(This post is from 2013; here is an updated post for 2014)
With all the media attention at the time the U.S. Supreme Court heard the Prop. 8 and DOMA cases, it would be easy to believe that the fate of same-sex marriage rests in the hands of the Court. But anyone who has followed the Roberts court, or just read or listened to the oral arguments in these cases, could probably tell you that the Court just has a thumb on this issue at best.
Predicting Supreme Court decisions can be a hazardous venture, but one comparatively safe bet is that neither side will achieve a sweeping victory—the liberal justices seemed reluctant to mandate marriage equality across the board, and the conservative justices seemed reluctant to take the issue out of the hands of democratic processes, noting the considerable political traction marriage equality has gained over the last decade. Since both cases presented unique standing issues, the Court could decline to decide either issue on its merits; Justice Kennedy, the usual swing-voter, seemed especially skeptical of the Court’s involvement. And the biggest potential victory for marriage equality—a decision in the Prop. 8 case based on the Equal Protection Clause—caused concerns even for Justice Breyer, who seemed to want to invalidate Prop. 8, but faced difficulty coming up with a logically coherent approach that would limit the decision to only California.
I would posit that the mostly likely outcome is a mixed, minor victory for each side – such as finding the contested section of DOMA unconstitutional on federalism grounds (victory for gay rights), but declining to decide the Prop. 8 issue, largely leaving states free to define marriage as they wish (victory for gay rights in California, victory for traditional marriage in conservative states). This type of “mixed victory” would result in more rights for same-sex couples in states already allowing gay marriage, and would serve as sort of a tacit approval of the federal government for marriage equality movements in other states. Yet states with prohibitions against same-sex marriage would be allowed to keep them, and changes in the near future would likely occur through the individual states’ democratic institutions.
So states will probably continue to have some room to tinker with recognition of same-sex couples. One issue that will continue to arise is that of religious freedom—namely, the right to refuse to facilitate gay marriages based on religious convictions. Interestingly, the topic of religion was not mentioned a single time in the oral arguments before the Supreme Court; yet religious freedom arguments are among the most common objections to hear at the state and local level, as was the case when Colorado enacted a civil unions law without certain religious exemptions.
Solemnization Exemptions
The laws in all ten of the full marriage jurisdictions plus all six civil union states explicitly exempt clergy from solemnizing marriages in violation of their faith and shield them from civil causes of action. These clergy exemptions are noncontroversial, as the alternative would be a clear intrusion of the government into religion.
Of the seven states with pending marriage-equality bills, only two do not contain such an explicit exemption from solemnization–Texas’ and Arizona’s (interestingly, the civil unions bill in Arizona does). This is probably just a product of the bills’ low likelihood of enactment – not only would the legislatures have to pass the laws and avoid a gubernatorial veto, each of these bills is void unless the states’ citizens also vote to repeal their constitutional amendments banning same-sex marriage. If a bill is largely symbolic, it doesn’t have to be as neatly hammered out.
So the clergy do not have to worry about performing gay wedding ceremonies if they don’t want to. The issue becomes more muddled, however, when you look beyond the solemnization to all the other services attendant to a wedding ceremony.
Other Participation Exemptions for Religious Organizations
Nine of the sixteen jurisdictions recognizing same-sex relationships also statutorily exempt religious organizations from offering facilities, services, or goods to be used in same-sex ceremonies (and at least two of the remaining states’ judicial case law provide the same). While the exact details vary from state to state, these exemptions generally apply to churches, synagogues, mosques, etc. and religious-based charities and non-profits.
Disputes have primarily arisen when the line between “religious organization” and “public facility” is blurry. An example often cited by religious freedom advocates comes from a New Jersey case, Bernstein v. Ocean Grove Camp Meeting Association (OGCMA), in which a lesbian couple was denied use of a pavilion for their civil union commitment ceremony by a Methodist-affiliated organization. The couple then sued the organization under the state’s Law Against Discrimination.
Same-sex marriage opponents paint a picture of a church having to open its place of worship to an unholy gay wedding ceremony, but the truth is a bit more nuanced. The pavilion the lesbian couple were denied was otherwise was considered a place of public accommodation–it could be reserved by either religious or secular groups for a small fee, and was open to the public when not reserved. Moreover, the OGCMA chose to enjoy certain property tax benefits based on the fact that they held pavilion out as a place of public accommodation, not just a place of worship.
In spite of the attention cases like this have drawn, only three of the seven pending marriage bills (in Hawaii, Illinois, and Minnesota) contain this type of exemption. Even more interestingly, all three of them directly address an OGCMA-type situation, but appear to agree with the OGCMA decision – for example, Minnesota’s religious freedom clause states: “This clause shall not apply to secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized.” Hawaii’s religious freedom clause more specific, albeit wordier:
(a) A religious organization shall not be required to make a religious facility owned or leased by the religious organization available for solemnization of a particular marriage; provided that:
1) The religious facility is regularly used by the religious organization for its religious purposes;
2) For solemnization of marriages pursuant to theis chapter, the religious organization restricts use of the religious facility to its members; and
3) The religious organization does not operate the religious facility as a for profit business.
(b) A religious organization that refuses to make a religious facility available for solemnization of a marriage under subsection (a) shall not be subject to any fine, penalty, or civil liability for the refusal.
(c) Nothing in this section shall be interpreted to exempt the owner or operator of any religious facility from the requirements of [Hawaii’s anti-discrimination statute] if the religious facility is a place of public accommodation.
This trend suggests a general consensus (at least among the states pushing for marriage equality) that while we don’t want to force gay weddings into churches, we also don’t want churches to discriminate against homosexuals when operating as a public entity rather than a private religion. Even without such explicit statutory language, the current principles of American constitutional jurisprudence would probably result in similar distinctions made on a case-by-case basis.
Private Individuals & Businesses
The most often cited examples of religious infringement are those involving individuals. Not a single same-sex marriage or civil union statute contains a religious freedom exemption for private businesses or individuals who may provide goods, services or facilities attendant to a wedding, similar to that provided for religious organizations.
This is one area where same-sex marriage opponents’ fears have more weight, although they are still somewhat misguided. There have been a few instances successful lawsuits against people who refused to do business with same-sex couples, but nearly all of them were filed under their states’ anti-discrimination laws, and many occurred in states that have never allowed same-sex marriage. This blog neatly explicates some of the more high-profile cases. So a disagreement with the outcomes in these cases is not really properly directed at gay marriage itself, but should focus on the anti-discrimination laws (currently, twenty states plus D.C. include “sexual orientation” as an impermissible basis for discrimination).
While requiring private businesses or individuals to cater to same-sex weddings immediately strikes many as an infringement of personal freedoms, it is not exactly an unprecedented idea. For example, since 1964, if you own or operate a “place of public accommodation” (which includes any business that is open to the general public’s patronage) , you cannot legally refuse service to people on the basis of race.
Many will balk at this comparison, but like religious beliefs, racist beliefs can also be deeply-held, sincere personal convictions that have been instilled through generations, although as a society we don’t necessarily choose to respect them. Beliefs about interracial marriage provide the most analogous example: an anti-miscegenist hotel owner could not refuse to rent out a ballroom for an interracial wedding solely because the wedding conflicts with his personal beliefs. And before drawing a distinction between religious beliefs and racist beliefs, keep in mind that historically, religion has oft been used in defense of racism, from slavery to anti-miscegenation laws (for examples of such religious arguments, see this blog of a modern faith-based hate group).
Future of Religious Freedom Clauses
If the Supreme Court decides the gay marriage cases in any of the predicted manners, religious freedom clauses (or lack thereof) should not be impacted either way. In the thirty states without sexual orientation discrimination laws, neither religious institutions nor individuals are at much risk from lawsuits based on refusal to accommodate a gay wedding.
In the twenty states that do have such anti-discrimination laws, legislators who want to expand marriage should include an exemption similar to the proposed bills in Hawaii or Illinois. This would prevent government intrusion into the religious practices of a church, while reaffirming that churches and individuals cannot use religion to justify discrimination as actors in the public sphere.
Table 1: Overview of the Current Law
| Allow Same-Sex Marriage | 10 | CT, IA, DC, MA, MD, ME, NH, NY, VT, WA |
| Allow Civil Unions | 6 | CO, DE, HI, IL, NJ, RI |
| Constitutional Ban on Same-Sex Marriage | 10 | AK, AZ, CA*, CO, MT, MO, MS, NV, OR, TN |
| Constitutional Ban on Same-Sex Marriage and Civil Unions | 20 | AL, AR, FL, GA, ID, KS, KY, LA, MI, NC, ND, NE, OK, OH, SC, SD, TX, UT, VA, WI |
Table 2: Current Religious Freedom Exemptions
| Solemnization Exemption | Other Services Exemption | |
| Full Marriage States | ||
| CT | Yes | Yes |
| DC | Yes | Yes |
| IA | Yes | No |
| MA | Yes | No |
| MD | Yes | Yes |
| ME | Yes | No |
| NH | Yes | Yes |
| NY | Yes | Yes |
| VT | Yes | No |
| WA | Yes | Yes |
| Civil Union States | ||
| CO | Yes | No |
| DE | Yes | No |
| HI | Yes | Yes |
| IL | Yes | No |
| NJ | Yes | Yes |
| RI | Yes | Yes |
Table 3: Pending Legislation
| Full Marriage Bills | Solemnization Exemption | Other Services Exemption |
| AZ | No | No |
| HI | Yes | Yes |
| IL | Yes | Yes |
| MN | Yes | Yes |
| NM | Yes | No |
| RI | Yes | No |
| TX | No | No |
| Civil Union Bills | ||
| AZ | Yes | Yes |
| MN | No | No |
| TX | No | No |
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