Part II in Professor John Culhane's series on marriage equality and religious liberty: Can (or Should) Religious Exemptions be Limited to Marriage?

Between August 3rd and August 6th, this site will host a series of daily posts (see also Part I) by Professor John Culhane discussing the conflict between marriage equality and religious liberty. On August 7th, Professor Culhane will respond to comments to his posts.

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 II:

Can (or Should) Religious Exemptions be Limited to Marriage?

Yesterday, I noted that the call for religious exemptions to same-sex marriages that some are calling for are based on incidents that didn’t directly involve marriage. The always-thoughtful Dale Carpenter has gone further, questioning whether any of the issues that arise because of marriage really differ from those arising under state anti-discrimination law. In this regard, he discusses two well-known cases.

In the first, a New Mexico photographer was sued by a same-sex couple for declining to shoot their commitment ceremony. But the suit was brought under the state’s anti-discrimination law, as New Mexico doesn’t recognize same-sex marriages. The other, better-known case, involved the Catholic Charities of Massachusetts, which got out of the adoption business altogether rather than have to place kids with same-sex couples. Note, though, that Massachusettts has in place both antidiscrimination law and legislation that permits gays and lesbians to adopt on the same basis as their straight counterparts. Thus, as even some conservatives will admit when pressed, this case isn’t about marriage, either. It did happen that the issue arose only after Massachusetts began recognizing same-sex unions, but the timing was not legally relevant.

I’ve found it surprisingly hard to pin down the views of the religious exemption advocates on whether, or why, their suggested accommodations should be restricted to events and incidents surrounding same-sex marriage themselves. This tennis match exchange between five professors advocating for exemptions and Carpenter didn’t illuminate matters for me, either. (This link will get you to the whole series of posts.)

Nor was clarity provided by an e-mail exchange I had with Robin Wilson. Consider the following dialogue between us. (My questions to her are in italics; her response is in bold):

A man walks into a florist's shop to buy some flowers for a wedding. The owner who's working there shows him some appropriate flowers and wraps them up. The man then says: "Write on the card: 'To the Gayest Couple I Know: Ted and Fred." May the owner then refuse the sale on (let's assume bona fide) religious grounds?

Can a jeweler refuse to sell a diamond engagement ring to someone if she knows that it's to be given to a member of the same-sex? If not, why not? What in particular is significant about the "ceremony" as opposed to other signals of the state's recognition of the couple's wedding?

I would say if the flowers are for the wedding of Ted and Fred’s wedding, then yes, the florist could refuse if state law allowed him or her to, as I have argued it should. Refusals in my views are likely to be few but for a small state like Maine, if we predict that refusals by persons in the stream of commerce are likely to cause great hardship, that can be solved with a the hardship exemption like the one I argue for with first order conflicts (e.g., a person can refuse unless it causes a hardship to the couple).

If the flowers are not for Ted and Fred’s wedding, then no, the florist would not be permitted to refuse to sell them. Here it would have significance to me that the flowers are not to be carried by a wedding party member or used in the wedding or reception, neither were they requested by or on behalf of the couple for the wedding.

-------------

OK, she saw what I was doing by moving from purchases related to a wedding and those relating to other signs or signals of same-sex commitment. And she answered me directly. But why should marriage be treated differently? Again, Wilson:

[Y]our hypo[theticals] test why I would limit exemptions for individuals to the wedding ceremony. For many folks, marriage is a religious institution (and was long before it was a civil one) and they have religious views about this. Some believe that facilitating the solemnization of the relationship facilitates something they consider to be immoral—an act that itself has religious significance for them. An exemption that is not tied tightly to the ceremony and the relationship’s solemnization goes beyond facilitation of the relationship. A very broad exemption may encroach on a gay couple’s right to receive services in society like anyone else—to hail taxis and order burgers and rent apartments—all commercial services that do not have the religious significance of a wedding ceremony, the denial of which is difficult to explain as anything other than bigotry.

Practically speaking, her response seems sensible enough. Intellectually, though, it’s much less satisfying. Taxis and burgers are one thing (OK, two things), but “renting an apartment” is another. The case law is littered with tales of landlords who balked at renting apartments to unmarried couples, and many feel even more strongly about same-sex couples, whether they’re allowed to marry or not. Who’s to say these aren’t also moral objections, religiously based? (And, as Chai Feldblum pointedly asks, why do the objections need to be religious at all, as opposed to somehow central to one’s beliefs, or even to their identity?)

And what about the statement that exemptions for commercial entities in connection with activities not tied to the ceremony aren’t religiously based and are “difficult to explain as anything other than bigotry”?

Leaving aside the litigation nightmare that might be expected (but probably not; see next section) in figuring out when an exempted activity is “tightly tied” to the ceremony, I find this statement strange. Viewed through one lens, any refusal to recognize a same-sex couple, no matter the context, is bigotry -- religious objections notwithstanding. Through another, recognition of a same-sex couple’s union, no matter the setting, is an unwelcome infringement on their religious liberty. Wilson attempts, unsuccessfully, to avoid the problem by fiat. Marriage might be an acceptable place to draw the line she’s suggesting, but doing so is less than intellectually satisfying. I think Professor Laycock is closer to the mark in saying that “refusals of service may be an act of bigotry or social protest, but very often, the claim to feel personal moral responsibility…will be in complete good faith.” Afterword, Same-Sex Marriage and Religious Liberty, p. 195.

There’s more: I have the uneasy sense that, whatever the reassuring statements about “tightly tying” the exemption to the ceremony itself, that’s not quite what those advocating for these carve-outs really have in mind. The actual text of a proposed legislative exemption to recognizing same-sex marriages, drafted by Wilson and others, covers any and all “individuals” and bars penalizing them "for refusing to provide services, accommodations, advantages, facilities, goods, or privileges related to the solemnization or any marriage, for refusing to solemnize any marriage, or for refusing to treat as valid any marriage, where [doing so] would cause [that person or organization] to violate their sincerely held religious beliefs.” (emphasis added). (This site will link you to the letter that Wilson and others sent to Connecticut lawmakers.) [Michael Ginsborg: This site will link you to all the letters that have been sent to legislators.]

It’s the “refusing to treat as valid” that concerns me. On some level, the decision of a florist to refuse to sell flowers to a member of a same-sex couple on the occasion of, say, their tenth anniversary, is a refusal to “treat as valid” their marriage, and therefore potentially protected by the law.

This isn’t to decide, of course, whether this “failure to sell” should be protected, only to say that the line between marriage and other arenas in which the conflict arises isn’t clear, either conceptually or in at least some suggested formulations of the religious exemption.

Tomorrow, I’ll turn to my views of how the accommodation between these competing liberty interests should be made, mostly but not exclusively in the marriage context.