Marriage Rights and Religious Exemptions in the United States
Abstract and Keywords
After providing background on the law of marriage in the United States, this article examines the numerous religious exemptions—solemnization exemptions, religious-organization exemptions, commercial exemptions, Religious Freedom Restoration Act exemptions, the ministerial-exception exemption, and tax exemptions—that are currently in effect or proposed for American marriage laws. Although these exemptions are usually proposed in the name of religious liberty, over the long run their number, scope, and breadth threaten the religious neutrality that the First Amendment of the U.S. Constitution requires. Solemnization exemptions control which clergy and which government officials are allowed by states to perform marriages. Religious organization exemptions free some institutions from holding marriages they find exceptionable. Commercial exemptions threaten many limits to same-sex marriages. RFRA, ministerial exception, and tax exemptions also pose risks to equal celebration of same and opposite sex marriages.
This article provides background information regarding U.S. marriage law and then focuses on the numerous religious exemptions currently in effect or proposed to these laws, including solemnization exemptions, religious-organization exemptions, commercial exemptions, Religious Freedom Restoration Act (RFRA) exemptions, the ministerial-exception exemption, and tax exemptions. Although these exemptions are usually defended in the name of religious liberty, over the long run their number, scope, and breadth threaten the neutrality required by the U.S. Constitution.
The Law of Marriage
Individual states, not the federal government, determine most of the specific details of marriage law in the United States, with considerable variation from state to state. States establish who may marry (traditionally, a man and a woman), who may not (close relatives, of varying degrees of consanguinity), at what age marriage may take place (e.g., 15, 16, 18, 19, or 21), what legal steps the parties must take to enter marriage, and what legal rights and duties the marital contract entails. Every state requires some official act to establish a marriage and authorizes only a specific group of people to solemnize marriages. (Stevens, 2014; Milne, 2011).
Solemnization laws reflect the unusual combination of religious law and civil law that characterizes American marriage. (Case, 2005). Although religious marriage and civil marriage are two different statuses in some nations, with two different ceremonies, in the United States all state laws authorize both civil and religious authorities to perform civil marriages. (Milne, 2011). Indeed, in many states it is illegal for religious clergy to solemnize a marriage without a valid civil marriage license. (Case, 2005). All states allow some public officials, whether judges, court clerks, or, occasionally, mayors, to perform marriages. The approved religious authorities vary considerably from state to state. For example, six states mention the Spiritual Assembly of the Baha’is. Weddings performed by Universal Life Church (ULC) ministers have been invalidated in three states; only North Carolina authorizes ULC marriages by statute. (Rains, 2010; Milne, 2011). The ULC allows anyone to be ordained online, and encourages applicants to “become a legally-recognized wedding officiant in the space of a couple of minutes for free.” (Universal, 2015). Only Alaska lists a “commissioned officer of the Salvation Army” as a recognized marriage officiant. (Rains, 2010).
The federal Constitution places some restrictions on state marriage laws. The U.S. Supreme Court recognizes marriage as a fundamental right protected by the Due Process Clause of the Fourteenth Amendment. Because marriage is a fundamental right, states may not prevent fathers who have not paid child custody from getting married (Zablocki, 1978). Nor may states allow prisoners to marry only if a prison superintendent decides there are “compelling reasons” to permit the marriage. (Turner, 1987).
The Due Process and Equal Protection Clauses of the Fourteenth Amendment also prohibit state bans on interracial marriage, Loving v. Virginia (1967), and, since 2015, same-sex marriage, Obergefell v. Hodges (2015). Historically, religious beliefs provided substantial justification for the states’ restrictions on both interracial and same-sex marriage. After “Mildred Jeter, a Negro woman, and Richard Loving, a white man” married in the District of Columbia and returned to their home in Virginia, Virginia prosecuted the couple under the state’s anti-miscegenation laws. The trial judge who upheld their conviction, suspended their sentence, and ordered them to stay out of Virginia for twenty-five years, wrote:
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
Similarly, the primary and recurring legal defense of same-sex marriage bans was the argument that all marriages must be procreative, even though, due to age, illness, and reproductive freedom, many heterosexual marriages are not. That procreative ideal of marriage originated with St. Augustine, the fifth-century Christian bishop, who identified three goods that should attend all marriages—procreation, fidelity, and indissolubility. (Griffin, 2015). When “Richard John Baker and James Michael McConnell, both adult male persons” applied for a Minnesota marriage license in 1971, the Supreme Court of Minnesota denied their application on the grounds that the “institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.” (Baker, 1971). On appeal to the U.S. Supreme Court, Minnesota’s legal brief argued for denial of the marriage license because “[o]ur country, and its Constitution, were founded upon basic religious principles and one of the most basic of such principles is that marriage is an institution ordained by God and that such institution is to be entered into by a man and a woman as husband and wife.” (Case, 2005).
In 1972, the Supreme Court dismissed Baker’s appeal “for want of a substantial federal question.” (Baker, 1972). Forty-three years later, the Court overruled Baker and recognized a constitutional right to same-sex marriage in Obergefell v. Hodges. Justice Anthony Kennedy’s Opinion of the Court concluded that sincere religious beliefs must not provide the basis for marriage law:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
Both Loving and Obergefell were decided on due process and equal protection grounds. The due process and equal protection arguments in the two cases were similar, and Loving set an important precedent for Obergefell. The Court ruled that the Lovings and (forty-eight years later) lesbian, gay, bisexual, and transgender (LGBT) couples enjoy a fundamental due process right to marriage (not just to interracial or same-sex marriage). And the Equal Protection Clause prohibited the states from discriminating on the basis of race or sexual orientation.
Loving, however, was unanimous, while Obergefell was a 5–4 decision with three separate dissents. The two cases also differ dramatically on the subject of religious exemptions. (Oleske, 2015). Despite bitter, Bible-based opposition to interracial marriage, the unanimous Loving Court did not even hint at religious exemptions for racial discrimination, and state and federal legislatures did not enact them. In Obergefell, however, four dissenting Justices, in three separate dissents, deplored the impact of marriage equality on religious freedom and advocated religious exemptions from same-sex marriage laws. According to Chief Justice John Roberts, for example:
Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.
Roberts praised state accommodations of religious liberty and warned that the majority did not sufficiently protect religious freedom through religious exemptions.
Justice Clarence Thomas’s dissent cautioned both individuals and churches would be “confronted with demands to participate in and endorse civil marriages between same-sex couples,” and echoed Roberts’s suggestion that the political process should wisely provide exemptions unmentioned by the majority in Obergefell. And Justice Samuel Alito’s dissent rejected the idea that Loving was relevant to same-sex marriage, complaining that opponents of same-sex marriage “risk being labeled as bigots and treated as such by governments, employers, and schools.” Like his fellow dissenters, Alito welcomed the possibility that through the legislative process “some States would tie recognition [of same-sex marriage] to protection for conscience rights,” that is, grant religious exemptions to the marriage laws. (Obergefell, 2015).
The dissenting Justices’ pleas for the legislatures, not the courts, to accommodate religious freedom were the result of the Court’s interpretation of the Free Exercise Clause of the First Amendment in a marriage case, Reynolds v. United States (1878). George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints, argued that the government should exempt him from prosecution for bigamy because of his religious duty as a male Mormon to practice polygamy. The Court rejected Reynolds’s argument, reasoning that “[t]o permit this [exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Quoting Reynolds in 1990, the Supreme Court similarly ruled in Employment Division v. Smith that the Free Exercise Clause does not mandate the courts to grant religious exemptions from neutral laws of general applicability.
Under Reynolds and Smith, however, legislatures remain free (within some constitutional limits) to create statutory exemptions for religious believers. Since 1990, many religious believers have effectively used the political process to gain numerous exemptions from obeying laws. Marriage law, in particular, became a central target for religious exemptions after 2003, when Massachusetts became the first state to legalize same-sex marriage. Same-sex marriage opponents’ exemption quest intensified dramatically post-Obergefell’s requirement that all states permit same-sex marriage. Since then, many believers across the United States have demanded exemptions entitling them to refuse governmental, professional, commercial, and religious services to LGBT couples.
Because state laws authorize both clergy and public officials to perform valid civil marriages, the initial exemption debates focused on allowing both groups to refuse the solemnization of LGBT weddings. That topic is examined in the next section. The exemption debate later evolved into requests for religious-organization exemptions, commercial exemptions, RFRA exemptions, the ministerial-exception exemption, and tax exemptions, which are treated later in this article.
The Solemnization Exemptions
Many commentators and Supreme Court Justices accept the “conventional wisdom” that clergy enjoy a First Amendment right not to participate in weddings. (Lupu & Tuttle 2010). The First Amendment prohibits the state from adjudicating intraecclesial theological disputes and selecting churches’ ministers; thus the government would violate fundamental constitutional values if it ordered clergy to perform religious marriages. Yet in theory (however unlikely), it is possible that “the government could treat the celebration of civil marriage as a public accommodation, and prohibit discrimination by providers of that service. Or, the government could impose a condition on its grant of the authority to solemnize marriages, requiring the celebrant to be willing to serve all couples.” (Lupu & Tuttle 2010). Fear of such governmental requirements prompted some state legislatures to authorize solemnization exemptions for clergy.
The constitutional question about forcing clergy to perform marriages arose during the oral argument in Obergefell, when Justice Antonin Scalia, who later dissented from the same-sex marriage ruling, asked the LGBT couples’ lawyer: “[Do] you agree that ministers will not have to conduct same-sex marriages?” Lawyer Mary Bonauto quickly responded that ministers enjoy a First Amendment right to refuse to perform marriages: “If one thing is firm, and I believe it is firm, that under the First Amendment, that a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.” Justice Elena Kagan chimed in her support to Bonauto, noting that rabbis are not required to conduct marriages between Jews and non-Jews, even though religious discrimination is illegal. Justice Stephen Breyer quickly quoted the Free Exercise Clause to buttress Kagan’s comment and Bonauto’s response. (Oral, 2015).
Yet Justice Scalia persisted with his questioning, arguing: “He’s not being required to officiate. He’s just not given the State’s power, unless he agrees to use that power in accordance with the Constitution. It doesn’t seem to me you have to make that exception. You can’t appoint people who will then go ahead and violate the Constitution.” After Bonauto mentioned that states could exempt clergy from performing same-sex marriage by statute, Scalia pressed the point that if the Court found a constitutional right to same-sex marriage, there might not be sufficient exemptions for all dissenting ministers. (Oral, 2015). Scalia’s questioning was consistent with the Obergefell dissenters’ later argument that same-sex marriage laws must be balanced by religious exemptions.
The oral argument reflected the law as it developed in the states pre-Obergefell. The first states to legalize same-sex marriage—Massachusetts, Connecticut, California, and Iowa—did so by state court rulings that same-sex marriage bans were unconstitutional. Consistent with federal jurisprudence on free exercise rights, those courts did not create religious exemptions to marriage equality. Exemptions are a job for the legislature. (Wilson, 2014a).
In 2009, New Hampshire was the first state to legalize same-sex marriage by statute. Pre-Obergefell, New Hampshire, followed by Maryland, Rhode Island, Minnesota, Connecticut, the District of Columbia, New York, Washington, Vermont, Hawaii, Illinois, Delaware, and Wyoming, exempted clergy from the duty to solemnize marriages. In the District of Columbia, for example, “[n]o priest, minister, imam, or rabbi of any religious denomination and no official of any nonprofit religious organization authorized to solemnize marriages … shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the First Amendment of the United States Constitution.” (Wilson, 2014a; Lupu & Tuttle 2010). Shortly after Obergefell required all states to legalize same-sex marriage, North Carolina, Florida, and Texas passed similar “Pastor Protection Acts,” and Louisiana’s and Kansas’s governors authorized similar clergy-protective measures by executive order.
Although the statutory language was probably not necessary, more states might pass similar legislation now that same-sex marriage is the law of the United States. At the beginning of the marriage equality debate, the threat of ministers being forced into LGBT solemnizations was frequently a scare tactic voiced in opposition to same-sex marriage’s legalization. As the debate progressed, state legislatures often compromised between religious liberty and same-sex marriage proponents by including clergy exemptions in their pro-same-sex marriage statutes. Post-Obergefell, some states responded to an unpopular Court decision by passing Pastor Protection Acts to demonstrate that they support religious freedom rather than marriage equality.
With the belt and suspenders of both constitutional and statutory protection of freedom to refuse religious marriage ceremonies, clergy exemptions can be expected to be part of marriage law for some time. Exemptions for government officials are much more controversial.
Government Official Exemptions
Government officials are usually expected to do their jobs. After the Massachusetts and Iowa Supreme Courts required same-sex marriage, their state legal officials told the justices of the peace and county recorders who perform marriages that they must “follow the law, whether you agree with it or not.” (Wilson, 2010). As Iowa’s attorney general explained, “We don’t each get to decide what the law is; that would lead to chaos. We must live by and follow what the courts decide.” (Wilson, 2014a). The choice for marriage clerks in those states was either to perform marriages or to be fined, penalized, or fired for disobedience.
Even post-Obergefell, only Louisiana, North Carolina, and Utah enacted protections exempting government officials from performing or assisting with same-sex marriage ceremonies. This low number of states confirms the conventional legal argument that government officials are expected to enforce even those laws they find objectionable. Plus the Establishment Clause of the First Amendment requires state governments to be religiously neutral. Allowing state officials to impose their religious beliefs on citizens prefers some marriage applicants to others based on the clerk’s personal religion, which violates the neutral government that the First Amendment demands. The government is also bound by the Equal Protection Clause of the Fourteenth Amendment, which requires marriage applicants be treated equally, without the odious discrimination against gay and lesbian couples that a license denial involves. (Oleske, 2015; Underkuffler, 2011).
Nonetheless, Kentucky county clerk Kim Davis, an Apostolic Christian, achieved great fame or notoriety after she refused to issue same-sex marriage licenses as a matter of personal conscience and religious liberty. Alabama Supreme Court Chief Justice Roy Moore was suspending from his court position after ordering state probate judges not to issue same-sex marriage licenses in Alabama.
Davis’s “far-reaching position” was that religious freedom also allowed her to block other clerks in her office from issuing licenses to LGBT couples. (Heyman, 2015). A Kentucky federal district court rejected Davis’s free exercise claim and ordered Davis to issue the licenses. (Miller, 2015). But Davis won a partial victory after Kentucky Governor Matt Bevin issued an executive order removing county clerks’ names from all state marriage licenses. (Heyman, 2015). And Chief Justice Moore faced a disciplinary hearing for judicial misconduct after the Alabama Judicial Inquiry Commission ruled that his order violated the canons of judicial ethics. (Lyman, 2016).
Some scholars have suggested that government officials can be accommodated, but not completely exempted, from the marriage laws. “In other words, when another willing clerk would gladly perform the necessary task for a same-sex couple, it is incumbent upon a pluralistic liberal democracy to avoid forcing a needless choice between one’s beliefs and one’s livelihood. In the case where another willing clerk is not available, however, the employee’s religious objection must yield because the state has granted same-sex couples the right to marry.” (Wilson, 2010). Such accommodations reflect the perspective that the best way to protect both religious liberty and same-sex marriage is through legislative compromise that exempts religious opponents of same-sex marriage from interactions with marriages they oppose.
Constitutional commitments to government neutrality and citizen equality undermine the case for government-official accommodations. “In our history, religious claims were made about the right to discriminate against women, the right to discriminate against blacks, the right to discriminate against Catholics and Jews, and the right to discriminate against every foreign group that was, at the moment, the object of prejudice. The mere fact that the religious objector loses to the state norm has never justified the norm’s abandonment.” (Underkuffler, 2011). And the government official’s religious liberty claim is overstated. After a clerk like Kim Davis “issues a gay or lesbian couple a marriage license, she can still worship, she can still read her Bible, she can still believe that her selective spin on God’s teachings is true and other peoples’ is false, she can still hate the air that gays and lesbians breathe. In short, issuing a marriage license in accordance with the law does not affect her Constitutional right to freely exercise her religion in the least. Not one iota.” (Nelson, 2015).
The states’ responses to Obergefell suggest the debate about government marriage clerks and religious exemptions has only just begun. Further litigation and legislative action can be expected to resolve the constitutionality of government exemptions. Meanwhile, proposed religious-organization exemptions test the boundaries of the right of religious freedom advocates to restrict LGBT rights.
Throughout the same-sex marriage debate, religious organizations argued in state legislatures for the broad marriage conscience exemptions available to clergy. Religious organizations include nonprofit schools, universities, hospitals, social service providers, and faith-based adoption agencies. These organizations often receive state funding and tax benefits, and frequently employ individuals who do not share their faith.
At first glance, the religious-organization exemptions seem equivalent to the clergy exemptions, allowing, for example, both a Catholic priest to refuse to celebrate a marriage and a Catholic university to deny use of its campus chapel for wedding ceremonies. But the pervasiveness of religious organizations and their many public roles complicate their exemption situation. For example, in an early New Jersey case, several lesbian couples applied to rent the Ocean Grove Boardwalk Pavilion for their civil union ceremony. The Ocean Grove Camp Meeting Association of the United Methodist Church (CMA), which owns all the seaside land in Ocean Grove, refused the rental because of its religious opposition to same-sex marriage. Ocean Grove, however, had received public funding and a tax exemption and given a promise to keep the land open to the public. (Ocean, 2007). Thus the couples successfully sued CMA for civil union discrimination under New Jersey’s Law Against Discrimination because the pavilion was a public accommodation. (Ocean, 2007). Thus a religious organization may easily lose its religious freedom claim if it “convert[s] its space or service into a public accommodation by opening it to the general public or engaging in commercial activity rather than maintaining it for distinctly private use.” (Nejaime, 2012).
A legislative exemption, however, can liberate a religious organization from public accommodation status and antidiscrimination laws. Most states’ same-sex marriage laws exempted many religious organizations from any connection with wedding ceremonies. Connecticut, for example, decided that religious organizations “shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith.” (Lupu & Tuttle 2010). In New York, same-sex marriage legislation failed until a legislative compromise provided that religious organizations could not be penalized through lawsuit or loss of funding for refusal to “provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.” (Gulino, 2012).
A patchwork of such religious-organization exemptions exists across the states. Eleven states joined Connecticut and New York in excusing religious organizations from providing services in connection with wedding solemnizations. But Connecticut denies the exemption if the organization receives state funding, and Minnesota if it performs secular business activities. Four states allow religious employers to refuse insurance to LGBT spouses. “Five jurisdictions expressly say religious organizations need not promote same-sex marriage through religious counseling or retreats. Three extend this to married-couple housing.” (Wilson, 2014a).
Faith-based adoption agencies particularly illustrate the scope of disagreement about religious-organization exemptions. Catholic Charities, a large Roman Catholic social services agency, ended adoption services in Massachusetts after state law required all adoption agencies to place children with same-sex couples. In contrast, Connecticut, Maryland, and Minnesota allow non-publicly funded religious adoption agencies to deny same-sex placements, and Rhode Island allows heterosexual-only placement even with public funding. (Wilson, 2014a). These conflicting state laws reflect a substantive disagreement whether it is more important to keep religious organizations in the adoption business, no matter their standards, or to ensure that all adoption providers treat heterosexual and LGBT families equally.
While the states debated religious-organization exemptions, a group of prominent law professors lobbied them to adopt a Model Conscience Protection Act with the following broad range of exemptions for all types of religious associations:
(a) Religious organizations protected.
Notwithstanding any other provision of law, no religious corporation, association, educational institution, society, charity, or fraternal organization, and no individual employed by any of the foregoing organizations, while acting in the scope of that employment, shall be required to
(1) provide services, accommodations, advantages, facilities, goods, or privileges for a purpose related to the solemnization or celebration of any marriage; or
(2) solemnize any marriage; or
(3) treat as valid any marriage
if such providing, solemnizing, or treating as valid would cause such organizations or individuals to violate their sincerely held religious beliefs….
(c) No civil cause of action or other penalties.
No refusal to provide services, accommodations, advantages, facilities, goods, or privileges protected by this section shall
(1) create any civil claim or cause of action; or
(2) result in any action by the State or any of its subdivisions to penalize or withhold benefits from any protected entity or individual, under any laws of this State or its subdivisions, including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status. (Wilson, 2010).
Two sections of this proposal were especially far-reaching. First, the “treat as valid any marriage” language of Section (a)(3) applies broadly “far outside the marriage [ceremony] context and permit[s] discrimination against same-sex couples throughout the life of their (marital) relationships,” (Nejaime, 2012), ranging “from food and shelter to healthcare and legal representation.” (Oleske, 2015). Second, Section (c) not only prohibits LGBT couples from suing organizations under the antidiscrimination laws but also forbids any government penalties “including but not limited to laws regarding employment discrimination, housing, public accommodations, educational institutions, licensing, government contracts or grants, or tax-exempt status.”
The Model Conscience Protection Act also recommended broad commercial exemptions for businesses, as the following section explains.
Commercial exemptions pose a serious threat to LGBT marriage equality because they reach into multiple aspects of life. Commercial vendors provide cakes, dresses, flowers, food, photographs, venues, and many more items and services to LGBT couples. In two early commercial-exemption court cases, the New Mexico Supreme Court ruled that a photographer who refused to take pictures at a same-sex commitment ceremony enjoyed no free speech or free exercise rights to discriminate on the basis of sexual orientation, (Elane, 2014), and the Colorado Civil Rights Commission held that bakery owners possessed no free exercise or free speech rights to refuse wedding cakes to same-sex couples. (Craig, 2016).
Statutory exemptions could terminate similar lawsuits in the District of Columbia and twenty-one states that outlaw sexual orientation discrimination. The original Model Conscience Protection Act demanded such a result with its language: “no refusal to provide services, accommodations, advantages, facilities, goods, or privileges … shall create any civil claim or cause of action.” After Minnesota and Washington State rejected such broad protection for businesses, (Oleske, 2015), the law professors amended the Model Act to cover only an “individual, sole proprietor, or small business [i.e., one with five or fewer employees or rental housing units]”:
(b) Individuals and small businesses protected.
(1) Except as provided in paragraph (b)(2), no individual, sole proprietor, or small business shall be required
(A) to provide goods or services that assist or promote the solemnization or celebration of any marriage, or provide counseling or other services that directly facilitate the perpetuation of any marriage; or
(B) to provide benefits to any spouse of an employee; or
(C) to provide housing to any married couple if providing such goods, services, benefits, or housing would cause such individuals or sole proprietors, or owners of such small businesses, to violate their sincerely held religious beliefs. (Wilson, 2010).
But the proposal for small businesses’ religious freedom was not absolute; no exemption was available if couples were “unable to obtain any similar good or services, employment benefits, or housing elsewhere without substantial hardship.” This hardship rule corresponded to the earlier suggestion that government employees should also be exempt from marriage duties unless “another government employee or official is not promptly available and willing to provide the requested government service without inconvenience or delay.” (Wilson, 2010).
The premise of such “live and let live” exemption proposals is the belief that the state should protect both religious and LGBT identity “to the maximum extent possible” by restricting the religious business owner only “where the couple would face substantial hardship because no other provider is available.” (Heyman, 2015). Yet these proposals, just like religious-organization exemptions, apply to same-sex couples throughout their lives, transforming marriage into an excuse to avoid the sexual orientation discrimination laws. Over the long run, such commercial exemptions “would in fact cut back on general sexual orientation nondiscrimination principles and threaten progress made in antidiscrimination law.” (Nejaime, 2012). Gays and lesbians would be forced to occupy a “separate but equal” zone (Heyman, 2015) that would be unacceptable for African Americans, women, and the divorced under the Constitution’s Equal Protection Clause guarantees.
Although many Americans had religious objections to interracial marriage in the 1960s, and although some still do today, federal and state antidiscrimination laws have never included exemptions that would allow business owners to deny services based on those beliefs. Likewise, although the New Testament quotes Jesus explicitly condemning divorce and remarriage as adultery, and although such remarriages violate the current teachings of the largest Christian denomination in America, state laws prohibiting discrimination based on marital status do not contain exemptions allowing commercial businesses to refuse to facilitate the remarriages of divorced people. Only after same-sex couples were allowed to marry was there an effort to allow business owners to discriminate for religious reasons, and such an “unusual deviation from the usual tradition” would appear to be “strong evidence” … of an unconstitutional intent “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”
Post-Obergefell, only Louisiana has exempted for-profit businesses from serving customers through a specific statutory marriage exemption. Instead, several states have considered using their general religious freedom statutes (so-called RFRAs) to accomplish the same goal, as the next section explains.
In 1990, the Supreme Court confirmed that the Free Exercise Clause does not exempt citizens from obeying neutral laws of general applicability. (Employment, 1990). In response, a large coalition of religious groups lobbied Congress for a broad exemption statute and received the Religious Freedom Restoration Act (RFRA), which authorizes religious believers to challenge all neutral laws of general applicability. If a law “substantially burdens” a believer’s exercise of religion, RFRA requires the government to demonstrate that it used the least restrictive means to achieve a compelling governmental interest. The least restrictive means/compelling governmental interest standard is the hardest test to meet in constitutional law. (Hamilton, 2014). While RFRA applies only to the federal government, twenty-one states have similar state RFRAs on the books.
New Mexico’s RFRA (NMRFRA) gave Elane Photography an additional legal argument (to free speech and free exercise) after owner Elaine Huguenin refused to photograph a same-sex commitment ceremony. The New Mexico Supreme Court ruled that NMRFRA did not apply to a lawsuit between private parties (namely, the photographer and the lesbian couple) because the explicit language of the statute (a “government agency shall not restrict a person’s free exercise of religion”) demonstrated that the “[l]egislature contemplated that the statute would apply only to legal actions in which the government was a party.” (Elane, 2014, emphasis added).
But legislation can be redrafted. In December 2015, two New Mexico legislators introduced House Bill 55 to amend NMRFRA to exempt all state businesses from sexual orientation discrimination laws and to apply NMRFRA to lawsuits between private parties. The unsuccessful amendment would have shielded businesses like Elane Photography from serving LGBT customers. An Indiana RFRA (IRFRA) also protected all businesses and applied in lawsuits between private parties. Ironically, numerous business and sports leaders—the NCAA, based in Indianapolis; Jim Irsay, owner of the Indianapolis Colts; Tim Cook, CEO of Apple; as well as NBA and NFL spokespersons—criticized the business exemption and threatened to move their companies and teams from Indiana. Other states followed Indiana’s lead with similar upheaval in their religious, business, and LGBT communities.
Vociferous debates about RFRA exemptions to the antidiscrimination laws can be expected to continue indefinitely as same-sex marriage opponents adjust to Obergefell.
The Ministerial-Exception Exemption and Tax Exemptions
Religious nonprofit organizations already enjoy two less controversial exemptions than RFRAs. The “ministerial exception” to the First Amendment provides an unexpected marriage exemption that now threatens LGBT employees of religious institutions who are fired because they are gay.
The Supreme Court held in Hosanna-Tabor v. EEOC (2012) that the Religion Clauses of the First Amendment prohibit courts from adjudicating some antidiscrimination lawsuits by ministers against their employers. (Hosanna, 2012). The Court emphasized that the definition of “minister” is a question of fact to be determined case by case. Many religious institutions assert the ministerial exception as a defense to sexual orientation discrimination lawsuits after firing their married LGBT employees. Fontbonne Academy, a Massachusetts Catholic school for girls, unsuccessfully pleaded that its new food services director, Matthew Barrett, was a minister when it withdrew his job offer after Barrett listed his male spouse as an emergency contact. A Massachusetts court ruled that the firing violated the state’s antidiscrimination laws. (Barrett, 2015). Other plaintiffs, though, especially schoolteachers, have been less successful in overcoming the ministerial defense.
The ministerial exception is a potent weapon for employers. Many religious institutions want to fire LGBT employees, whose sexual orientation is more obvious now that they enjoy the constitutional right to marry. Three years post-Hosanna-Tabor, state and federal courts have only just begun to identify the contours of who qualifies as a minister. Thus ministerial employees may find their constitutional right to marry overridden by the First Amendment while their employers discriminate with tax-exempt status.
Chief Justice Roberts warned in the Obergefell dissent that “the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage … Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.” (Obergefell, 2015). Yet post-Obergefell, the IRS commissioner quickly repudiated the idea that the federal government would amend the tax code to deny exemptions to institutions that discriminate on the basis of sexual orientation.
The commissioner’s inaction confirms that same-sex and interracial marriage receive disparate treatment. During the 1970s, the IRS denied tax-exempt status to Bob Jones University because of its racially discriminatory policies. Bob Jones did not admit students who were interracially married or dating or who espoused such relationships. The Supreme Court unanimously rejected the university’s free exercise challenge. Even dissenting Justice William Rehnquist agreed that the First Amendment was not infringed because the government’s interest in preventing discrimination outweighed the schools’ free exercise. (Bob Jones, 1983). Yet the selective tax exemption today reinforces the concern that through marriage exemption gays and lesbians will be forced to occupy a “separate but equal” zone funded by the government. (Heyman, 2015).
The recent focus on LGBT marriage has confounded the general laws of marriage. Although same-sex marriage is the impetus for most marriage conscience clauses, the exemption statutes usually refer to “marriage.” Perhaps “a Muslim florist could refuse to sell flowers to participants in a Jewish wedding; a caterer could refuse to provide services because the cleric officiating is a woman”; “a marriage registrar could refuse to issue a license to an interracial couple on the basis of their race; a hotel owner or landlord could refuse to let a room to an interfaith, Jewish or Catholic couple because of their religion; or a doctor could refuse to provide medical or counseling services to an individual or couple on the basis of a marital partner’s national origin.” (Flynn, 2010), (Underkuffler, 2011).
Such prospects undermine the long-term legality and practicality of marriage exemptions, as the next section argues.
The Constitution: Equality, Liberty, Neutrality
Marriage equality or religious liberty? Equal protection or free exercise? Lawyers disagree about which constitutional values should govern the marriage exemption debate. (Stern, 2010). Equality’s advocates support the same marriage law for everyone. Liberty’s champions favor exemptions that protect religious freedom to disobey objectionable laws.
Neutrality should resolve the equality versus liberty debate. Unfortunately, it has not.
Both equal protection and free exercise jurisprudence require laws to be neutral, that is, not targeted with animus at any individual or group. (Obergefell, 2015; Employment, 1990). Current same-sex-marriage-inclusive laws are neutral under both equal protection and free exercise principles. Yet the expansion of the statutory-exemption regime—with its patchwork of arbitrary exemptions—threatens the neutral constitutional order. Antidiscrimination laws falter if significant portions of the U.S. population are exempt from their enforcement. Such exemptions “permit every citizen to become a law unto himself” and undermine the rule of law. (Employment, 1990).
Both Loving and Obergefell rejected Christianity-based marriage laws that accepted racial separation and heterosexual normativity as the ideal for every marriage. Yet religious exemptions threaten to re-establish religious marriage law by undermining the neutral marriage law that governs everyone equally. In 2016, the popularity of religious exemptions in state and federal legislatures, combined with the Supreme Court’s religion-friendly jurisprudence that upholds many of these exemptions (Burwell, 2014), suggest the neutral law of marriage will continue to erode.
The constitutional right to same-sex marriage arrived faster than almost anyone expected, with vast changes in public opinion about same-sex marriage’s acceptability. Only time will tell if general acceptance of neutral marriage laws will eventually cause citizens to rethink the exemption regime and embrace the idea that only neutral laws that apply to everyone can protect equality and liberty.
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