RELIGIOUS LIBERTY, DISCRIMINATION, AND SAME-SEX MARRIAGE: ESCAPING THE OBERGEFELL CATCH-22.

• Author: Bradley, Timothy

INTRODUCTION

In the course of holding that same-sex couples have a constitutional right to marry, the Supreme Court in Obergefell v. Hodges reassured opponents of its majority decision that "[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here." (1) The Court's opinion was released on June 26, 2015. (2) Earlier that year, the owners of a small pizza parlor in Walkerton, Indiana, became embroiled in a national media controversy after telling a reporter from half an hour up the road in South Bend that, if asked to cater a same-sex wedding ceremony with pizza, they would have to decline because participating in or facilitating such a celebration would violate their Christian faith. (3) In so declining, Crystal and Kevin O'Connor explained, they would not intend to discriminate against anyone but would merely seek to operate their business in a manner consistent with the tenets of their faith. (4) The owners further clarified that they would never refuse service to anyone--gay or straight, Christian or atheist--who came into their restaurant to eat on account of their individual identity. (5) In other words, the owners simply sought to avoid complicity with an activity--same-sex marriage--that they deemed immoral, a falsification of what they understood marriage to be. Yet the O'Connors were forced to close their pizzeria for eight days due to the national media attention, protests, and threats they received after the story broke. (6) After reopening for a few years when the controversy died down a bit, the pizzeria closed for good in the spring of 2018. (7)

Episodes like this one call into question whether the majority's words of consolation in Obergefell are anything more than a parchment barrier protecting those who dissent from the understanding of marriage ratified in that decision and who seek to live out that dissent with integrity in their daily lives. The national reaction to the O'Connors' hypothetical refusal to serve pizza for a same-sex marriage vividly illustrates that many Americans do not believe the principles and judgments motivating refusals to participate in same-sex marriages to be "decent and honorable." For many, the issue is black and white: disagreement in this arena constitutes invidious discrimination that the law should root out, or at least not protect. (8) In the case of Memories Pizza (the O'Connors' shop), not a single person was denied goods or services or suffered any kind of material harm due to the proprietors' religious objections to serving pizza for same-sex weddings. Further, since the situation arose from a reporter's hypothetical question rather than a sincere request from a flesh-and-blood couple, no same-sex couple suffered any dignitary harm from interacting with pizzeria owners who judged their relationship immoral. Despite this absence of legally cognizable harms, cultural pressures led to the temporary closure of a small-town business.

This Note will explore the tension between Justice Kennedy's words in Obergefell regarding the decent and honorable premises behind the judgment of many Americans that same-sex marriage is immoral (or, strictly speaking, impossible), (9) and the treatment afforded to those who attempt to live out those supposedly decent and honorable beliefs in the public square--bakers, (10) florists, (11) photographers, (12) pizza connoisseurs, (13) and more. It will assess the relationship between religious liberty, freedom of speech, and antidiscrimination laws by focusing on issues in the realm of sex and marriage, though complicity claims like the ones explored here arise in various other contexts, including at the intersection of health care, abortion, and contraception. (14)

The Note advances two main arguments for honoring complicity claims--claims against being made complicit in others' conduct that one judges to be immoral or in expressing a message that one judges to be false--such as those advanced by Jack Phillips, the proprietor of Masterpiece Cakeshop. First, the Note argues that those making such complicity claims have a strong interpretive and conceptual argument that their conduct, rightly understood and described, falls outside the scope of the relevant antidiscrimination laws. Second, even if one disagrees with that argument and concludes that such cases do come within the ambit of the relevant antidiscrimination laws, there are strong reasons, rooted in the nature of religious liberty and the purpose of antidiscrimination law, against applying those laws to these actors and instead exempting them from their coverage by amending such laws and providing for such exemptions in future laws. (15)

Part I will examine the underpinnings of the right to religious freedom and defend its continued relevance and importance in the American constitutional order. Part II will discuss the purpose of antidiscrimination law generally and focus in particular on a type of antidiscrimination law aimed at protecting gay, lesbian, bisexual, and transgender people from discrimination: sexual orientation and gender identity (SOGI) laws. Part III will explore two cases concerning conscience-based refusals by bakers to supply goods for celebrations of same-sex marriages--Masterpiece Cakeshop v. Colorado Civil Rights Commission (16) and Lee v. Ashers Baking Co. (17)--and argue that complicity claims in such cases are best understood as not constituting discrimination based on a protected trait. Such complicity claims are thus outside the scope of typical SOGI laws. Part III will conclude by applying the insights gleaned from the first two Parts by underscoring the importance of enacting additional protections into law to reinforce the protections provided by the First Amendment and Religious Freedom Restoration Act so that those who object to being made complicit in the celebration of same-sex marriages are not pressured to do so as a condition of remaining in business.

The great task and challenge of our political order, Michael McConnell writes, "is to distinguish between the freedom that must be left to human beings if they are to exercise the virtue of freely choosing the right, and the elements of justice that must ultimately be enforced and compelled by government." (18) Determining which side of that line complicity claims fall on--whether the state must honor them so that men retain freedom to choose the right, or whether justice requires that the state punish these conscience-based refusals to facilitate activities protected by law--is an important and timely task.

1. RELIGIOUS LIBERTY: OUR FIRST FREEDOM

   Before relegating complicity claims rooted in religious and moral ideas to second-class status relative to claims under SOGI laws, we ought to at least be clear on why religious liberty mattered so much to those who shaped our constitutional order and why the goods protected by religious liberty are worthy of continued and even special protection.

   This Part proceeds by first situating religious liberty in our broader political history before discussing the individual interests protected by it and some of the social benefits that flow from prizing it. Those incidental benefits include the capacity of respect for religious liberty to unsettle political victories, lead to cultural and legal change, and cause one to scrupulously reexamine one's own views due to opposing arguments from others. While one prong of the argument in this Note aims to establish that complicity claims do not fall within the scope of SOGI laws, in which case there is no need for religious exemptions for those raising the claims, the discussion in this Part provides relevant reasons why such claimants ought to be granted exemptions from such laws if the laws, absent explicit exemptions, are instead read to cover their conduct.

   1. Situating Religious Liberty

      Religious liberty is often referred to as our first freedom. (19) While its appearance first in the Bill of Rights is historically only an accident, (20) there is nevertheless a strong argument that religious liberty has a sort of priority among our sundry freedoms. (21) James Madison argued in his Memorial and Remonstrance that "[i]t is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and. degree of obligation, to the claims of Civil Society." (22) Religious liberty is grounded not so much in personal autonomy but in the duty of man to live in harmony with whatever greater-than-human source of meaning and order exists in the universe. (23) Madison's grounding of religious freedom in the duty of each man to worship the Creator as he sees fit is not dissimilar to the argument put forward in Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom. (24) There the fathers of the Council explain that it accords with the dignity of man as a being endowed with reason and free will that he "should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth," and that men are "bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth." (25) For men to discharge these obligations they must "enjoy immunity from external coercion as well as psychological freedom," and this right to religious freedom protects even those who are deficient in pursuing the truth or who do not realize the fullness of truth, "provided that just public order be observed." (26) This proviso that just public order be preserved is important and reminds us both that there are limits to the scope of the right to religious liberty and that protection of the political common good can sometimes require the state to decline to honor a religious liberty claim. (27) The freedoms of...