Or for poorer? How same-sex marriage threatens religious liberty.

• Author: Severino, Roger

1. INTRODUCTION II. THE EVOLUTION OF SAME-SEX MARRIAGE IN LAW A. The Decades-Long Effort to Strike Down Traditional Marriage Laws Has Been a Consistently Losing One, Until Recently B. By Firmly Establishing Same-Sex Marriage in Law, the Goodridge Decision Opened the Floodgates of Gay Marriage Litigation Across the Country C. The Federal Defense of Marriage Act, Coupled With a Popular Backlash, Has Slowed the Spread of Same-Sex Marriage, For Now 1. DOMA Protects the Traditional Definition of Marriage in Federal Law and Guarantees that the Question of Marriage Is Left to Individual States 2. Lawrence v. Texas Calls the Constitutionality of Federal and State DOMAs into Question III. THE LEGALIZATION OF SAME-SEX MARRIAGE IS GENERATING A MULTIPLICITY OF SERIOUS RISKS FOR RELIGIOUS INSTITUTIONS A. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Civil Liability 1. Religious Institutions that Disapprove of Employees Entering into Same-Sex Marriages Risk Suits Under Employment Anti-discrimination Laws 2. Religious Institutions that Disapprove of Same-Sex Cohabitation Risk Suits Under Fair Housing Laws 3. Religious Institutions that Refuse to Extend Their Services or Facilities to Same-Sex Couples on the Same Terms as Married Men and Women Risk Suits Under Public Accommodation Laws 4. Religious Institutions that Express Their Religious Disapproval of Same-Sex Marriage Publicly Face Potential "Hate Crimes" or "Hate Speech" Liability B. Religious Institutions that Refuse to Treat Legally Married Same-Sex Couples as Identical to Traditionally Married Men and Women Risk Losing Equal Access to a Variety of Government Benefits and Privileges 1. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Losing Their Traditional Tax-Exempt Status 2. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from Competition for Government-Funded Social Service Contracts 3. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from Government Facilities and Fora 4. Religious Institutions that Refuse to Recognize Same-Sex Marriages Risk Exclusion from the State Function of Licensing Marriages IV. CONCLUSION APPENDIX A: SELECT FAILED CHALLENGES TO TRADITIONAL MARRIAGE APPENDIX B: SELECT STATE RELIGIOUS EXEMPTIONS TO CERTAIN CATEGORIES OF DISCRIMINATION APPENDIX C: SELECT STATE ANTI-DISCRIMINATION STATUTES WITHOUT RELIGIOUS EXEMPTIONS "[T]he right to same-sex marriage conferred by the proposed legislation may potentially conflict with the right to freedom of religion...." Supreme Court of Canada, December 9, 2004. (1)

1. INTRODUCTION

   On May 17, 2004, same-sex marriage became a legal reality in America. One hundred and eighty days earlier, the Massachusetts Supreme Judicial Court had mandated this result in the case of Goodridge v. Department of Public Health, (2) and in so doing, unleashed a nationwide wave of litigation and political controversy that has yet to subside. In Goodridge, the court decreed that the state's traditional definition of marriage, which consisted exclusively of one man and one woman, was "irrational" and discriminated against gays and lesbians so invidiously that it violated state equal protection guarantees. (3) Although the decision carried with it profound implications for religious liberty, (4) the Goodridge court dismissed any religious freedom concerns with the following conclusory footnote:

   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. (5) Simply put, the Massachusetts Supreme Judicial Court's confidence is misplaced. The movement for gay marriage is on a collision course with religious liberty. This Article explores the coming clash.

   The conflict between gay rights and religious liberty over marriage seems inevitable because of four concurrent phenomena. First, marriage, as a uniform concept, pervades the law; (6) second, religious institutions are regulated, both directly and indirectly, by laws that turn on the definition of marriage; third, religion has a historic public relationship with marriage that resists radical change as a deep matter of conscience; and fourth, gay marriage proponents are similarly resistant to compromise since many believe, with the Goodridge concurrence, that "[s]imple principles of decency dictate that we extend to [same-sex couples], and to their new status, full acceptance, tolerance, and respect." (7)

   Although it is difficult to predict with certainty the long-term effects of this profound change in the law, it is clear that the effects will be far-reaching. The legal definition of marriage does not exist in isolation; changing it alters many areas of the law. For example, the definition of marriage plays an important role in the law of adoption, education, employee benefits, employment discrimination, government contracts and subsidies, taxation, tort law, and trusts and estates. In turn, these legal regimes directly govern the ongoing daily operations of religious organizations of all stripes, including parishes, schools, temples, hospitals, orphanages, retreat centers, soup kitchens, and universities. Moreover, current law provides little room for non-uniform definitions of marriage within a state and even across states because of difficult questions like child custody. (8) The high stakes reinforce the uncompromising posture of the contending sides.

   Changes in marriage law impact religious institutions disproportionately because their role is so deeply intertwined with the institution of marriage. Indeed, religious institutions have been regulating marriage since time immemorial. (9) Civil and common law marriage in the West evolved through adopting and accommodating religious conventions. (10) This history is reflected today; a solid majority of civil marriages are still legally solemnized by religious institutions. (11) Because of the undeniable centrality of marriage to civic and religious life, conflicts will inevitably arise where the legal definition of marriage differs dramatically from the religious definition. As this Article explains, recent trends in gay rights and anti-discrimination law make it anything but clear that this conflict will be resolved in favor of religious liberty.

   The specific consequences that will likely flow from legalizing same-sex marriage include both government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage. In other words, wherever religious institutions provide preferential treatment to traditionally married couples, state laws will likely require them to either extend identical benefits to same-sex married couples or withdraw the benefits altogether. Correspondingly, as courts elevate same-sex marriage in the hierarchy of constitutional rights, state actors will be induced if not required to treat opposition to same-sex marriage as "invidious discrimination," "irrational," or "motivated by animus." Thus, religious bodies retaining such "discriminatory" beliefs will be subject to a wide range of legal impediments precisely because their policies reflect those beliefs. (12) In short, governments would be prone to sanction uncooperative religious institutions both directly and indirectly--by imposing outright civil liability and by excluding the institutions from government programs and benefits.

   Religious institutions will be able to assert a wide range of substantial First Amendment defenses against these kinds of sanctions. (13) The Free Exercise Clause ought to apply, at least prima facie, to prohibit the government from targeting religious institutions for special disfavor based on their religious beliefs. (14) The Free Exercise Clause also prevents government from imposing substantial burdens on religious expression using laws that embody discretion and allow for individualized assessment and application. (15) The Free Exercise Clause and the Establishment Clause together operate to prohibit the government from interfering with the internal doctrine, discipline, and governance of religious institutions, including interference with decisions to hire or fire those who teach the faith. (16) The Free Speech Clause has worked to prohibit the government from discriminating against a religious institution's viewpoint on sexuality in certain fora, (17) and also to protect the right of religious institutions to retain their expressive character through their own membership policies. (18)

   It is difficult, however, to predict the ultimate effectiveness of these constitutional defenses after several years of precedents eroding religious liberty. Since the Supreme Court's decisions in Employment Division v. Smith (19) and Locke v. Davey (20) narrowed long-standing religious liberty protections, courts have been increasingly hostile to claims under the Free Exercise Clause. Simultaneously, courts have become increasingly sympathetic to the notion of same-sex marriage as a protected right that may override other constitutionally important concerns. (21) The movement for same-sex marriage has been driven overwhelmingly by courts, not legislatures, and courts have been demonstrably willing to set aside even substantial precedent in the context of gay rights. In fact, after Lawrence v. Texas, (22) the U.S. Supreme Court has cast doubt on the survivability of any statute that appears to put homosexual relationships on less than equal footing with heterosexual ones--making the Defense of Marriage Act ("DOMA") particularly vulnerable to attack. (23)

   Religious institutions will soon face serious legal risks that include the substantial possibility of civil liability and targeted...