An Uneasy Union: Same-sex Marriage and Religious Exemption in Washington State

• Publication year: 2021

AN UNEASY UNION: SAME-SEX MARRIAGE AND RELIGIOUS EXEMPTION IN WASHINGTON STATE

Peter Dolan

Abstract: Same-sex marriage promises to be one of the defining issues of the twenty-first century. While supporters of same-sex marriage have welcomed a shift in the public's perception and increasing acceptance of same-sex marriage in the last decade, controversy remains over how to balance the competing rights between marriage equality and religious freedom. While most same-sex marriage statutes around the country include religious exemptions for religious officials, it is unclear how, or whether, these protections should extend to wedding service providers who have a religious objection to same-sex marriage. Conflicts between same-sex couples seeking wedding services and wedding service providers who have religious objections to same-sex marriage are inevitable, and despite the relatively recent legalization of same-sex marriage in Washington, such conflicts have already occurred and will undoubtedly continue to take place in the future. In order to balance these competing rights, this Comment argues that the Washington Legislature should adopt a "refuse and refer" method that allows wedding service providers with a religious objection to same-sex marriage, in limited circumstances, to decline to provide wedding services to same-sex couples. Such a solution would safeguard the dignitary interests of same-sex couples while also protecting wedding service providers with deep-seated religious objections to same-sex marriage from litigation for refusing to provide wedding services to same-sex couples.

INTRODUCTION

On February 13, 2012, Washington Governor Christine Gregoire signed Senate Bill 6239 into law, legalizing same-sex marriage in Washington for the first time.(fn1) A referendum challenge to the new law was launched almost immediately, giving Washington's citizens an opportunity to decide the same-sex marriage question themselves by popular vote.(fn2) Washington's citizens exercised this right and approved Referendum 74 on November 6, 2012.(fn3) Hard-fought by both sides of the same-sex marriage debate,(fn4) the passage of Referendum 74 was by no means certain and was merely one step in the long journey of incorporating same-sex marriage into the laws and social mores of Washington's residents. While proponents of same-sex marriage hailed the passage of Referendum 74 as a step in the direction of equality of marriage for all,(fn5) those opposed to same-sex marriage now stand in the uncertain position of adapting to the reality of the legalized practice of same-sex marriage in Washington State.

The issue of same-sex marriage is both politically and socially polarizing because it is so often closely tied to deeply-held personal convictions, beliefs, and principles. For many, "[t]he debate over same-sex marriage has become for the twenty-first century what the abortion debate was for the twentieth century: a single, defining issue that divides the country in a zero-sum political battle."(fn6) As the battle lines between those who supported and opposed same-sex marriage during the Referendum 74 debate slowly dissolve, important issues still remain regarding the impact of same-sex marriage in Washington. One such issue is how far religious exemptions should extend for those who are morally opposed to same-sex marriage on the basis of their religious beliefs. Religious exemptions are a tool that can be used by a legislature to exempt certain groups from compliance with certain parts of a law, such as an exception for churches or religiously-affiliated hospitals that might otherwise be required to provide emergency contraceptives.(fn7)

Washington's Senate Bill 6239 lays out the religious exemption clause that the Washington Legislature included for same-sex marriages.(fn8) Senate Bill 6239 provides:No regularly licensed or ordained minister or any priest, imam, rabbi, or similar official of any religious organization is required to solemnize or recognize any marriage. A regularly licensed or ordained minister or priest, imam, rabbi, or similar official of any religious organization shall be immune from any civil claim or cause of action based on a refusal to solemnize or recognize any marriage under this section.(fn9) Despite this provision's language that will protect religious officials from being required to officiate same-sex marriages, the Washington Legislature's failure to protect anyone besides religious officials from potential lawsuits may lead to legal issues for wedding service providers with religious objections to same-sex marriage.

While legal conflicts between same-sex couples and wedding service providers who object to same-sex marriage on religious grounds are just now beginning to emerge in Washington, similar conflicts have occurred in other states in recent years. For example, in 2006 a same-sex couple successfully sued a photographer in New Mexico who declined to take pictures of their commitment ceremony.(fn10) In Elane Photography v. Willock,(fn11) the New Mexico Court of Appeals held that the photographer's refusal to photograph the same-sex couple's commitment ceremony violated the New Mexico Human Rights Act, affirming the trial court's decision to grant the plaintiff's motion for summary judgment.(fn12) Many conservative Americans opposed to same-sex marriage were concerned about the potential implications of this ruling, and the court's decision became a rallying cry for efforts to overturn same-sex marriage statutes, or at least to strengthen the protections for those with sincere religious objections to same-sex marriage.(fn13)

In January 2013, a situation similar to that in Elane Photography arose when the owners of the Sweet Cakes Bakery in Gresham, Oregon, declined to bake a wedding cake for a same-sex couple's wedding ceremony.(fn14) The couple that owns the bakery contended that they acted within their rights under the Oregon State Constitution when they refused to bake a cake for a same-sex wedding.(fn15) Article I, Section 3 of the Oregon State Constitution states that, "No law shall in any case whatever control the free exercise, and enjoyment of religeous [sic] opinions, or interfere with the rights of conscience."(fn16) On August 13, 2013, the lesbian couple that unsuccessfully tried to order a wedding cake from the bakery filed a complaint with the civil rights division of Oregon's Bureau of Labor and Industries, which plans to move forward in investigating whether this constitutes a violation of the Oregon Equality Act.(fn17) This is a good example of the type of issue that is becoming increasingly prevalent in a nation that contains people who hold genuine and heartfelt beliefs at either end of a politically-charged spectrum: that same-sex marriage is either natural and acceptable, or morally dubious.

In light of this, the Washington Legislature should reconsider the religious exemption provisions in its new same-sex marriage law. These religious exemption protections should be balanced with the need to protect same-sex couples from undue discrimination and an effective status as second-class citizens. Professor Jonathan Turley noted, "I believe (and hope) that the nation will evolve toward a greater protection of homosexuals and greater recognition of civil unions. This evolution will not, however, occur if the government is viewed as unfairly trying to pre-determine the debate or harass one side."(fn18) Both sides of this debate have a concrete interest in finding a middle ground that both groups can find acceptable.

This Comment begins by outlining the background of same-sex marriage laws at the federal level in Part I. Part II discusses the legalization and subsequent impact of same-sex marriage at the state level. Part III explains Washington State's history with the issue of same-sex marriage and its process of legalizing same-sex marriage. Washington's religious freedom protections are analyzed in Part IV to show procedurally how Washington courts treat a legal challenge on a religious freedom issue. To provide an analogy to a similar issue, Part V demonstrates that the Washington Legislature was able to protect pharmacists with a religious objection to selling emergency contraceptives and could use a similar method in the context of same-sex marriage. This Comment then argues in Part VI that greater religious-exemption protections will benefit both sides of the same-sex marriage debate and that the Washington Legislature should adopt a balancing test that allows independent business owners and individuals, in limited circumstances, to decline to perform wedding services for same-sex weddings when they deem those ceremonies to be against their religious beliefs. This Comment concludes by demonstrating why a compromise, which is by definition not ideal for either side, is nonetheless the best solution for the problems facing this state in a new age allowing same-sex marriage.

I. THE FEDERAL DEFENSE OF MARRIAGE ACT HAS BEEN RULED UNCONSTITUTIONAL BY THE UNITED STATES SUPREME COURT

By July 2013, thirteen states had legalized same-sex marriage.(fn19) The United States District Court for the Northern District of California commented that, in light of the country as a whole, "[o]nly a handful of states have successfully passed legislation legalizing same-sex marriage, and only a few more have been required to afford equal marital rights to gay and lesbian...