A winner-takes-all approach to state same-sex marriage laws is self-defeating

The following contribution to our same-sex marriage symposium is by Robin Fretwell Wilson, the Class of 1958 Law Alumni Professor of Law at Washington and Lee University School of Law and a co-editor of Same-Sex Marriage and Religious Liberty: Emerging Conflicts (Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., Rowman & Littlefield Publishers, Inc., 2008)

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Professor Singer argues for same-sex marriage legislation stripped of any accommodations for religious organizations or individuals who adhere to a traditional view of marriage.  The religious liberty accommodations I and others have worked to secure would allow such individuals and organizations to step aside from facilitating any marriage when doing so would violate their sincerely held religious beliefs.  These exemptions would not allow religious individuals in commerce or government employment to act as a roadblock on the path to marriage.  Instead, they cabin the ability to object to only those situations when no substantial hardship for same-sex couples would result.

Professor Singer sees this proposal – which balances competing interests in a plural, democratic society while still giving preference to marriage equality – as a bridge too far.  Her rigid winner-takes-all approach is myopic and self-defeating. 

In New York, exemptions put Governor Cuomo’s proposed same-sex marriage bill over the top, securing a long-sought legislative victory.  Far from hollowing out the victory for same-sex marriage advocates, religious liberty exemptions shifted the debate from whether to embrace marriage equality to how to balance that good with other goods in society.  Only two years before, proposed legislation in New York offering “clergy-only protection,” like that supported by Professor Singer, failed to garner enough support to become law.

Contrast this victory with the defeat in Maine.  In 2009, Maine legislators stubbornly refused to include robust religious liberty protections in Maine’s statute recognizing same-sex marriage.  Instead, the legislature elected to provide only hollow “protections” already guaranteed by the Constitution.  Maine voters turned back the law in a “people’s veto” by a relatively narrow margin:  fifty-three percent to forty-seven percent.  The inflexible winner-takes-all character of the Maine statute naturally elicited the question raised by Professor Dale Carpenter the next morning:  would “includ[ing] broader protection for religious liberty in the legislature’s [same-sex marriage] bill” have made a difference?  Arguably yes – after all, if a mere 3.1% of voters could have been swayed to change their votes by live-and-let-live religious liberty protections, Maine would have same-sex marriage today.  Exemptions take a powerful argument against same-sex marriage away from opponents.

Very little is to be gained by Professor Singer’s one-hundred-percent-victory-or-none-at-all stance.  Where robust exemptions have not been provided, marriage equality efforts have failed. Moreover, under our proposal same-sex couples receive the services they need from individuals in commerce and government employees – by its very terms, in a straight-up contest between religious liberty and marriage equality, religious liberty yields to marriage equality.

Prof. Singer argues that exemptions as to marriage will lead to exemptions for all kinds of conduct presently prohibited by anti-discrimination laws.  As I have explained to Professor Singer in the past, the provision I have supported is limited by its terms to recognition and celebration of marriages – full stop.  This is so because for many people, marriage ceremonies have religious significance, and weddings are religious sacraments.  It is possible to object to assisting with same-sex marriages without also being anti-gay.  Indeed, many people have no objection generally to providing services to gays but would object to directly facilitating same-sex marriages. Without explicit protection, these individuals and groups will face a cruel choice – their consciences or their livelihoods. 

Same-sex marriage advocates themselves recognize that a winner-takes-all approach is not the smart move.          As Jonathan Rauch has said, “the smart approach is to bend toward accommodation, not away from it, whenever we can live with the costs.”

If Professor Singer’s religious “over-accommodation” argument was correct, then it would invalidate thousands of federal and state religious statutory accommodations, from military conscientious objection to Native American peyote use, which received a statutory exemption in response to Employment Division v. Smith.  As these laws demonstrate, there is nothing unusual or radical about including strong religious liberty protections in same-sex marriage legislation.  In fact, Smith itself invited legislatures to create statutory exemptions.  Justice Scalia specifically noted that:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process.  Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well.

Accommodations and the Establishment Clause

The U.S. Supreme Court has grappled with the permissibility of religious accommodations, such as those in Title VII, on several occasions.  In Thornton v. Caldor, the Court held that a Connecticut statute, which provided Sabbath observers with an absolute and unqualified right not to work on their chosen Sabbath, violated the Establishment Clause, but was careful to distinguish Title VII’s more measured accommodations.  Thornton, a Presbyterian who observed a Sunday Sabbath, worked for Caldor, Inc. in one of its retail stores.  After declining to work on Sundays, Thornton invoked the protection of a Connecticut statute that provided:  “No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day.  An employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.”  Caldor offered to transfer Thornton, who refused and was subsequently demoted.  Thornton resigned and filed a grievance with the State Board of Mediation and Arbitration, where he prevailed. 

The Court concluded that the statute violated the Establishment Clause, citing Lemon v. Kurtzman.  Under Lemon, to pass constitutional muster, a statute must not only have a secular purpose, it must not foster excessive entanglement of the government with religion, nor can it have a primary effect of advancing or inhibiting religion.  Because the Connecticut statute contained no exception for “special circumstances,” it could impose substantial burdens on employers or other employees.  This might occur, for example, if a Friday Sabbath observer worked in a job with a Monday to Friday schedule, forcing the employer to arrange coverage.  Likewise, an absolute right to accommodation could force other employees to work in the Sabbath observer’s place.  Because the accommodation was unqualified, Connecticut’s statute had a primary effect of advancing a religious practice.

Justice O’Connor concurred, focusing primarily on the message conveyed by Connecticut’s unqualified accommodation.  She concluded that the statute endorsed “a particular religious belief, to the detriment of those who do not share it.”  By contrast, Title VII “calls for reasonable rather than absolute accommodation.”  Title VII extends “[protection to] all religious beliefs and practices rather than protecting only the Sabbath observance.”  Unlike the Connecticut statute, Justice O’Connor concluded that an “objective observer would perceive [Title VII] as an anti-discrimination law rather than an endorsement of religion or a particular religious practice.” 

A later, direct challenge to Title VII – in Corp. of the Presiding Bishop v. Amos – maintained that its exemption of religious organizations from the general proscription on religiously based employment discrimination impermissibly “singles out religious entities for a benefit.”    Writing for the majority, Justice White explained that when the “government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, . . . the exemption [need not] come packaged with benefits to secular entities.”  Indeed, the Court “has never indicated that statutes that give special consideration to religious groups are per se invalid.  That would run contrary to the teaching of our cases that there is ample room for accommodation of religion under the Establishment Clause.”  The Court further held that “laws ‘affording a uniform benefit to all religions’” are not “subject to strict scrutiny,” but rather “should be analyzed under Lemon.”  Because Title VII’s exemption for religious organizations was “neutral on its face and motivated by a permissible purpose of limiting governmental interference with the exercise of religion,” the Court saw “no justification for applying strict scrutiny to a statute that passes the Lemon test.” 

More recently, in Cutter v. Wilkinson, the Court reaffirmed the permissibility of accommodations outside Title VII that “confer[] no privileged status on any particular religious sect, and single[] out no bona fide faith for disadvantageous treatment.”    Cutter unanimously rejected an Establishment Clause challenge to the Religious Land Use and Institutionalized Persons Act of 2000 because, among other reasons, it mitigated “exceptional government-created burdens on private religious exercise,” and took into account the burdens that accommodations would impose on non-beneficiaries. 

It also seems implausible that accommodations implicate equal protection since they routinely appear in civil rights legislation, like Title VII of the Civil Rights Act of 1964 and every draft of the Employment Non-Discrimination Act since the bill’s introduction in Congress. 

In short, the qualified and narrowly crafted exemptions that I and others propose parallel exemptions in hundreds of state and federal laws, some of which the Supreme Court has intimated will pass constitutional muster. 

A unique opportunity

Legislators have a unique opportunity – to acknowledge the importance of committed, intimate relationships to same-sex couples – and then to give equal consideration to individuals and organizations that cannot, for religious reasons, recognize same-sex marriages.

If the new same-sex marriage laws in Connecticut, New Hampshire, New York, Vermont, and the District of Columbia stand for anything, it is that legislatures can advance one civil right without simultaneously eroding another.