Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | Proposition 8

Same-Sex Marriage and Religious Objections


SCOTUSBlog, a blog dedicated to discussing constitutional issues before the Supreme Court, is conducting an online symposium on Perry, Proposition 8, the Defense of Marriage Act, Windsor v. United States and other LGBT rights issues. It's worth a read, when you a have a moment.

In his post, Professor Thomas Berg of the University of St. Thomas argues that courts are institutionally incapable of balancing the gay community's interest in marriage rights and traditionalists' interest in religious liberty. He argues that

13_11_Perry_CAse_14_LRG Like Judge Walker, the California Supreme Court in In re Marriage Cases (2008) found that same-sex civil marriage “will not impinge upon the religious freedom of” anyone, for two reasons: “no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs.”

Professor Berg finds this reasoning inadequate because simply stating that religions will not have to change their practices "overlooks the reach of antidiscrimination and public-accommodations laws," and restricting focus to officiants "limits religious-freedom concerns to the church ceremony and the clergyperson." He is concerned about the photographer, the wedding planner, the convention hall owner and other private individuals who refuse to grant equal access because of their personal religious beliefs.

This concern is most notable when a court legalizes gay marriage (as in California in In re Marriage Cases) rather than New York, where a legislature legalized the practice. According to Professor Berg, courts are incapable of creating balanced laws that reflect competing interests -- instead, courts answer narrow legal and factual questions before them; legislatures craft policy. The California Supreme Court did this, the argument goes, before Proposition 8. It legalized same-sex marriage without legislation that protected religious liberty. As such, the voters could have rationally decided that same-sex marriage as constructed in California was wrong (which would make Prop 8 constitutional under a rational basis standard).

Professor Berg's argument seems reasonable, but I disagree. Let's discuss how AFTER THE JUMP.

There are three reasons why Professor Berg's argument does not quite come full circle.

First, the suggestion that marriage rights have to be balanced equally with religious rights, in general, assumes the value judgment that those rights are of equal weight. In this way, Professor Berg, like many colleagues influenced by the classical liberal (lowercase "l") foundations of our constitutional and legal philosophy, suggests that individuated rights are the central values in the Constitution, leaving little guidance on how to mediate between those rights. I do not believe that to be the case, but even if I concede the philosophical point, American society has already proved him wrong. As I have argued here, the pervasive existence of public accommodations laws that ban this type of discrimination manifests the public's judgment that cooperation and equality are more important to us than radically individuated religious observance.

Second, even if you do not believe that our society has made that value judgment -- it is indeed up for debate -- there is a qualitative difference between a right of inclusion and a right of exclusion. In re Marriage Cases and the Massachusetts same-sex marriage decision, Goodridge v. Department of Public Health, included the gay community in the institution of marriage; religious exceptions to such inclusion excludes the gay community from public accommodations. Normally, exceptions to default rules require special justification. They are rarely of equal value to the basic right in question. And, they are meant to be narrow. Professor Berg would extend the right to exclude the gay community from public accommodations to anyone who follows a conservative religious ideology, significantly expanding the orbit of discrimination.

Third, it makes no sense that Prop 8 -- the ban on same-sex marriage in California -- was a rational public response to a California Supreme Court decision (In re Marriage Cases) that inadequately protected religious liberty. Professor Berg cites from an amicus brief from the Becket Fund for Religious Liberty argued in Perry: "Since the California Supreme Court left Californians with an all-or-nothing choice between same-sex marriage and full protection for the rights of conscience, Proposition 8 was an entirely rational response to the threat to religious liberty." No, it wasn't. A rational response would have been an initiative (assuming we needed an initiative) that codified religious exemptions to default marriage recognition. If the problem was the lack of religious protection, then the solution to the problem was to add religious protections, not overturn the entire law. Prop 8 was an overreaction, and thus an irrational reaction.

Professor Berg is not wrong about the relative institutional abilities of courts and legislatures: it is certainly harder for courts to adequately craft rules that balance competing interests. But, that does not mean that Prop 8's discriminatory ban on the entire institution of same-sex marriage was a rational response to a much more narrow problem.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. this is how it works in Canada. Gay Marriage is legal across the country. those that don't support gay marriage are not "forced" to perform marriages for gay people.

    LGBT couples don't want bigots performing their ceremonies anyway.

    when it comes to civiil servants, they have a job - they have to do their job. there is no room for their "religious beliefs" in their roles as civil servants.

    this is just basic logic.

    religious arguments against gay marriage make as much sense as jews and Muslims uniting to ban gentiles from eating pork.

    Posted by: Little Kiwi | Aug 17, 2011 5:23:45 PM

  2. "religious arguments against gay marriage make as much sense as jews and Muslims uniting to ban gentiles from eating pork"

    I've never actually thought about it in those terms, but that is an excellent analogy! I wish people would use it in response to these ridiculous religious arguments.

    Posted by: Mike | Aug 17, 2011 5:35:28 PM

  3. I agree with everything you say, and I'd add this:

    There's a practical problem when you try to extend discrimination protections beyond clergy (and Berg makes it plain that he'd like to extend protections to, for example, caterers and wedding photographers): How many bigots would suddenly claim to have found religion, and then try to use their faith as an excuse to continue discriminating?

    I remember lots of segregationists exploiting religion as an excuse for discrimination (but it's in the Bible!). It didn't work then, and it shouldn't work now.

    Private groups (and church congregations are such) can pick and choose who they want as members. Persons offering public services (florists, for example) and persons offering public accommodatins (hotels and restaurants) must be available to all the public, even people they don't like.

    Posted by: K in VA | Aug 17, 2011 5:38:22 PM

  4. Nail meet Head.

    Posted by: Zlick | Aug 17, 2011 5:40:34 PM

  5. Also, what if there were a sect of the Mormon church that wanted to retain the ban on black congregants that was lifted in 1978? And as part of this belief, not serve black people, not allow them on the premises of their churches, etc. etc.?

    What ever happened to separation of church and state?

    Posted by: Daniel | Aug 17, 2011 5:45:19 PM

  6. Whoa, Prof. Berg, if we started to try to tailor our laws to the religious preferences and beliefs of all individuals we would have no laws at all.

    Posted by: prophet | Aug 17, 2011 5:50:25 PM

  7. Any 'religious exemption' law is a violation of the first amendment. If we give christianists an exemption from one law, what's stopping them from feeling entitled to an exemption from others? Could a 'christian' farm then decide to own slaves? If you give a rat a cookie...

    Equality does not infringe on the first amendment rights of ANY individual. A christianist can still avoid contact with gay people as long as they stay at home or in church and avoid public property. However, if that person wants to open a business or get a job, then they must play by the same rules as EVERYONE else.

    If we start handing out religious exemptions for every thing christianists feel uncomfortable with, then I'm going to start my own cult that says I need a religious exemption to force my employer to fire all the women, hire only men under 25 and enforce a dress code that prohibits shirts.

    Posted by: Brian Stroup | Aug 17, 2011 5:52:44 PM

  8. Daniel, though I would not join a religious group that discriminated on the basis of ethnic background, private groups are permitted to that. Religious groups can even discriminate on the basis of religion ("Miss, we've decided that there just isn't room for an evangelical in our synagogue.")

    The Supreme Court has found that freedom of association works both ways. After all, they recently found that a gay softball league could limit the number of straight members (and that they could question members about their sexuality).

    Since Mormon churches and temples are not places of public accommodation, they get to do that. They don't even let all Mormons into their temples.

    Posted by: John D | Aug 17, 2011 5:56:17 PM

  9. I think the core difficulty with his position is the third point. The California Supreme Court didn't present California voters with an all-or-nothing choice; the people who wrote Prop. 8 did. They could have written an initiative or a constitutional amendment with the kinds of exemptions from participation in marriage ceremonies that Berg wants, and not only would it have probably passed, but it would have been much less vulnerable to judicial challenge than Prop. 8. If the district court decision stands, they still can.

    Why didn't they? Because opponents of same-sex marriage are interested in banning same-sex marriage, not accommodating religious liberty in the context of same-sex marriage. That's a choice they should have to defend in court. And people interested in religious accommodations broader than those already available should attempt to bring those about by amending anti-discrimination laws, not by consigning same-sex couples to an inferior status.

    Posted by: Fodolodo | Aug 17, 2011 5:59:09 PM

  10. @Daniel
    Only Mormons are allowed inside of Mormon Temples.

    I am not sure how this jibes with anti-discrimination law. If the toilet clogs can only Mormon plumbers repair it?

    Posted by: Charlie | Aug 17, 2011 6:11:50 PM

  11. If Christians are allowed to discriminate against me because of their religious beliefs, can I then, as an atheist discriminate against them?

    Posted by: marshallt | Aug 17, 2011 6:12:29 PM

  12. Moreover, California already has a law that bans businesses that provide services to the general public from refusing to provide those services to people on the basis of, among other things, sexual orientation. Accordingly, there has already been a legislative determination in Califonria that such discrimination violates public policy. Accordingly, a photographer who refuses to provide services to a same-sex couple for their Christmas Card photo (along with the two dogs... sorry, just assuming here) can lodge a claim for violation of the Unruh Act.

    Posted by: Bob Conti | Aug 17, 2011 6:38:17 PM

  13. Ah! Marshallt, there's the rub! Religious people of all stripes would never countenance such discrimination and Christians ROUTINELY break their own rules by not doing unto others as they would want done to themselves.

    Posted by: brenda | Aug 17, 2011 6:47:53 PM

  14. My religious beliefs include the biblical mandate to slay my disobedient children. How DARE the evil socialist activist liberal state tell me I cannot??!!! They're violating my RELIGIOUS LIBERTY!!!

    Posted by: Mark | Aug 17, 2011 7:03:26 PM

  15. The religious liberty argument is just a red herring.

    And courts are correct to discuss only the practices of the religious organizations themselves, and not the religious beliefs of individuals.

    We don't allow people to break other laws just because their religions require them to. No one is raising a fuss about that. The argument is just a trick to make their bigotry sound legitimate.

    Posted by: Matt | Aug 17, 2011 7:14:22 PM

  16. BTW, the other articles in the symposium linked to above are also interesting reads.

    Posted by: Zlick | Aug 17, 2011 7:21:14 PM

  17. the gay marriage bans have nothing at all to do with "religious liberties" and everything to do with anti-gay bigots being furious that LGBT people are being legitimized in society.

    that's it, that's all, and we need to all start recognizing it.

    Posted by: Little Kiwi | Aug 17, 2011 7:28:56 PM

  18. My thoughts are along the same line as Little Kiwi's. You cannot discriminate against anyone even if it goes against your religious beliefs. There is no way Christians would be allowed to not serve or do business with Jewish people just because they do not believe in Jesus. A wedding photographer cannot refuse to do a wedding simply because he/she does not believe in same-sex marriage. Professionals put personal beliefs and feelings aside and do the job they are hired to do.

    These weak arguments people are making are tiresome. Same-sex marriage should be legal and recognized by all levels of government. End of story.

    Posted by: DoTheRightThing | Aug 17, 2011 7:50:46 PM

  19. The court / legislature distinction is why VT's path back in 2000 was so interesting. The court ruled that discrimination was illegal, but gave the legislature 6 months to come up with a way to make unions for same sex couples equal, either through marriage or "some other status." They came up with Civil Unions, which no one wanted, but the dialogue a) gave us the first unions in North America that were really marriage by another name on the state level, absolutely equal and b) paved the way for the movement to marriage via the legislature in 2009.

    Posted by: KevinVT | Aug 17, 2011 8:43:59 PM

  20. It is true. Religious people will be required to make available any service which they provide to the general public. If they don't want to serve the general public, they ought not to be in business.

    This is a red herring of bigotry; they perform services all the time for people that hold different beliefs and/or views. Now, b/c it's gay people their integrity has reached a tipping point?


    F-you, you f'n bigots!

    Posted by: Pete n SFO | Aug 17, 2011 9:10:30 PM

  21. Ezra cannot have it both ways for minority rights (courts versus legislation). He uses as his argument that "public good" is more important than "individual rights and freedoms" the (his words) "... pervasive existence of public accommodation laws", ie. legislation.

    Pardon? Is he suggesting that having people legislate public accommodation laws makes them right? What happens when they don't legislate in favor of an opinion you support?

    The rights of individuals appear to be only important to individuals within a minority when the minority is so insignificant as to be unable to influence public opinion and receive legislative and/or public support. It is their desire then to ask courts to counter-balance because their individual freedoms are too important to leave up to legislation or the court of public opinion.

    Legislation occurs for many reasons, some good, some bad, but mostly capitalist. We do not live in a Democracy where we are able to vote individually for rules that will be placed upon all. We live in a representative democracy that has shown itself to be filled to the brim with corrupted, self-interested and self-serving people. To use their legislative choices as any sort of justification to override Constitutionally-protected rights is ridiculous.

    An individual is also a minority. A minority of one, but still a minority as the Constitutions framers would have viewed them. I think that there were very good reasons why individual rights and freedoms should be preserved. History has shown us over and over again what happens when individuals are asked, aka "forced" to give up individual freedoms for a greater good.

    Sure, a Stalin doesn't show up right away to remind you why you shouldn't trust those greater good agents when they show you posters of a brave new world, but they come all too quickly once you start to join in the greater good fun.

    The right to marry whom you choose should be an individual's right. Asking gays and lesbians to not marry whom they choose, to either marry someone they wouldn't choose or not marry at all is a violation of an essential, individual liberty. The right of gay and lesbians individuals to marry whom they choose is an important right.

    Protecting the rights of individuals can be noble, as would be in the case of allowing gays to marry. It can also seem "dirty" by many standards, such as in the case of allowing people the choice to use their business to discriminate against people.

    However, it all works out in the wash. The checks and balance occurs not in governmental control but the free market.

    IF people like photographers discriminated against gays and lesbians they will lose not only the gay and lesbian business (thus hurting themselves) but also the business of people supporting gays and lesbians (thus hurting themselves).

    How is that not only fair but just?

    Unjust is forcing those people to accept your business grudgingly to win some point against bigots, only to discriminate against the good people who would have done it gladly and un-forced.

    Posted by: Rin | Aug 17, 2011 9:14:58 PM

  22. I'd like to also recommend the other symposium articles in the first link. Really well written perspectives on the issue. I love the SCOTUS blog.

    Posted by: Gregoire | Aug 17, 2011 9:49:12 PM

  23. I only skimmed through this and will read more in depth tomorrow but I have to say that between this (though Ali posts here on a regular basis) and things like the Sinclair Lewis post, this blog has a mix of bookwormy/smart stuff with pop culture and trash (most but not all of it related to LGBT issues) that I like very much.

    Posted by: Chitown Kev | Aug 17, 2011 10:54:21 PM

  24. "Also, what if there were a sect of the Mormon church that wanted to retain the ban on black congregants that was lifted in 1978? And as part of this belief, not serve black people, not allow them on the premises of their churches, etc. etc.?"

    A church is perfectly within its rights to be racist.

    Posted by: BobN | Aug 17, 2011 10:56:58 PM

  25. University of St. Thomas?
    What kind of university is that?
    Sounds like the "Liberty University".

    Posted by: simon | Aug 18, 2011 1:35:58 AM

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