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Legal Commentary: Prawfs
The Alt-Neu clash of anti-discrimination and free exercise
By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Over at the Volokh Conspiracy, Dale Carpenter has an excellent post on the new tactic some opponents of same-sex marriage are taking: claiming that SSM will impair the free exercise rights of individuals and faith groups. Carpenter seems right in noting that the fact of same-sex marriage is doing little work in motivating most claims of infringement of free exercise. For the most part, even if SSM were not recognized, many of the persons or entities would still be claiming their free exercise rights have been threatened. Thus, the mere fact of SSM's newfound recognition in various places serves as an opportunity/springboard for repeating earlier claims of conflict between anti-discrimination laws and free exercise.
Like Carpenter, I'm strongly in favor of SSM and rights against discrimination on the basis of sexual orientation more generally. And at the same time I am broadly sympathetic to robust free exercise claims. So the conflict is not an easy one to resolve, especially as religious institutions participate in broader swaths of civil society through the establishment of schools, hospitals, adoption agencies, etc.
Carpenter abjures from trying to find a broad principle or strategy to help resolve these conflicts when they arise. I'm somewhat leery of ad hoc casuistry and thus tempted to find a (normative if not constitutional) distinction or set of distinctions that would create some predictability and sense here. My view is that, in almost all cases, sexual orientation is about as morally irrelevant as the race of a person. Thus virtually any situation where race-based discrimination should be prohibited should be grounds for application of the same norm against discrimination based on sexual orientation. Some applications and grounds for holding this view appear after the jump.
The examples below are culled from Carpenter's post. If I'm right that sexual orientation is as morally irrelevant a basis to discriminate upon as race is, then the person or entity claiming infringement of religious freedom should lose in all these following situations. However, in some situations not described below in the cases, I think it's wrong for the state's anti-discrimination norms to intrude (which is different from saying that it's morally permissible to discriminate based on race or sexual orientation). Thus, if someone refused to date a white person or take a gay person into their home as a room-mate, then that should be permissible since we have good reasons for restricting the reach of the state's power.*
What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies). Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.
But there is at least one problematic conflict that Gallagher alludes to her in piece in NRO, and this is an example of a conflict that does arise with SSM that doesn't arise with antidiscrimination more generally (and it's something Dale should probably discuss): whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).
My tentative sense is that tax-exempt status is something that should probably be revisited more broadly, and in this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. It leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else. I'm not so troubled by that, but I'd also probably be fine with removing tax-exempt status for a whole cluster of third-sector organizations.
*Adoption services: Catholic Charities of Boston refused to place children with same-sex couples as required by Massachusetts law. The group withdrew from the adoption business in 2006.
*Housing: In New York City, Yeshiva University's Albert Einstein College of Medicine, a school under Orthodox Jewish auspices, banned same-sex couples from its married dormitory. In 2001, the state's highest court ruled Yeshiva violated New York City's ban on sexual orientation discrimination and the school now lets same-sex couples live in the dorm.
*Medical services: On religious grounds, a Christian gynecologist in California refused to give his patient in vitro fertilization treatment because she is in a lesbian relationship. (He referred the patient to a partner in his practice group, who agreed to provide the treatment.) The woman sued and the case is pending before the California Supreme Court, which is expected to rule in favor of the lesbian.
*Civil servants: A clerk in Vermont refused to perform a civil union ceremony. In 2001, in a decision that side-stepped the religious liberties issue, the Vermont Supreme Court ruled that he did not need to perform the ceremony because there were other civil servants who would. However, the court did indicate that religious beliefs do not allow employees to discriminate against same-sex couples.
*Wedding services: A same sex couple in Albuquerque asked a photographer to shoot their commitment ceremony. The photographer declined, saying her Christian beliefs prevented her from sanctioning same-sex unions. The couple sued, and the New Mexico Human Rights Commission found the photographer guilty of discrimination and ordered her to pay the couple's legal fees. The photographer is appealing.
*Wedding facilities: Ocean Grove Camp Meeting Association of New Jersey, a Methodist organization, refused to rent its boardwalk pavilion to a lesbian couple for their civil union ceremony. The couple filed a complaint with the state civil rights commission. The commission ruled that the property was open for public use and therefore the Methodist group could not discriminate against gay couples using it. The case is ongoing.
I should add parenthetically that I was both surprised and a bit disappointed by the position taken by the American Jewish Congress' general counsel in yesterday's LA Times. That said, I think it's a mistake to read that op-ed as evidence of that person's (or his organization's) straightforward opposition to SSM. Rather, contra Dale, I think that the op-ed can be read as simply highlighting some of the predictable conflicts and residual costs associated with SSM.
In any event, kudos to Dale for writing such a thoughtful post. It's been a while since I've taken the time to mull some of these conflicts so I'm grateful for the provocation. I'll be curious to hear how others on this blog who are sympathetic to free exercise claims approach these issues normatively.
*One distinguished classmate from law school, now teaching at one of the finest law schools in the South, once argued that there are good reasons for extending anti-discrimination norms even into the market for love such that personal ads should be cleansed of racial preferences; I haven't bought the argument ... yet.
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