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Civil Unions and Religious Liberty: A Response to Stone

Geoff is not his usual careful self in his reply to Rick Garnett and me, and the straw men he flails away at bear little resemblance to what I said.  Or Rick either, but I'll let him speak for himself.

I offered a careful proposal to maximize the civil liberties of all Americans.  Gays and lesbians would be free to marry; religious objectors would generally be free not to personally facilitate those marriages in ways they considered sinful.  In the cases of unavoidable conflict, where a same-sex couple wants or needs a service that is not readily available from another provider, I said that the right to same-sex marriage should prevail over the right to conscientious objection. 

This proposal is not the right of "any tomdickandharry . . . to discriminate . . . at will."  It is not a right to refuse service in a restaurant or a hardware store or a law office or in most other businesses in the economy.  It is a proposed right not to facilitate the marriage in a way sufficiently immediate that the service provider feels personally culpable for his contribution to the marriage.  The examples I offered were wedding planners, marital counselors, and adoption agencies.  And even this right not to faciliate would be forfeit if the conscientious objector were the only wedding planner, marital counselor, or adoption agency reasonably available.

What is at stake for each side in allowing or disallowing such an exemption? Enacting same-sex marriage enables the same-sex couple to live their own lives according to their own values.  Enacting the religious exemption allows the traditional believer to do the same.  In the unusual case where the conflict is unavoidable and one side must yield, I proposed that the exemption yield to the general law.

What is the harm to same-sex couples of permitting this exemption?  They may be modestly inconvenienced if they come to the conscientious objector first, not knowing of his objection, before they go to a second provider of the same service.  And they will be reminded that there are people in the society who deeply disapprove of what they are doing -- but of course they already know that. 

These costs are real, but they are far smaller than the cost to the conscientious objector of refusing the exemption.  He would be forced to do something he considers seriously sinful for himself, not just for the same-sex couple.  Every religion has teachings on when cooperation with someone else's sin makes the collaborator personally responsible.  Some of these people believe that their own eternal salvation is at risk if they assist in someone else's same-sex marriage.  Sophisticates may ridicule such beliefs, but they are very real to the believers.  I support religious exemptions for the same reason I support same-sex marriage:  each side in this culture war should be free to live its own life and act on its own identity.

The exemption regime I have proposed would impose far smaller costs on same-sex couples than the costs imposed on traditional believers if we refuse the exemption.  In addition, the exemption regime actually has some benefits for same-sex couples.  They will not struggle with reluctant, bare minimum, possibly sabotaged service from someone coerced into doing something he considers mortally sinful.  You really don't want to get your marriage counseling from a counselor who thinks your marriage is fundamentally wrong and should be dissolved immediately.  If you insist on a right to such counseling, it is not to benefit the counselees, but to punish the counselor and drive her out of the profession.  And as I said in the original post, same-sex marriage will become more quickly and more generally accepted if we do not create a series of martyers by prosecuting conscientious objectors who refuse to comply with the law.

Of course there will be some close cases under an exemption regime.  There may be disagreements over whether an alternative provider of the same service is too distant or not offering quite the same service or otherwise not reasonably available.  There may be claims or conscientious objection that seem attenuated or insincere.  Courts will have to decide such cases as they do today under state and federal Free Exercise Clauses and religious liberty legislation.  But there is no basis either in experience or theory to predict a slippery slope that renders the whole exemption regime unworkable.  The cases that have arisen so far involve powerful intrusions on the conscience of the individual objectors affected, but they have been surprisingly few in number. 

The proposed exemption in the Illinois civil union bill does not take the issue seriously.  It consists of two sentences:  "Nothing in this Act shall interfere with or regulate the religious practice of any religious body.  Any religious body, Indian Nation or Tribe of or Native Group is free to choose whether or not to solemnize or officiate a civil union."

If the first sentence means what it says, then the reference to "any religious body" in the second sentence is redundant.  If the second sentence is needed with respect to religious bodies, then the meaning of the first sentence must be far narrower than appears.  A court sympathetic to exemptions would give full effect to both sentences and attribute the redundancy to bad drafting or inattention.  A court hostile to exemptions might read the two sentences in pari materia and confine them both to the meaning of the second, or to not much more than that.  The drafters appear to want to protect religious institutions here; at the very least, they should attend to the drafting and make sure they have done that.

But beyond that, they should protect the conscientious objection of religious individuals who refuse to facilitate same-sex marriages.  Properly drafted, such an exemption would protect one minority from serious harm while inflicting very little harm on the other minority.

Geoff devotes much of his response to whether there should be religious exemptions from racially mixed marriages.  We have such exemptions, de facto, for the church itself; we do not force religious organizations to perform religious ceremonies against their will or in violation of their own doctrine.  Even for individuals, the example cuts in the opposite direction from how Geoff tried to use it.  When anti-miscegentation laws were repealed or invalidated in the mid-twentieth century, opposition in the south was intense and widespread.  But we did not have modern public accommodations laws of the kind now enacted in many states, which cover substantially all goods and services in the economy.  The issue of conscientious objection did not come up, because government did not try to coerce objectors to faciliate interracial marriages.  But interracial couples still got married, with the services of those willing to help, and the population got used to those marriages, and today, the opposition to them is dramatically less than it used to be.  Even in that difficult case, riding roughshod over conscientious objectors was not necessary to implement interracial marriage.

So the question is more theoretical than real, but I do not argue for an individual right to conscientious objection to racial equality laws.  In the related context of private education, the Supreme Court has found a compelling interest in racial equality that overrides claims under the Free Exercise Clause (Bob Jones Univ. v. United States), and I have earlier indicated my acceptance of that decision.  Race is unique in our constitutional history, and however horrific the old-time discrimination against gays and lesbians was, it does not involve 250 years of slavery, a Civil War with 600,000 dead, or three constitutional amendments.

Finally, Geoff thinks that it violates the separation of church and state to enact laws for the purpose of imposing one group's religious beliefs on others.   I would put the point a bit differently, and he recognizes that his formulation is often unenforceable, so it may be that we don't disagree much at the bottom line.  I would say that it violates the Establishment Clause for government to require people to engage in religious worship, ritual, or observance. 

On the other hand, both church and state have always spoken to moral limits on human behavior.  The state regulates human behavior, and all citizens in a democracy are entitled to lobby for the regulation they think best.  The Supreme Court has repeatedly held that a law does not violate the Establishment Clause merely because it coincides with the beliefs of some religious group.  The Court even applied this rule to a law that made it a crime to "profane the Lord's Day," which is pretty close to Geoff's example of requiring observance of the Christian Sabbath because work on that day is sinful.

I'm not sure the Sunday Closing Cases were rightly decided, but they are at least close to the line and thus help indicate the general location of the line.  It will not always be obvious whether a law requires a religious observance or regulates human behavior in some other way.  Refraining from work on the Sabbath looks like a religious observance, but the law also regulated commerce and had secular support from a variety of economic interests, and the Court relied on these facts to conclude that it was sufficiently secular to be upheld.

Whatever we do with the Sunday Closing Cases, defining civil marriage, and thus defining the host of legal and economic benefits that attach to civil marriage, is plainly regulating human behavior and not just requiring a religious ritual or observance.  I agree that it is constitutionally problematic for the state to define access to civil marriage in discriminatory terms.  But the constitutional problem lies in the violation of equality or the violation of sexual autonomy, not in the Establishment Clause, just as the right to abortion resides in personal autonomy, or gender equality, but not in the Establishment Clause. 

Even under Geoff's formulation, it would be difficult for a court to conclude, other than by fiat, that a law confining marriage to opposite-sex couples was enacted for the purpose of imposing religious beliefs on non-believers.  The laws were enacted without controversy, at a time when no one was proposing same-sex marriage.  They may reflect tradition, or an historic lack of imagination, or even simple prejudice.  They have been defended on the basis of a Burkean fear of changing too much too fast, and on a simple fiscal argument against increasing the number of people eligible for spousal benefits under social security and similar laws.  None of those arguments are sufficient in my view, and none of them respond to the equal protection or due process problems.  But they do respond to the Establishment Clause argument, by making it impossible to conclude that the only purpose here is religious.

We should protect same-sex marriages, and we should protect conscientious objectors from being forced to facilitate those marriages.  This is not a terrible idea; this is just civil liberties for all.  The advent of same-sex marriage can be a great advance for human liberty.  But it will be at best a wash for civil liberty if same-sex couples and their allies henceforth oppress traditional believers in the way that traditional believers and their allies have historically oppressed same-sex couples.  There is no need for such oppression, and strong reasons of both principle and pragmatism to avoid it.

Full post as published by The University of Chicago Law School Faculty Blog on May 06, 2009 (boomark / email).