post from Prof. Carl Esbeck, a law-and-religion expert and the R.B. Price Professor of Law Emeritus at the University of Missouri:
North Carolina suit challenges constitutionality of religious exemption for conscientious objectors
By Carl H. Esbeck
On December 9th six state taxpayers in North Carolina filed a lawsuit in federal district court challenging the constitutionality of state legislation enacted to bring relief to magistrates and county clerks in the wake of Obergefell v. Hodges. When the North Carolina Administrative Office of the Courts ruled that magistrates could not avoid conducting a same-sex marriage by declining to officiate at any and all marriages, there were at least 32 resignations with the explanation that the magistrates’ religious beliefs did not permit them to perform same-sex marriages. The legislature responded with the passage of Senate Bill 2, permitting magistrates to decline for reasons of faith to solemnize any marriage, as well as to ensure that same-sex couples have a ready alternate who will perform the civil ceremony. The statutory accommodation extends to assistant and deputy clerks who have duties that entail the issuance of marriage licenses.
Senate Bill 2 further allows for reinstatement of those magistrates that had resigned, and to do so without any loss of employment benefits due to their break in service. It is the latter expenditure of tax funds, along with any added costs in providing an alternate judicial official to perform a marriage ceremony, which presumably gives rise to plaintiffs’ claimed taxpayer standing.
The Complaint [Download North Carolina complaint] is oddly composed. Early on, and with rising indignation, the pleading avers that after Obergefell obedience to a magistrate’s oath of office, entailing—as judicial oaths routinely do—upholding of the state and federal constitutions, requires that a magistrate marry same-sex couples. But Obergefell held that same-sex couples have the same right to marry as is enjoyed by opposite-sex couples, not that the couple has a right to be married by a particular person or government official. Moreover, the putative violation of a state judicial oath is a state law matter. Any duties thought to be attendant to a state oath can be modified by the North Carolina legislature, and that’s just what happened with the passage of Senate Bill 2. In any event, such state law issues should be of no concern to a federal court not sitting in diversity.
Getting to the merits will require that the plaintiffs first establish federal subject matter jurisdiction, which is here based on taxpayer standing, a jurisdictional claim much diminished from its Golden Age under Flast v. Cohen (1968). Even in the heady days of Flast, taxpayer standing was never permitted except to entertain a claim under the Establishment Clause. With the Supreme Court’s most recent pronouncement in Arizona Christian Sch. Tuition Org. v. Winn (2011), taxpayer standing is available only to challenge the expenditure of tax monies that were first “extracted” from, among others, plaintiff-taxpayers, and paid into the state treasury from which the legislature is now said to be “spending” money alleged to be in “aid of religion.”
The twenty-page Complaint finally gets serious about stating a federal question on page 14 by proceeding to set out three counts, each claiming that Senate Bill 2 undermines Obergefell. The first count alleges that the exemption for conscientious objectors violates the Establishment Clause. However, in an unbroken line of six cases the U.S. Supreme Court has without exception rejected the claim that a religious exemption to a generally applicable law is a religious establishment. The leading case is Corp. of the Presiding Bishop v. Amos (1987), unanimously upholding the religious employer exemption in Title VII of the ’64 Civil Rights Act. The Amos Court reasoned that for Congress to leave religion alone, even as others are regulated, is not to establishment a religion. The other exemption cases are Cutter (2005), Gillette (1971), Walz (1970), Zorach (1952), and Arver (1918). Further, any unintended harm that befalls third parties as a result of the exemption has never altered the Court’s analysis. See Amos and Zorach, where others were inconvenienced by the religious accommodation.
A religious exemption is not to be confused with a naked religious preference. When government, without more, sets out to prefer a particular religious observance, the Establishment Clause is properly implicated. Examples of such a bald preference are found in Caldor (1985), with its unyielding preference for Sabbath observance, and Larkin (1982), with its unguided veto authority vested in churches over the obtaining of a license by nearby businesses. Senate Bill 2, however, is a religious exemption from the general duty imposed on magistrates in North Carolina to solemnize any and all marriages when requested, not a free-standing preference for a religious practice. Finally, it is true that in Larson v. Valente (1982) the Court held that there is an establishment violation when a state sets out to advance a particular religious viewpoint over others, but Senate Bill 2 simply permits recusal by a magistrate as to any couple seeking to marry and to do so without regard to the viewpoint of the magistrate’s religious belief.
The Equal Protection Clause count alleges that plaintiffs, as gay and lesbian individuals, may in future have to appear before a reinstated magistrate, thus being subject to a judicial officer that allegedly harbors prejudice. Speculation as to such possible future harm is not ripe for review. Of more interest is that on its face, the Complaint presumes that a magistrate as a conscientious objector to same-sex marriage harbors religious prejudice against gays and lesbians such that he or she cannot perform the judicial task of equal justice under the rule of law. Such a presumption, if categorical, is tantamount to imposing a religious test for holding a public office, a criteria clearly prohibited by the U.S. Constitution. See McDaniel v. Paty (1978).
The third count, invoking the Due Process Clause, is a variant of the second, again speculating about future harm from a reinstated magistrate harboring prejudices that deny plaintiffs equal treatment. Once again, the case is neither ripe for review nor is there taxpayer standing apart from claims under the establishment clause. But on the merits, Obergefell established the fundamental right to marry for same-sex couples same as opposite-sex couples, but the right does not extend to a couple being able to demand that the ceremony be performed by a particular person or judicial official. A state retains authority to arrange the many duties of its judicial officers so that they might reasonably be available for the performance inter alia of a civil marriage ceremony, but retains discretion to accommodate the religious conscience of some so long as alternate personnel are provided with all deliberate speed and convenience.
Writing for the Court in Zorach v. Clausen (1952), Justice William O. Douglas observed that when government cooperates with its religious citizens “by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions.” It is just good manners in the face of such differences to “live and let live.” Why not, Plaintiffs, just bask in the glow of your win in Obergefell? But the cause these Plaintiffs carry here is that even such a minimal accommodation for those with whom they are in genuine disagreement, must be unconstitutional. Sigh …….