Religious Liberty, Same-Sex Marriage, and the Coming Pressure on Legislatures to Reach An Appropriate Permissive Accommodation of Religious Entities That Discriminate Against Gay Couples

By MARCI HAMILTON
Thursday, Nov. 01, 2007

Those opposed to same-sex marriage are losing this particular culture war. Indeed, the beginning of the end of the movement to thwart the recognition of gay marriage by the states is unintentionally documented in a recent article in the Harvard Journal of Law and Public Policy, the conservative-leaning journal at Harvard Law School. In that article, Roger Severino, of the Becket Fund, argues that "same-sex marriage threatens religious liberty," which he apparently views as a negative development.

I make the last statement tongue-in-cheek, because it is well-known that the Becket Fund always takes the side of the religious entity. But I also make it quite seriously, because it is perfectly appropriate to weigh the interest in religious liberty against other social interests, such as the interest in enforcing anti-discrimination law. Sometimes, religious liberty and religious entities quite properly lose such public policy battles. Sometimes they don't, and the question is reaching the right balance.

According to Severino, religious liberty may be threatened if same-sex marriage is constitutionally or statutorily-protected as a result of the application of, for example, anti-discrimination laws to employees; fair-housing laws to landlords; and public accommodation laws to places of business. If religious entities refuse to treat same-sex couples equally with heterosexual couples, Severino contends, they may risk their tax- exempt status, risk their government-funded social-service contracts, suffer exclusion from government facilities and fora, and even suffer exclusion from the state function of licensing marriages.

Why should anyone care? Because Severino concedes, as he must, the growing certainty that sexual orientation will be the next "suspect classification" (like race, national origin and gender before it) to receive robust constitutional and statutory protection. In his words, "courts have become increasingly sympathetic to the notion of same-sex marriage as a protected right that may override other constitutionally important concerns." Thus, the conflict is inevitable.

The most important issue, though, is not whether there will be a conflict. There will. It is how state and federal legislatures will (or will not) address these challenges, through permissive religious accommodation.

Why Religious Entities Must Comply with Anti-discrimination Laws That Defy Their Views

The argument for accommodation of religious entities that insist on discriminating goes as follows: If state or federal legislatures recognize homosexuality as the basis for defining a "protected class" and, therefore, require equal treatment of gay couples, those religious entities opposed to homosexuality will find their religiously motivated conduct restrained.

For example, employees of religious entities who are fired for being part of a same-sex marriage might argue in court that they have suffered discrimination on the basis of religion, sexual orientation, sex, and/or marital status. In such an instance, if a religious organization holds as one of its tenets that gay marriage is not appropriate for its employees (or anyone else), then the application of these discrimination laws will be felt by the organization as a threat to religious liberty.

As I have discussed in previous columns such as this one, religious entities have no right under the First Amendment's Religion Clauses to avoid neutral, generally-applicable anti-discrimination laws, unless the case involves employment decisions regarding clergy (though this latter proposition is based solely on lower court cases, as the Supreme Court has never addressed the issue).

Thus, the question is not one of a right to religious freedom that courts will protect; it is one of a decision legislatures might or might not make, viewing the question as a matter of permissive accommodation of religion. And making that decision requires balancing the public interest in favor of eradicating discrimination aimed at gay couples, against the interest of others in religious liberty.

The Coming Battle in Our Legislatures Over Accommodation

Our legislatures, then, are where the battles will be waged. And they will be fought with vigor, because religious entities, especially those opposed to same-sex marriage (e.g., the Roman Catholic Church, evangelical Protestant Christians, and orthodox Jews) are frequent lobbyists. Some have been fighting to place restrictions on abortions for decades, and against gay marriage more recently, so their affiliation with legislators is significant.

Legislators are not infrequently in the position of calibrating the anti-discrimination laws to different types of employers, including religious employers. For example, Title VII only applies to employers of a certain size, and creates an exemption permitting religious entities to discriminate on the basis of religious belief, or religion in religion-related positions.

Here is where a legislature needs to be attuned to the facts: There is a wide array of religiously-denominated entities, and their functions (and therefore the type of regulation that properly suits them) are quite disparate. Let's suppose a given organization has a tie to a religious denomination; that does not finally answer the question whether the anti-discrimination law should apply to or accommodate the religious entity.

For example, the local parish Catholic Church is simply not the same entity as Catholic Charities. The former operates almost exclusively on funds derived from parishioners and the diocese, sponsors religious worship, and operates on the basis of close geographical ties, while the latter receives the vast majority (often over 80%) from state and federal funds, and provides public social services to a wide array of recipients, not defined by religion. Should an organization like Catholic Charities be required to abide by state laws protecting employees, even when those laws may be at odds with the Roman Catholic Church's beliefs? So far, New York and California courts have said, "yes" in the context of laws requiring health plans to include contraception, as I discussed in an earlier column.

In a similar vein, the religious apartment building owner who does not want to rent an apartment to same-sex couples is in a very different position from the homeowner who does not want to rent her basement to a co-habiting same-sex couple. Many may see the former's claim to accommodation as weaker than the latter's.

My point is not to draw the proper boundaries of such accommodation, but rather to simply point out that legislators are not required to treat differently-situated entities the same, even if they can be called "religious" in some sense - and indeed, it may be a mistake to do so. In addition, legislatures do not have to treat permissive accommodation as an all-or-nothing proposition. If they prefer, they can certainly decide, as Congress itself did, that permitting religious entities to discriminate on the basis of religious belief or religion is fine, while permitting discrimination on the basis of gender is not.

Suffice it to say that there is room for debate and compromise in this burgeoning legal landscape. And there is a multiplicity of affected parties, from the couples, to the religious entities, to the children of same-sex couples, to society as a whole. The lobbyists from both sides will play an active role, no doubt.

When Government Privileges Such as Tax Exemptions Are Extended, Strings Historically Have Been Able to Be Attached

The consideration legislatures should offer proposals for permissive accommodation may be different when a privilege provided by government, which always entails some government strings attached, is at stake. Here, I am thinking of the privileges Severino highlights, such as tax exemptions, funding for social services and the like, the use of government facilities and the privilege to perform a marriage not just on behalf of one's religious group, but also on behalf of the state.

There was a time, before the Bush Administration's strong support of faith-based programs, when conservative Christians were actually the loudest opponents of government funding for religious entities, because of the inevitable strings attached and their capacity to restrict liberty. That camp, however, is now split between those who remain opposed, and those who willingly partake in such privileges.

Having to recognize or abide by regulations that recognize constitutional, compelling or important state interests is a typical and legitimate government "string." If a religious entity practices its religion in contravention of the values recognized by government and the larger society, then it may lose the privilege. If so, it is deprived of just that: a privilege. It is not, however, deprived of its constitutional right to exercise its religion.

Those who treat these privileges are entitlements will disagree, but the state of the law is clear: A government privilege is not an entitlement.

In Bob Jones University v. United States, for example, the Supreme Court held that tax-exempt status could be withdrawn if a university receiving federal funds engaged in race-based discrimination, even if the discrimination was rationalized with a connection to religion. This reasoning has not been applied beyond the race context, so there is some reason to doubt that it would be extended to gender or sexual orientation or marital status. Nevertheless, the reasoning was embraced by the Court, and the precedent stands, and is likely to have at least some implications.

Once again, in the course of the gay marriage wars, legislators will now be asked to consider whether to exempt religious entities from the obligations that travel with government privileges. When this occurs, the mere invocation of a religious belief that is at odds with government policy - such as the policy embodied by laws against discrimination on the basis of sexual orientation -- does not, and cannot by itself, determine whether there should be accommodation, or, if so, what its scope should be.

As with all public policy, the right balance will be the result of deliberative and careful weighing of all interests. On the one side is the profound American commitment to religious liberty, subject to John Stuart Mill's rule against harm. On the other, is America's emerging commitment to fair and equal treatment for same-sex couples. Let the policy-making begin.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book is entitled Justice Denied: What America Must Do to Protect Its Children (Cambridge University Press 2008).

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