Decorative Scales of Justice in the Courtroom

By K. Hollyn Hollman, BJC General Counsel

Hollman HeadshotThe U.S. Supreme Court recently dedicated two days to hearing landmark cases dealing with the rights of same-sex couples. One of those cases, Hollingsworth et al. v. Perry, challenges California’s “Proposition 8,” a law passed by referendum in 2008 that amended the state constitution to deny legal recognition of marriages between same-sex couples. The other case, U.S. v. Windsor, challenges the federal Defense of Marriage Act, known as DOMA, which restricts federal marriage benefits to apply only to opposite-sex couples. Without knowing how these cases will be decided, it is likely that legal rights for same-sex couples will continue to expand. Currently, about a dozen states recognize same-sex marriage. As marriage equality meets with growing acceptance at the state level, familiar questions (and new conflicts) arise about how this sea change will affect the religious freedom of those who have religious objections to same-sex marriage.

Many conversations about religious liberty and same-sex marriage are oversimplified. Some supporters of same-sex marriage dismiss any impact on religious liberty. For them, religious liberty refers to the right of religious communities to define their beliefs and conduct their worship and marriage ceremonies in accord. That right is not endangered by legalizing civil marriage for same-sex couples. Indeed, no state that recognizes same-sex marriage has required churches to host, or clergy to officiate, same-sex weddings, nor would the First Amendment allow it. On the other hand, religious liberty advocates rightly note the constitutionally protected status of religious exercise that includes conduct and belief and extends beyond the confines of home and house of worship. Some of those who have religious objections to same-sex marriage assert free exercise rights to resist treating same-sex relationships on par with traditional marriage in commercial or governmental contexts, even if the state grants legal marital status to same-sex couples.

Religious liberty legal experts and advocates, including some who support same-sex marriage and others who oppose it, have predicted the myriad conflicts for years, offering various approaches for resolution. A handful of thoughtful scholars and practitioners contributed essays to a book called Same-Sex Marriage and Religious Liberty: Emerging Conflicts, published in 2008, that has been part of the policy conversation ever since. Many of the predicted conflicts are now pending in courts and legislatures. In one case on appeal to the New Mexico Supreme Court, a commercial photographer specializing in significant life events such as weddings and graduations refused to offer services to same-sex couples. A rejected customer successfully asserted that the photography business had violated the state’s “public accommodations” law. Such laws ensure that commercial businesses do not discriminate on the basis of protected categories and have long played a crucial role in the advancement of civil rights laws. On appeal, the business and its owners argue that such interpretation of the law violates its rights of free speech and religious freedom. Similarly, the state of Washington has filed a lawsuit against a florist who, citing biblical beliefs, refused to provide services for a same-sex wedding.

Too often what is lost in these understandably impassioned battles are the striking similarities between the claims of each side. As law professors Doug Laycock and Tom Berg have written, “[s]exual minorities and religious minorities make essentially parallel claims on the larger society, and the strongest features of the case for same-sex civil marriage make an equally strong case for protecting the religious liberty of dissenters.” In particular, both same-sex couples and religious believers view their convictions as intrinsic to their very being — things that, as the professors put it, “do not change because the government says they must, or because the individual decides they should.” It is easy to see why many are pessimistic about the possibility of compromise. This type of thinking, however, harms all stakeholders and insults our constitutional tradition of seeking workable solutions that honor universal freedom of conscience.

The barriers to finding common ground are substantial, but they are not insurmountable in all instances. While there are competing interests that require careful consideration, those interests are not necessarily mutually exclusive, and different contexts may produce different solutions. Understanding the similarity of the claims, appreciating the fundamental importance of both religious freedom and marriage rights, and recognizing the rights of others are necessary steps for reducing conflicts during a time of great change.

For more about same-sex marriage from the BJC:
Hollman on Marriage and Freedom from the June 2009 Report from the Capital

Changes in marriage laws renew questions about the role of the church from the Nov/Dec 2014 Report from the Capital

From the May 2013 Report from the Capital. Click here for the next article.

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