The following piece for our same-sex marriage symposium is written by Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law (Minnesota). He has written numerous articles on religion, law, and constitutional law; four books, including Religion and the Constitution (Aspen, with McConnell and Garvey) and The State and Religion in a Nutshell (ThomsonReuters); and many briefs in the Supreme Court and appellate courts.

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Civil recognition of same-sex marriage is spreading. Four state legislatures, plus the District of Columbia, and one state court have successfully taken the step, with more likely to follow. Arguments against gay marriage have declined in public appeal in recent years; warnings that it will undermine marriage seem abstract to more and more people in the face of same-sex couples pursuing committed relationships and raising children.

The question in Perry v. Schwarzenegger and Windsor v. United States is whether this emerging situation should lead the courts "“ ultimately, the U.S. Supreme Court "“ to declare opposite-sex-only marriage unconstitutional. To say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the Constitution.

In making that distinction, one could raise arguments about proper methods of constitutional interpretation, or warn about political blowback that aggressive judicial decisions can trigger (as even some pro-choice observers have remarked about Roe v. Wade). I focus, however, on a different reason for the Court to tread gently in Perry: the religious liberty of traditionalist objectors to gay marriage, and how legislative recognition of marriage may be a better vehicle than judicial rulings for balancing religious liberty and gay rights. (I belong to a group of scholars, including symposium participant Robin Wilson, who have proposed model religious- accommodation provisions to legislatures considering same-sex marriage; my opinions here should not be attributed to those colleagues.)

For all of Judge Walker"™s lengthy fact-finding in Perry, he utterly fails to take religious-liberty issues seriously. He notes that "[p]rior to Proposition 8, no religious group was required to recognize marriage for same-sex couples." That is true about the church wedding, but there are many other potential conflicts (detailed, for example, here). Antidiscrimination and public-accommodation laws in California and other states could force many religious non-profits to give direct assistance to marriages or ceremonies that violate their tenets. Catholic Charities ceased providing adoptions in Massachusetts and, to a large extent, San Francisco because it faced being compelled to place children in same-sex households. A religious college that provides married-student housing might violate state law if it refused to house same-sex married couples. These groups can face civil liability or the loss of generally available government benefits such as tax exemptions or licenses.

Marriage ceremonies also affect small businesses "“ wedding planners, caterers "“ in which individuals directly lend their personal skills to facilitate marriages. An Albuquerque, New Mexico, wedding photographer had to pay more than $6600 in legal fees for declining to photograph a same-sex commitment ceremony. In short, religious liberty is a context where gay marriage may affect others directly.

The adoption and photographer cases arose before same-sex marriage, under preexisting laws against sexual-orientation discrimination. (As Judge Walker notes, California already recognizes domestic partnerships and prohibits discrimination against them.) But recognizing same-sex marriage without significant religious accommodations will multiply the conflicts, since some traditionalists have particular objections to marriages because of the term"™s religious significance. Affirmative recognition of marriage, without accommodation, may also intensify the idea that opposition to homosexuality is so far beyond the pale that it deserves almost no accommodation. Consider the race context: in Bob Jones University (1983) the Supreme Court held that the long list of laws against race discrimination, covering mainstream education and employment markets, showed the existence of a "firm national policy" that justified extending penalties against an insular fundamentalist college that surely had no effect in such markets. There is plenty of reason to think that religious dissenters, organizations, and individuals will more frequently face the Hobson’s choice between directly facilitating same-sex marriages and giving up their charitable activities or livelihoods.

It is possible to minimize these conflicts: to protect religious liberty for many traditionalist dissenters while ensuring that gay couples have full ability in practice to marry and build families. The Albuquerque couple presented no evidence they incurred costs in finding another wedding photographer in the phone book. In Massachusetts, as Dale Carpenter has noted, "[g]ay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself."

As Robin Wilson"™s symposium contribution will detail, state legislatures that have enacted gay marriage have all acknowledged and accommodated religious-liberty concerns to some extent. Some states have protected religious organizations beyond the immediate context of celebrating or hosting a marriage ceremony. Others have protected fraternal societies, like the Knights of Columbus, that might object to hosting a wedding or reception. New York protected, among other things, against depriving an organization of generally available government benefits such as tax exemptions or licenses.

Although some of these accommodations could have gone further, they still serve the purpose of reducing social conflict by letting both sides in the culture war "live and let live." But before I turn to the relative roles of legislatures and courts in striking such balances, let me briefly add why recognizing gay marriage with significant religious-liberty protections is not just politically expedient but morally principled. Even though gay marriage and religious liberty clash in particular disputes, the arguments for the two have important common features. As I"™ve argued elsewhere, the strongest arguments for recognizing same-sex civil marriage also support giving significant protection to religious dissenters.

Among the parallels, both same-sex couples and religious believers claim that their conduct stems from commitments central to their identity: love and fidelity to a life partner, faithfulness to the moral norms of God. Gay couples claim that it is insensitive, even cruel, to tell them their conduct is separate from their orientation "“ but so too, religious believers claim it is insensitive to tell them they can keep their beliefs but can"™t act on them. Both groups also claim that they should be able to live their commitments in a public way, touching all aspects of their lives. Gay couples claim a right beyond private behavior "“ participation in the social institution of civil marriage "“ but so too do religious believers who seek to follow their faith not just in houses of worship, but in charitable efforts and in their daily work lives.

These arguments suggest that religious accommodation ought to protect not just churches and clergy, but also religious nonprofit organizations like Catholic Charities, in contexts beyond the ceremony itself such as adoption or marriage counseling. Accommodation in the commercial sphere is typically more limited, but it can extend to small, personal businesses like the wedding photographer, with an exception in cases "“ for example, small rural markets "“ where one religious objector’s refusal of services would cause a concrete hardship on the ability of the same-sex couple to marry.

Unfortunately, courts that have found a constitutional right to same-sex marriage have been blind to the range of religious-liberty issues. Like Judge Walker, the California Supreme Court in In re Marriage Cases (2008) found that same-sex civil marriage "will not impinge upon the religious freedom of" anyone, for two reasons: "no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs." The first reason overlooks the reach of antidiscrimination and public-accommodations laws; the second indefensibly limits religious-freedom concerns to the church ceremony and the clergyperson.

It"™s understandable that judges ruling on gay marriage would avoid opining on the whole range of possible conflicts with religious liberty. Courts by nature discuss only the precise issues before them. But the narrow judicial references also reflect that constitutional doctrine on the free exercise of religion has become quite weak. Both the U.S. Supreme Court, in Employment Division v. Smith (1990), and the California Supreme Court, under the state constitution, have held that courts should not order an accommodation from "laws of general applicability" that are formally neutral toward religion. Presumably, this includes laws prohibiting discrimination against same-sex couples.

Therefore, once the California Supreme Court ordered same-sex marriage, voters could understandably lack any confidence that religious-liberty concerns would ultimately be addressed and given weight. In that context, I believe, voters had a rational basis for rejecting same-sex marriage. As the Becket Fund for Religious Liberty argued in an amicus brief in Perry, "Since the California Supreme Court left Californians with an all-or-nothing choice between same-sex marriage and full protection for the rights of conscience, Proposition 8 was an entirely rational response to the threat to religious liberty." Concern for religious liberty in no way amounts to irrational bigotry or prejudice; it stems from a fundamental value in our constitutional and political system. That courts are unwilling to protect religious exercise vigorously in constitutional cases is a reason for "“ not against "“ protection of that right through political decisions (the U.S. Supreme Court in Smith expressly invited the political branches to accommodate religion).

Although I think Proposition 8 was therefore rational, it would be fairer to all to recognize gay marriage and accommodate religious liberty. The record shows that legislatures have done better than courts in striking this balance. That makes sense for institutional reasons: while a court focuses on the case before it, a legislature can take evidence on the range of situations that might be affected by its action. One by one in recent years, legislatures have acted as "laboratories of experimentation" and provided data, however imperfect, on how best to balance religious liberty with access to marriage. I believe that legislative superiority in striking such balances is one reason why legislation recognizing same-sex marriage is preferable to constitutional decision-making "“ preferable especially to a single decision by the U.S. Supreme Court requiring equal marriage in all fifty states.

If courts declare gay-marriage rights, however "“ whether state courts or the U.S. Supreme Court "“ they must do a better job on religious liberty than they have so far. They should expressly acknowledge the broad range of potential conflicts. And if they are not going to order religious accommodations as constitutional mandates, they should expressly encourage state legislatures to consider them as wise policy.

Recommended Citation: Thomas C. Berg, Same-sex marriage and religious liberty, SCOTUSblog (Aug. 16, 2011, 9:08 AM), https://www.scotusblog.com/2011/08/same-sex-marriage-and-religious-liberty/