Real Religious Liberty Risks and Misplace Fears

Ruling in favor of Obergefell, the Supreme Court decided that states must issue a marriage license between people of the same sex, legalizing same-sex marriage in all 50 states. In this week's conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.

By: Robin Fretwell Wilson

A sharply divided United States Supreme Court, led by Justice Kennedy, concluded last week that States may not lock same-sex couples out of marriage—provoking calls by religious leaders and others for civil disobedience. While the fight over how marriages are celebrated, recognized or facilitated, particularly by religious organizations and government employees, continues to unfold, it is crucial to parse real concerns from misplaced apprehension. Dissenting “from the court’s ruling,” a collection of 128 religious figures said, “We will not allow the government to coerce or infringe upon the rights of institutions to live by the sacred belief that only men and women can enter into marriage.”

Rev. Bill Owens refuses "absolutely [to] do a gay marriage,” saying that “the new Civil Rights movement…is taking away the Christian's rights.” He calls on pastors to “rise up and be ready to go to jail.”

And what precisely will “get [them] arrested?” They contend that clergy will be forced to solemnize marriages.

This fear has no basis. Churches have the autonomy to decide what marriages they will solemnize, or not solemnize, in their sanctuaries, as Robert Tuttle and Ira Lupu explain.

But there are long range implications for religious liberty, as Chief Justice John Roberts observes. Chief among these is “the Solicitor General[’s] candid[ ] acknowledge[ment] that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage,” as Steven Smith discusses in his post. Douglas Laycock urges that no administration would likely revoke the tax exemption of a religious organization until “gay rights looks like race does today, where you have a handful of crackpots still resisting.”

But whatever the ultimate implications for tax exemption, collisions between same-sex marriage and religious liberty loom in the here and now. Government officials are the canary in the mine.

Lafayette Bishop Michael Jarrell rightly worries about the “conscience problems for...those in public office.” The desire of some not to solemnize or facilitate a marriage when doing so would conflict with their faith will be a live issue in every state that has not addressed it by legislation. Why? The state has a monopoly on marriage, regulating access not only to religious marriage, but civil marriage. Naturally, lesbians and gays will present for licenses. They will ask government officials to solemnize their civil marriages if they do not choose religious ceremonies.

Over the last decade, after the legalization of same-sex marriagestate magistrates and marriage clerks have resigned when told that they must “follow the law, whether [they] agree with it or not.”

Two states, Utah and North Carolina, recently enacted legislation to forestall needless resignation and firing. These states’ contrasting approaches show that it is possible to guarantee the right to marry without firing religious believers—but there are better and worse ways to proceed.

Utah got it right, bypassing the need to side with the rights of gay couples over the interests of long-term employees. In the Utah Compromise, the Utah legislature for the first time made state officials provide a forum of last resort for Utahns to be married. Before that legislation, Utah did not guarantee access to marriage for anyone.

By contrast, within hours of the Obergefell decision, counties in Alabama and elsewhere closed down state offices to solemnizing marriage for everybody.

To shut down access to marriage is to deny the right just granted by the Supreme Court. Just as people of good will were appalled when Orval Faubus stood on the front steps of Arkansas’s Central High School to block black children from entering, we should not tolerate government actors erecting a choke point on the path to marriage. 

But Utah was fundamentally decent not just to those seeking to marry, but also to employees of clerks’ offices, some of whom have been in these jobs long before same-sex marriage was recognized anywhere in the world. The Utah Compromise takes these employees out of the loop entirely. How? The town clerk must put in place a process so that a willing authorized celebrant—which includes religious officials, judges, and others—provides that service to couples in the community. By outsourcing solemnization, Utah guarantees access to marriage to everyone on exactly the same basis and avoids dignitary harms to same-sex couples—all without having to fire employees who adhere to a contrary view of marriage. In Utah, the second-most religious state in America, this win-win vindicates the interests of all Utahns.

Contrast this with North Carolina’s clunky measure, which became law only after the legislature overrode Governor McCrory’s veto. It permits magistrates and marriage registrars to recuse themselves from solemnizing or registering any marriage. Recusal lasts six months.

The problem: religious objectors may invoke the accommodation when the first gay couple presents. And imagine how awful that will be for a couple seeking a license to wed.

North Carolina could have avoided this kind of offense to its citizens and still can by policy. It could have required that officials recuse themselves ex ante in writing, in order to staff around the objectors so that they never come into contact with the public.

Imagine a couple, Steve and Adam, arrive at the marriage office, which has three officials, Faith, Hope, and Charity. Faith has filed a written objection. Hope or Charity can greet the public and farm out work, leaving Faith to perform other official duties, such as issuing subpoenas and taking affidavits, so that she never encounters Steve and Adam. Faith does not receive a pass; she performs other office functions.

Note what does not happen in this scenario: Steve and Adam never wait longer or step into another line. They never know any individual magistrate’s views, including Faith’s. Dignitary harms evaporate when accommodations are invisible.

But even when invisible, many, including Governor McCrory, find it offensive that Faith gets paid by the state but does not do the “whole job,” notwithstanding protections under Title VII of the 1964 Civil Rights Act for religious practice and belief. 

Utah accomplishes solemnization with willing celebrants, avoiding even this more attenuated concern. Approaches that bypass collision, rather than allowing point of service refusal, are more respectful of all. 

The speed with which same-sex marriage has come to the entire country has left the electorate unprepared. But this is not the first time that has happened with same-sex marriage. On the heels of Connecticut’s same-sex marriage decision, the Connecticut legislature enacted religious liberty protections. And North Carolina’s and Utah’s legislation both followed authoritative same-sex marriage decisions in those states. 

If we do not intend to exacerbate this culture war, it is incumbent upon legislatures to resist legislative measures responsive only to religious objectors. Instead, they should seek thoughtful, nuanced approaches that affirm the dignity of both same-sex couples and religious believers.

Robin Wilson is Professor of Law and Law Alumni Faculty Fellow at Washington and Lee University School of Law. 

This piece was originally authored on July 2, 2015 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.

Permanent Link: https://www.religiousfreedominstitute.org/cornerstone/2016/7/14/real-religious-liberty-risks-and-misplace-fears