Vows to collide: the burgeoning conflict between religious institutions and same-sex marriage antidiscrimination laws.

• Author: Bold, Fredric J., Jr.

[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples.... (1)

California Supreme Court majority opinion, In re Marriage Cases, 2008

INTRODUCTION I. THE RELIGIOUS NATURE OF MARRIAGE II. THE CHALLENGE OF SAME-SEX MARRIAGE TO LEGITIMATE RELIGIOUS DISSENT A. The Multifaceted Nature of Religious Activity B. Challenges to Religious Institutions Opposed to Same-Sex Marriage III. THE FREE EXERCISE DEFENSE A. One View of the Text and Intent of the Free Exercise Clause B. Supreme Court Free Exercise Jurisprudence C. Problematic Application to the Ocean Grove Case IV. THE EXPRESSIVE ASSOCIATION DEFENSE A. Doctrinal Overview B. Application of the Expressive Association Defense to the Ocean Grove Case C. Application of the Expressive Association Doctrine to the Ocean Grove Case According to Justice Stevens's Dale Dissent. D. Implications of the Expressive Association Doctrine for Religious Institutions CONCLUSION INTRODUCTION

A picturesque, seaside pavilion in Ocean Grove, New Jersey, owned and controlled by United Methodists since its creation in 1870, is described in its charter as a "portion of land skirting the sea, consecrated to sacred uses and with a single eye to the Divine Glory." (2) Almost 150 years later, this one-time site of religious revival meetings has become one of the many flashpoints nationwide between religious groups supporting the traditional definition of marriage and same-sex marriage proponents seeking to enforce antidiscrimination laws. Despite the Methodist group's desire that no one use its pavilion for activities directly contrary to its religious identity, New Jersey's Division on Civil Rights held in January 2009 that the Methodists must allow a lesbian couple to use the pavilion for their same-sex civil union ceremony. (3) This finding is the subject of ongoing litigation in federal court. (4) Using the Ocean Grove case as a prototypical harbinger of future conflicts, this Comment explains why same-sex marriage antidiscrimination laws pose a genuine and sincere theological problem for many religious institutions and explores some of the possible First Amendment defenses with which religious institutions might respond to such laws.

For religious groups of all stripes, a case like the pavilion controversy in Ocean Grove is anything but an isolated anomaly; it is instead a signal of an increasingly frequent wave of conflicts between same-sex marriage proponents and traditional religious organizations. The same-sex marriage movement has rapidly gained steam through landmark state supreme court rulings establishing a constitutional right to same-sex marriage or civil union despite the movement's limited success in legislative spheres and, indeed, against legislative attempts to limit its spread. (5)

To be sure, the same-sex marriage movement has been a study in fits and starts. The movement's first wave began in 1993, when state courts in Hawaii, (6) Alaska, (7) and Vermont (8) recognized a constitutional right to same-sex marriage or civil unions. Answering this judicial activity, voters in Hawaii and Alaska passed state constitutional amendments overturning the decisions. Continuing the movement yet again a decade later--and with seemingly even greater momentum and success since 2006--Massachusetts, (9) New Jersey, (10) California, (11) and Connecticut (12) followed suit in recognizing same-sex marriage. In 2009, Iowa, (13) the District of Columbia, (14) and Vermont (15) became the most recent additions to the same-sex marriage column, the latter two by legislative rather than judicial action.

Some states, however, have successfully fought back against some of the judicially created same-sex marriages. Between 2004 and 2006, in the wake of the Massachusetts decision, eighteen states passed state constitutional amendments limiting marriage to heterosexual couples. (16) More recently, in November 2008, voters approved state referenda banning same-sex marriage in California, Arizona, and Florida. (17) The Arizona amendment prevailed after having been defeated in 2006--the first time an amendment to ban same-sex marriage had been defeated. (18) In California, the state supreme court upheld Proposition 8 as a valid state constitutional amendment in May 2009, but Ted Olson and David Boies have initiated a federal suit challenging the ban on federal equal protection grounds. (19) Evident in this conflicting and messy recent history is every indication that, at least for the foreseeable future, same-sex marriage will be a reality alongside which religious institutions will have to operate.

While same-sex marriage has made similar inroads in other countries around the world, (20) the particular challenge facing same-sex marriage in the United States is its reception into such an historically and enduringly religious context--in particular, a context where homosexuality has traditionally been opposed on religious grounds. (21) Unlike in other industrialized nations--consider the almost completely secularized countries of Western Europe--Americans continue to exhibit high rates of religious belief, practice, worship attendance, and service. (22) In addition to the history and continuing private practices of citizens, freedom of religion has been legally enshrined in the First Amendment to the U.S. Constitution; (23) it is even popularly known to some as America's "first freedom," because it is the first protection enumerated in the Bill of Rights. (24) Despite the claim of some that religion, even in America, is undergoing an inevitable decline, plenty of evidence suggests otherwise. (25)

In addition to the nation's pervasive religious character, Americans have historically conceived of marriage in both law and society as a sacred, religious, and pre-political institution that is the foundation of society. In his influential Commentaries on American Law, Chancellor James Kent observes that "[t]he primary and most important of the domestic relations is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race." (26) The belief in the power of traditional marriage originated in the United States not only through the mostly homogenous Christian beliefs about marriage in the late eighteenth century but also because the American founders understood "the symbiotic connection between family virtues and civic virtues" and believed that traditional marriage was a way to sustain the virtue necessary for the smooth running of the Republic. (27)

Amidst an enduringly religious population and against such a deeply rooted institution as traditional marriage, common sense suggests that the introduction of same-sex marriage into American law would represent anything but a seamless transition. Contrary to that supposition, same-sex marriage proponents--even some of the state courts responsible for constitutionalizing same-sex marriage--are optimistic about the ease of transition. In its majority opinion in In re Marriage Cases, the California Supreme Court predicted that "affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples." (28) Similarly optimistic, the 2004 Goodridge Court in Massachusetts declared, "Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage." (29)

Yet the notion that expanding the definition of marriage to include same-sex couples will "not impinge upon" religious freedoms is difficult to square with reality on the ground. (30) In a world where same-sex marriage did not impinge upon religious freedoms, the United Methodists who own the pavilion in Ocean Grove would not be forced to rent their facility for a same-sex civil commitment ceremony.

The foundation of this Comment is the belief that the legalization and spread of same-sex marriage will indeed have far-reaching and profound effects on religious liberty, particularly on the rights of many religious institutions that oppose same-sex marriage and wish to avoid appearing to endorse such marriage through compelled compliance with prospective same-sex antidiscrimination laws. There are a host of areas in which conflict seems likely: violations of antidiscrimination laws in public accommodations, employment, housing, education, or charitable services; (31) loss of tax-exempt status for violating "public policy"; (32) and violation of hate-crime laws, (33) just to name a few. Absent explicit statutory exemptions for religious institutions, the possibility for serious conflict exists. (34)

Rather than catalog the countless foreseeable legal conflicts between same-sex marriage and religion, as others have done, (35) this Comment seeks to explore in greater depth the seriousness of the challenge to religious activity and to assess some potential First Amendment defenses with which a confronted religious actor or institution could respond, paying particular attention to the likeliest successful argument: the right to expressive association.

Part I discusses why marriage is a fundamentally religious--not just social or political--issue on which religious institutions have a particularly justifiable desire to advance and protect their theological viewpoint. Part II emphasizes the breadth of religious activity in the United States as a prelude to revealing the particular ways...