Religious liberty exemptions at center of controversy as D.C. Council prepares to vote on marriage equality law

11/11/09 Washington Blade and 11/10/09 GLAA Forum:

On November 10th, a D.C. Council committee approved a revised version of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 (Bill 18-482, as introduced October 6th.) The Blade reports that Phil Mendelson, Chair of the Council's Public Safety & Judiciary Committee, "released a 22-page proposed committee report on the bill." The revised bill removes a provision for the sunsetting of domestic partnerships, a provision that law professor Nancy Polikoff has advocated.

Polikoff has also discussed ongoing controversy over the legislation's religious liberty exemptions. Several types of exemptions have been considered in the legislation or at the hearings on On October 26th and November 2nd. All of them trace their origins to the legislative advocacy program of several scholars on religious liberty and the constitution, including Robin F. Wilson. Wilson is a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts, a book that develops arguments for the exemptions. (Law professor Shannon Gilreath provides the latest critical review of the book here.) You can find links to other counter-arguments in my roundup of recent scholarship on the subject.) Just before the October 26th hearing, these scholars sent another version of their advocacy letter to D.C. Council members.

The following exemptions have been at issue with the D.C. legislation (and marriage-equality legislation in other states):

1. Religious organizations, and affiliated nonprofits, sought exemption to deny services to the general public, such as shelters, adoption placements, and foster care. However, as Polikoff observes, the D.C. Human Rights Act (HRA) already bars religious entities from engaging in this form of discrimination, because the Act prohibits discrimination based on sexual orientation. (I reached the same conclusion here.) The Committee removed language that would have prohibited such discrimination. They amended the bill to allow objecting religious entities to deprive married gay couples of "religious programs, counseling, courses, or retreats," a protection that may have been borrowed from New Hampshire's marriage-equality law. The Archdiocese of Washington considers the amendment an unwelcome "narrowing" of its preferred exemption, even though the Archdiocese was effectively asking the Committee to allow Catholic Charities to discriminate in ways that the HRA would not otherwise allow. Unless the bill undergoes further amendment, two Washington Post reporters anticipate a "showdown" over a threat by the Archdiocese of Washington to withdraw services by Catholic Charities.

2. Individual merchants in the wedding business - such as photographers, florists, caterers, and bakers - might have been exempted so that they could deny a same-sex couple their commercial services if same-sex marriage violated their religious principles. Law professor Robin F. Wilson advocated for this exemption at the November 2nd hearing (her name is on this list of witnesses), and in a Washington Post opinion article. (You can compare this article with its predecessors in the Bangor Daily News and the Los Angeles Times.) In her op-eds, Wilson has used the same strident language to justify the recommended exemptions, including this so-called "religious conscience clause" for individuals: "individuals and groups will face a cruel choice: their consciences or their livelihoods." At its November 10th meeting, the Committee defeated a proposed amendment to provide this exemption. The Blade reports that a Committee member "called the amendment 'unacceptable,' saying it would go far beyond the exemption already in the bill and result in allowing private, non-religious businesses to engage in discrimination that currently would violate the city’s Human Rights Act."

3. Wilson also tried to convince Committee members to exempt marriage license officials from licensing same-sex marriages if they have religious objections. The primary sponsor of the marriage-equality legislation, David Catania, appears to have lost patience with Wilson for her perceived overreaching. See his unusual letter to her. It's unusual because this is the first time Wilson has received what passes for a rebuke from a legislator. Catania told her, "I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. "

4. Religious organizations and affiliated non-profits requested legal protection to deny benefits to the same-sex spouses of their employees. Polikoff called this request a "red herring," because the federal DOMA already allows employers to deny health insurance and retirements benefits to same-sex spouses of employees. Of course, repeal of that law could revive the issue. But for other reasons, the Committee did not adopt this exemption.