Part III in Professor John Culhane's series on marriage equality and religious liberty: A Suggested Approach to Accommodation

Between August 3rd and August 6th, this site will host a series of daily posts (see also Part I and Part II) 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 III: A Suggested Approach to Accommodation

Now comes the heavy lifting. In the first post, I advanced a couple of preliminary points that I need to expand upon today. The first is a reminder that there are indeed competing liberty interests here. Both should be accommodated and respected, and laws should be drafted with that in mind, as well as to minimize conflicts in the first place. The second issue is the hard slog: What legislative accommodations should be made?

As Professor Douglas Laycock of Michigan states in his terrific Afterword to Same Sex Marriage and Religious Liberty (which he co-edited with Wilson and Anthony R. Picarello, Jr.), the “area of avoidable conflict covers a large domain: speech, association, religious teachings, marriage ceremonies, tax exemption, and probably more.” He counsels the avoidance of litigation based on disgust, hurt feelings, etc., and, as I noted yesterday, Dale Carpenter thinks that people are already avoiding conflict to a large extent. As we’ll see, though, I think that the area of avoidable conflict that Laycock identifies is capable of accommodating squabbles that others might see as calling for legislation.

Let me warm up with what I think is the easiest of the cases. For reasons I spelled out some time ago, I strongly oppose allowing public servants to refuse to do their job. One condition of taking a government job is, and should be, a willingness to do what the government allows. Again, Carpenter:

“I am wary of introducing [protection for individuals whose religious beliefs are burdened by antidiscrimination law] into the provision of services to the public by employees of the state. Because of their position as representatives of the state, because they administer laws that benefit the public, and because they are paid by public tax money, these employees are treated differently than we treat private employees or members of the public themselves (see, e.g., free-speech rights).”

In a post, I tried to express my own reservations with this example:

“Imagine that New York passes a marriage equality bill that exempts marriage license clerks ho have religious objections to same-sex marriages from having to perform their otherwise required duty. Further imagine that there’s one such clerk in the Manhattan office, and that here are ten available windows at which licenses are issued. To speed things up, and to avoid unpleasantness when same-sex couples walk up to the window, the city decides to post a sign at the one window where the religious objector is working: “Opposite-sex Marriages Only.” Would doing so be OK, in the interest of convenience?

“Presumably, this example would make even advocates of the exemption uncomfortable, because it calls to mind “Colored Only” water fountains, rest rooms, lunch counters — you get the idea. But by allowing the clerk to refuse his or her civic duty, the state is allowing, in a more subtle way, exactly this sort of discrimination. The clerk’s actions are the city’s actions.

“[But] I wouldn’t oppose other actions by this office to respect this worker’s religious beliefs. One option would be reassignment to an office that issues different kinds of licenses. I can’t see a cost there to either side….Less formally, an objector who observed a same-sex couple waiting in line, or filling out an application, might step aside before his or her presence became known, and allow another clerk to take over temporarily. This might happen in any case, with or without legislation.”

I should say that I feel the same way about other tasks that state or municipal employees might be called upon to perform that in some way recognize the state-conferred right of the couple to marry.

What about other cases that involve religiously affiliated or fraternal organizations, or businesses that might deal with same-sex weddings or other incidents of the gay couples’ legal status?

With some exceptions that I think need to be clearly set forth and defined, (and that I’ll discuss tomorrow), I do not favor legislatively created exemptions to the legal obligation to recognize same-sex couples. That doesn’t mean, though, that the religious objector is without recourse. I think that the scholars I’ve read on this issue have assumed a need for legal rules greater than what I think is either needed or advisable. Let me explain.

By design or not, a religious exemption will tend to swamp the competing interest of the same-sex couple. As a practical matter, it will be impossible to distinguish an act of pure bigotry from the kind of core belief (and for me, this belief need not be explicitly religious, though typically it is) that the law seeks to protect. Couple A might suspect that the hotelier who invokes the religious exemption in refusing to bring the complimentary bottle of “Honeymoon Champagne” (how cheesy!) to their room is simply lazy or thoughtlessly bigoted, but how could they prove that? And what lawyer would take the case, in the face of the statute? The refusenik puts the same-sex couple to the burden of suit, effectively expanding the protection beyond what’s contemplated.

Moreover, I don’t think that the proposed law is even necessary. Here, I want to marry a same-sex couple – well, their ideas, anyway – to suggest an accommodation that strikes me as almost comically simple. Dale Carpenter pointed out that most same-sex couples won’t bother dealing with a business owner they know to be opposed to their union, and Doug Laycock suggests that respect for others’ freedom of speech should create some space for avoiding conflict. Why not make explicit what I think and hope is already clear as a matter of First Amendment law: A business that objects to same-sex marriages may simply make that fact known, and explicit.

My original idea was to allow the exemption but require full disclosure: “Sorry, but we don’t accept catering engagements for same-sex weddings.” One can easily imagine a law that would require such a “sticker” at every point where a potential client might encounter it: Website, door of retail establishment, etc. This appears to be Laycock’s solution, too, to avoid what he calls “unfair surprise.”

Not a bad idea (after all, I did think of it!). But it doesn’t completely avoid the problem I just identified; while it does make it difficult for a business to invoke the exception willy-nilly, it doesn’t solve the “bigotry or exemption” problem. And it leaves the possibility of litigation, which I think can almost always be avoided in these cases.

How? Why not simply remind the objectors – I’d support a law spelling this out – that they have a right to clearly state that they oppose same-sex unions and would “prefer to step aside” (borrowing and repurposing language from Professor Wilson here) for religious reasons. There might even be standard, respectful language suggested (not mandated, but perhaps bulletproof), making clear that the proprietor’s objection is based on religion, not animosity. What same-sex couple wouldn’t respect that, and go somewhere else – if they could?

If they couldn’t – the dreaded one-florist town! – the couple could, under my proposal: (1) forego flowers (gasp!); (2) if botanically feasible, order some from out-of-town, or (3) fail to respect the wishes of the religiously objecting florist and use their services anyway. Wilson et al. would achieve that result through a “hardship exception” (only in a wedding-obsessed culture could the possibility of having no flowers at a wedding be thought of as a “hardship,” by the way), but then we might find ourselves litigating the issue of hardship. “We had a hardship.” “No, you didn’t.” Please, stop. Let’s not invent laws we hardly need.

Tomorrow, a mercifully short post! I’ll briefly discuss a few other cases where I think a religious exemption might be justified, and then wrap up.

[See law professor Dale Carpenter's engaging post on Culhane's proposal.]