Fourt-Part Series on Marriage Equality and Religious Liberty By Professor John Culhane: Part I: Defining the Conflicts and Issues

During the next four days, this site will host a series of posts by Professor John Culhane discussing the conflict between marriage equality and religious liberty.

John G. Culhane is Professor of Law at Widener University School of Law and Director of the nationally ranked Health Law Institute. He also holds the title of Lecturer at the Yale University School of Public Health. He blogs about law, LGBT legal, social and political issues, public and private health law issues, and many other subjects both weighty and frivolous at wordinedgewise.org.

Professor Culhane has written more than two dozen articles for legal journals on a similarly wide range of topics, and is currently editing and contributing to a book on the public health dimensions of charged political issues. He has also been regularly featured in national and local broadcast and print media, including National Public Radio, The Philadelphia Inquirer, Dissent Magazine, and Voice of America. In 2008, he was featured in an award-winning, feature-length documentary about the events of September 11 and Hurricane Katrina, entitled “America Betrayed,” from Eclipse Entertainment.

At Widener, Professor Culhane has won three Outstanding Faculty awards, and in 2005 became the first to receive the Douglas A. Ray award for Distinguished Scholarship.

Marriage Equality and Religious Liberty
Part I: Defining the Conflicts and Issues

First, thanks to Michael Ginsborg, who hosts this always-informative and responsible site, for inviting me to do this series of guests post here. I visit often for a comprehensive account of what’s happening with the marriage equality movement, and with GLBT rights more generally.

Michael suggested I write on the issue of religious exemptions relating to gay marriages, just as the topic was heating up. I doubt that even he could have known how explosive the issue would become, and how much would come to be written on it. Thus, although no one’s ever accused me of diffidence when it comes to politics (especially gay rights), I should confess some trepidation in taking on this topic. More so, because the more I’ve read, the more difficult and vexing I’ve found the topic to be.

But, what is the topic? Once unleashed, can these exemptions be restricted to the marriage arena? That’s the preliminary question I’m addressing today, in the first of these four consecutive, daily posts. As is my practice, I’ll try to discuss these legal and policy issues in a way that will interest lawyers, law students, academics, and everyone else with an interest in the subject.

First, a little background on the emerging conflict. States that have been legislatively mandating the issuance of marriage licenses to same-sex couples have been urged to carve out safe harbors for religious objectors. Very broadly speaking, these exceptions fall into four categories.

• First, exceptions are routinely granted to religious institutions whose doctrines oppose same-sex marriages. They don’t have to perform them, nor support them by letting them use their facilities (generally). Hysterical predictions aside, this is the clearest and least controversial exception. Of course, it applies only to marriages and not to any other practices of a church, synagogue, mosque, or of other places of worship, that might interfere with the rights of same-sex couples, or of gays generally.

• Second, what about religious or “affiliated” organizations that want to go beyond refusing to marry same-sex couples? To use an actual example, should the Methodists have to rent out their beach pavilion, used for both church services and other religious and secular purposes, to a same-sex couple that wants to marry there?

• Third, there’s the issue of whether to allow a conscience exemption to a state worker whose religious beliefs would be compromised by facilitating a same-sex marriage. Should a clerk have to process the application of a gay couple? A prominent group of law professors support such an exemption.

• Fourth, and to my surprise, the question has been raised as to whether the constellation of private business entities – and their employees – who oppose same-sex unions should be able to “step aside,” as some of these scholars demurely suggest. For example, should a florist who opposes same-sex marriages be able to refuse to participate in a gay wedding, either by supplying the flowers for it directly, or by selling flowers to a guest?

So, in which of the above cases should the law recognize an exemption based on religious belief? I’ll start by agreeing on the easiest case (the first one above). Almost everyone agrees that religions must be allowed to “be themselves,” which means they get to decide who’s married in their eyes.

Let’s move on to the other, more interesting, cases. Once we do, there are at least four issues or questions that come up across the categories, each of which I’ll address in the next few days.

First, it’s clear that resolving the conflict in each case will work some kind of hardship on the “loser” – the gay couple denied a service and suffering a loss of dignity or worse (such as being unable to take advantage of married student housing by a religious university), or the religious objector forced to choose between violating her religious teaching, or following it by, for example, losing a job, being sued, losing a tax exemption, and so on..

For reasons that are entirely clear, and that I fully sympathize with, many in the LGBT community have been reluctant to acknowledge that there are two competing interests here, both of which deserve respect. After approximately forever, we’re just now beginning to achieve equality, but there’s a long and fraught road ahead of us. We still don’t even have a federal hate crimes bill or job protection at the national level. And it’s fair to ask: Can we please repeal the Defense of Marriage Act before we even start worrying about the rights of our religious opponents? Nonetheless, we should be honest – and practical – enough to see these conflicts as real, and accord our opponents the respect that we demand (but rarely get from them, I note). It’s incumbent on people of good faith to seek a practical solution to these thorny problems.

A second, more practical question, is whether it’s possible, or even a good idea, to craft legislative rules carefully enough to resolve most (never all!) cases. If not, is leaving flexibility to the courts a good solution? I think not, and will try to defend this position during the next few days.

Third, can this controversy be cabined to the case of marriage equality? Let me give you a sophisticated answer: No. This will be the subject of tomorrow’s post.

The last question is the one I’ll answer right now. Practically speaking, does this issue matter a great deal? Are there likely to be serious and numerous conflicts between same-sex couples and the religious folks who oppose them?

Probably not. Dale Carpenter hasn’t found a single reported case testing the religious freedoms of objectors against the rights of same-sex couples to marry or “civilly unite.” That doesn’t mean, of course, that conflicts haven’t arisen, or even that the odd suit hasn’t been filed. (Generally, only appellate cases are reported, and many cases of course settle even before trial.) But he’s probably right that conflicts are rare, especially in the commercial realm. As he states, probably accurately:

“The really interesting question is why there have been so few conflicts. The main reason, I suspect, is common sense and forbearance on the part of both gay couples and those who object on religious grounds to gay marriage. Unless they have no other choice, few gay couples want to pay for marital goods or services from people who don’t want to provide them. Few service providers object to gay marriage on religious grounds, and….fewer still believe their faith requires them to refuse goods or services (or housing) to gay couples. Plus, they want the business.”

For that reason, Carpenter, Nan Hunter, and others don’t so much mind these exemptions, especially, as Hunter says, if they are likely to sweep away an excuse or objection to marriage equality legislation. In New Hampshire, for example, Governor John Lynch signed such a law after the legislature drafted a religious exemption that isn’t likely to afford protection beyond what was already constitutionally available.

Nonetheless, I think (as do all of these legal scholars, and others) that the debate is worth having – and not just to fill up the blogosphere and law reviews. (Can either ever be filled, though? Apparently not.) I think that we need to decide what kind of exemptions we want to allow – not just for marriage, but more generally. The push for marriage equality has provided a useful place to have the conversation, but it speaks to something broader.

That’s a lot for one day. Come back tomorrow after a good night’s sleep.