Opting out in the name of God: will lawyers be compelled to handle same-sex divorces?

• Author: Piatt, Bill
• Position: My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights

1. Introduction

   In June 2015 the Supreme Court of the United States determined, by a 5-4 ruling in the case of Obergefell v. Hodges, (1) that same-sex couples have a constitutionally guaranteed right to marry. (2) Soon thereafter, a same-sex couple applied for a marriage license in Rowen County, Kentucky. (3) Kim Davis, the Rowen County clerk refused to issue the license, citing her own religious beliefs. (4) The couple brought suit against Ms. Davis, and she was ordered by a federal district judge to issue the license. (5) When she refused, she was held in contempt, and jailed for five days. (6) Ultimately U.S. District Judge David Bunning ordered Ms. Davis' deputies to issue the license in her stead. (7) Ms. Davis' actions brought her a great deal of notoriety. (8) Some of the publicity was positive with her actions being characterized "heroic," while others considered her to be a "homophobe," or a "Hitler." (9) While certainly dramatic, Ms. Davis' case was not the first time in recent history that courts or administrative bodies have imposed sanctions against citizens or private business operators who declined to provide goods or services to same-sex couples. (10)

   In 2013, the Supreme Court of New Mexico considered a matter involving a photographer who had declined to photograph the commitment ceremony of one woman to another. (11) The photographer, Elaine Huguenin, indicated that she was "personally opposed to same-sex marriage and will not photograph any image or event that violates her religious beliefs." (12) The customers filed a discrimination complaint against the photographer with the New Mexico Human Rights Commission. (13) They alleged that the photographer had engaged in discrimination that violated the provisions of the New Mexico Human Rights Act. (14) The Act precludes discrimination by public accommodations on the basis of sexual orientation. (15) The New Mexico Human Rights Commission ruled against the photographer. (16) The photographer appealed, asserting that her constitutionally-protected First Amendment rights to the free exercise of her religion and expression allowed her to decline to participate in the event. (17) A state district judge granted the customer's motion for summary judgment. (18) The New Mexico Court of Appeals affirmed the ruling against the photographer and in favor of her customers, as did the Supreme Court of New Mexico. (19)

   Also in 2015, the Bureau of Labor and industries of the State of Oregon considered a case involving a baker who declined to make a wedding cake for a same-sex couple. (20) The Commissioner determined that the bakery owners had violated the Oregon statute prohibiting discrimination in public accommodations on the basis of sexual orientation. (21) In addition, the Commissioner awarded money damages to the complainants in the total sum of $135,000, signifying compensatory damages for emotional, mental, and physical suffering resulting from the denial of service. (22)

   These are but a few of the cases which have been brought against public officials and private individuals who have declined to provide services in the manner described so far. (23) Undoubtedly, more will follow. As Chief Justice Roberts notes in his dissenting opinion in the Obergefell case:

   Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage--when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. (24) The cases which have arisen so far, and the observations by Chief Justice Roberts, raise an important issue for lawyers. Is it possible that attorneys who decline on religious grounds to provide legal services to same-sex individuals seeking divorces will be ordered to provide that representation? Might those attorneys be sanctioned if they fail to do so? An analysis of these issues will involve an examination of the lawyer's role as both a private practitioner and also as an officer of the court. It will involve a discussion as to whether legal services are "public accommodations" for purposes of human rights acts. It will require an examination of legal ethics rules and principles. It will necessitate examination of the power of courts to order attorneys to represent clients. And, of course, it will require an examination of the constitutional and statutory protections afforded to the religious beliefs and practices of attorneys. These are novel and difficult questions, but they are questions that will undoubtedly be raised. Attorneys need to consider them before the questions arise in their practices.

   Before examining the potential obligations of attorneys in this controversy, we turn first to a brief exploration of the right of Americans to "opt out" of performing what otherwise would be a legal duty when their religious beliefs preclude that participation. We must also consider limitations on that right. Obviously, emotions run high, as do political considerations, on all sides of this current debate. It might be helpful from the outset, however, to recognize that this is not the first time in American history that we have witnessed a clash between religious beliefs and government duties imposed in a highly-charged environment. (25) The cases are voluminous, and an examination of each is beyond the scope of this article. Nonetheless, we turn to a brief attempt to understand some of this history by quickly considering some areas where religiously-based conscientious objections have been raised to government mandates.

   1. A Right to Opt Out?

      1. The Draft

         Kim Davis is not the first person from Kentucky to be cast into the national spotlight for refusing to perform a government-required duty because of a religious objection to it. On October 1, 2015, Sports Illustrated inaugurated its Muhammad Ali Legacy Award in Ali's Kentucky hometown. (26) Ali was not always regarded in such a positive light. In the Olympic games of 1960, Ali, who was then known by his birth name of Cassius Clay, Jr., won the gold medal in the 175-pound division. (27) Four years later he defeated Sonny Liston and became the heavyweight champion of the world. (28) Clay's victory was surprising, because of his decided underdog status in that fight. (29) He stunned the country again by announcing two days after the fight that he had become a member of the Nation of Islam. (30) Then on March 6, 1964, he announced that hereafter he would be known as Muhammad Ali. (31)

         Over the course of the next four years, Ali successfully defended his crown against numerous opponents. (32) However, 1967 found this country in the midst of the Vietnam War and an increasingly unpopular mandatory draft. (33) On April 28, 1967, Ali refused to be inducted into the armed forces of the United States. (34) He cited his religious belief as the basis. (35) Ali's religious claim was made even more controversial by his acknowledgment that while he would fight in an Islamic holy war, he would not fight for the United States in Vietnam. (36) At the time, "conscientious objectors" would only qualify for exemption if they stated that their religious beliefs precluded them from participating in any war. (37)

         Ali's administrative appeal to the Kentucky Appeal Board was denied and the case ultimately reached the Supreme Court of the United States. (38) The Court agreed with Ali. (39) He went on to regain the title that had been stripped from him as a result of his refusal to participate in the draft, but he had lost four years, perhaps the best four years, of his career. (40)

         It is important not to understate the intensity of the debate that raged around this case. While the Kim Davis matter has attracted national attention and controversy, at the time of the Ali matter, the country was involved in the increasingly unpopular Vietnam War. College campuses were in turmoil and demonstrations rocked the country. (41) Yet, the Supreme Court upheld the religious based conscientious exemption, and applied it to allow a very high profile sports combatant to decline to participate in military combat. (42) And Ali's case was not the only situation where the Supreme Court recognized the validity of a religious or ethically based objection to induction into the draft. (43)

      2. The Workplace

         The cases recognizing a religious exemption for workers in various contexts are voluminous, and are based not only on statutory concerns but on the First Amendment's Free Exercise of Religion Clause. (44) Illustrative of the latter is the case of Sherbert v. Verner (45) In Sherbert, a claim by a Seventh-Day Adventist for workers compensation benefits in the State of South Carolina was denied. (46) South Carolina barred workers from receiving benefits who failed, "without good cause ... to accept available suitable work when offered." (47) The worker had refused, because of her religion, to take a job which would have required her to work on Saturdays. (48) The Court concluded that, "[governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." (49) Ultimately, the Court determined that disqualification of her benefits imposed a non-constitutionally permissible burden on the free exercise of her religion. (50)

         On the other hand, in a 1990 case, the Supreme Court determined that the state of Oregon could criminalize even the religiously inspired use of peyote. (51) It could deny unemployment benefits to employees who were discharged for possession of that drug, even in the face of their...