A response from four more law professors

to my questions about their proposal to provide broad religious-liberty exemptions in state statutes that recognize same-sex marriages. (I posted a separate response from Doug Laycock yesterday.) The four authors of this reply, all experts on religious freedom, are Robin Wilson, Carl Esbeck, Rick Garnett, and Tom Berg. Here is their reply, which has also been posted at Mirror of Justice:

Thanks very much for noting our proposal for a religious-liberty exemption to same-sex marriage laws in the context of the Connecticut debate and elsewhere, and thanks too for your questions about the proposal.

At the outset, just a few words about the necessity for religious-liberty protections. We agree with most of what Doug Laycock says on that score. The memo accompanying our proposal details the range of conflicts that have arisen or may arise. You’re right that in some such cases, sexual-orientation nondiscrimination laws might already conflict with the religious objection. Nevertheless we believe that same-sex marriage increases the risks to religious liberty. Some of the effects are direct. It’s partially, but only partially, that SSM increases the number of occurrences in which traditionalist religions or believers might be asked or pressured to facilitate same-sex ceremonies as organizations or business owners. Beyond that, SSM eliminates the argument, which has sometimes been successful, that a traditionalist organization does not engage in sexual-orientation discrimination as such, but acts against all extramarital sexual conduct. See, e.g., Christian Legal Society v. Walker (7th Cir. 2006) (accepting this argument for CLS’s limits on holding leadership positions). Therefore traditionalists in some places will be newly subject to the claim that they are committing sexual-orientation discrimination — or committing marital-status discrimination, if they act based on an objection to an individual’s having entering into a same-sex marriage.

In addition to the direct effects in the marriage-related contexts, there are spillover effects in other contexts such as employment or adoption. SSM with weak religious-liberty exemptions increases traditionalists’ exposure to already-existing sexual-orientation nondiscrimination laws in those other contexts. This is in part because it might (as you suggest) weaken the public regard in general for religious liberty. But more specifically, it would likely weaken defenses under state religious-freedom provisions, constitutional or statutory (state “RFRAs”), that require a compelling interest to override religious freedom. Without religious exemptions, SSM may well be perceived by courts as strengthening the assertion that the government has a compelling interest in eliminating sexual-orientation discrimination in all contexts, not just marriage-related ones, with no religious exemptions. This was precisely the Supreme Court’s logic in the Bob Jones University case: the government had prohibited race discrimination in multiple contexts without exceptions for religiously based discrimination, therefore no exception should be made for a tiny college to keep its tax-exempt status. Thus, in contrast with you, we think that passage of SSM with weak or nonexistent exemptions might very well have a significant negative effect on Catholic Charities’ argument — a meritorious argument, as you’ve said — that forcing it out of special-needs adoption work serves no sufficient purpose when many other agencies are available to assist gay couples.

Including a significant religious exemption in a SSM bill, on the other hand, sends the message that the state’s policy in general is to value religious liberty as well as nondiscrimination norms. It bolsters this more balanced resolution of the gay-rights / religious-freedom conflict not only in the marriage context but elsewhere. And it’s in the interest of SSM supporters to back generous exemptions, which address an objection to SSM that you and the four of us all seem to agree is real, but which in most cases (the four of us think) will not erect significant barriers to gay couples.

On your questions about interpretation of our proposal:

1. Religious exemptions should include individuals, not just nonprofit religious organizations, as all of us seem to agree with the wedding photographer case (unfortunately, VT and CT haven’t protected them). We are open to hardship exceptions from exemptions in cases where the exemption would, as you put it, impose “substantive (as opposed to symbolic) hardship on married gay couples and families.” But we doubt that this substantive-symbolic distinction can be squared with your suggestion that individual state employees should be categorically excluded from exemption. If one wedding registrar objects to memorializing the marriage but another is immediately available, is there any measurable harm that’s not merely symbolic? We think that putting a state employee to a choice between her faith and her job should require something more.

We also think that a hardship exception to a religious exemption should mean real “hardship” as opposed to mere inconvenience. To take some of the examples in our letter: If a marriage counselor is dismissed or sanctioned for refusing to counsel same-sex couples, or a small landlord is subject to fines or injunctions for refusal to rent, or a religious college is forced to provide housing for same-sex intimate couples, these objectors suffer loss of livelihood or other real hardships that should only be imposed, if at all, in cases of greater hardship on the other side. So we agree with you that the devil is in the textual details here, and we’d be interested in hearing your proposed standard.

2. We agree that a religious exemption should not protect harassment, provided that the definition of “harassment” is cabined to respect rights of free speech and non-coercive criticism along the lines Doug Laycock sketches. We don’t think the language “refusing to provide services, refusing to solemnize, or refusing to treat [a marriage] as valid” can plausibly be read to protect active harassment as opposed to, in Doug’s words, the right to be left alone.

3. We wouldn’t expect language in this proposal to broaden exemptions in other nondiscrimination laws beyond how courts have reasonably interpreted them. Our concern regarding other laws, as mentioned above, was the opposite: that recognition of SSM with minimal religious-liberty protections would weaken or undermine religious-liberty arguments that objectors in other contexts were previously able to make.

4. Our proposal covers all religiously based objections to marriages so as to respect the principle of neutrality among religious beliefs. Like Doug Laycock, we think that other religious objections to marriages will be extremely infrequent. For example, we searched on Westlaw for cases after Loving v. Virginia in which individuals refused to solemnize an interracial marriage and could find only 1 news story, and that dispute settled. We think that conflicts of this sort are no more likely today.

I appreciate the great thought, care, and time that went into this reply. Along with Professor Laycock’s response, it has been very helpful in clarifying my own thinking about this. It deserves a more thorough and considered reply than I can give it right now, but I do hope to address in a few days both the underlying religious-liberty concerns and some of the potential ways to address those concerns. In the meantime, however, I wanted to share this response with readers and get their reactions.