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.

Feed This post's comment feed


  1. I will disagree somewhat, with both you and Berg. First, Berg's criticism is not actually related to marriage laws but to antidiscrimination laws. Stopping gay marriage rights will not resolve the issues he is concerned about. This is shown by the New Mexico case of the photographer, where there are no gay marriage laws existing. His beef is with another set of laws which remain whether or not marriage equality is obtained or not.

    I also disagree with you when you argue that rights are in conflict, I do not believe that individual rights ever conflict with one another. There is a harmony of rights which I argue is only disturbed by political manipulation of the situation. More importantly I consider it highly dangerous to "balance" conflicting rights. That is a raw excuse to arbitrary assaults on the rights of groups NOT in favor with the political powers that be, of the day. In the past that included the gay community. No politician should have the power to decide that some groups have rights that other groups don't have, or that some people have rights that more important than other people's rights. The very idea that someone must adjudicate "conflicting" rights and decide what the correct "balance" is between individual rights is one that invites authoritarianism in through the front door.

    Posted by: Storey Institute | Aug 18, 2011 1:46:33 AM

  2. Religious communities have NEVER EVER been forced to marry people they don't like or agree with or what ever. This argument is only brought up when Gay Citizens want to marry.

    Posted by: Sargon Bighorn | Aug 18, 2011 2:07:29 AM

  3. My guess about the current legal situation is that the services and benefit of clergymen and church property can be restricted to members of a particular religion, but that's where religious exemption ends.

    So here is my question to anyone who is familiar with the legal details in the United States. At the present time, can wedding photographers, wedding planners, and convention hall owners discriminate to any extent based on religion, for example, by choosing to cater only to Christian couples? If not, then why is Professor Berg mentioning this?

    Posted by: Artie Rimbaud | Aug 18, 2011 5:51:03 AM

  4. Since this seems to be Professor Berg's main worry, I have to ask this. If wedding photographers, wedding planners and convention hall owners have always been subject to anti-discrimination and public-accommodations laws until now, why would that change? What court would take his complaint seriously?

    Posted by: Artie Rimbaud | Aug 18, 2011 6:02:54 AM

  5. The issue of people and same sex marriage is not a new one, homosexuality has been practiced for thousands of years. As a follower of the Bible I understand that homosexuality is wrong not because I say so, but because the creator of man says it is wrong. I don't hate homosexuals it is the act of homosexuality that I find offensive as does Jehovah the creator.
    The fact is simple, we all have free will and we can choose to believe or ignore our creator and his laws, but one thing is certain, we will have an accountability for our own actions. Rather like me choosing to ignore a law does not mean that i am free from guilt or for that matter the consequences.

    Posted by: Ray | Aug 18, 2011 7:51:58 AM

  6. Ray@ Unfortunatey belief in the Bible as you state it means you have nothing of value to say to the people who frequent this website. Get lost or stay tuned to either a flood of insult or the silence of contempt.

    Posted by: uffda | Aug 18, 2011 8:23:53 AM

  7. Excellent as always, Mr. Waldman. Thanks so much.

    Posted by: Abel | Aug 18, 2011 8:29:35 AM

  8. How wouldl Professor Berg address the issue of equal treatment for Gays discriminating against religous people in the delivery of goods and services? What if a gay business refused services to a known anti-gay religious person? It sounds frivolous, but once discrimination is allowed and extended to people with religious beliefs, then it opens a pandora's box for others to discriminate based on their beliefs, religious or otherwise. What if a progressive,pro-gay religious straight person discriminated against a fundamentalist. Should that also be allowed using the same premise?

    Posted by: Robert in NYC | Aug 18, 2011 8:38:31 AM

  9. Trying to extend this protection to people such a photographers, caterers, etc... is hogwash. They are a private business and if they choose not to participate then that is their personal choice. And really why would any gay couple want to hire someone that doesn't support their marriage. Furthermore, I don't see the need to exempt religious organizations because they are essentially a private organization and they can choose who is allowed to be married in their organization but if it makes those religious "people" happy then so be it.

    Posted by: James | Aug 18, 2011 9:46:31 AM

  10. Why do I care what some professor at a Catholic law school ranked 135th in the country thinks?

    Posted by: Jay | Aug 18, 2011 10:02:12 AM

  11. The big question is why anybody would want to hire any priest/minister, church, wedding planner, or florist that considered you to be an abomination? The bigots can hide in their hole for all I care.

    I would treat them the same way I treat any business that is blatantly homophobic. I do not give them my business. I even go so far as to not patronize businesses started or owned by homophobic assholes who may or may not be involved in day-to-day operations, but still receive the profits from said business. Examples: Carl's Jr., Dominoes Pizza, Cracker Barrel, etc.

    They don't like me, and I don't like them. I will patronize businesses that don't discriminate against me.

    Posted by: David Black-Downes | Aug 18, 2011 10:07:25 AM

  12. Personally, I don't see a problem with people who own a business who don't want my money because I am gay. It makes it easier for me to determine which business to support when I have a choice. I would rather a business turn me away because I am gay than inadvertently give my money to a business owner who would rather not have my business. I always try to support gay owned or friendly businesses and having bigoted owners announce that they are bigoted just makes my shopping decisions easier.

    Posted by: Chadd | Aug 18, 2011 11:32:32 AM

  13. Not so sure about the Prop 8 analysis (point 3). Codifying religious exemptions by initiative sounds kind of impossible. Look how incredibly difficult it was to do in NY where compromises and frequent edits were possible. Imagine what it would be like if you just got one shot on a ballot?

    IF you think that marriage equality just shouldn't have been done that way b/c of the all-or-nothing concerns or whatever, I think it IS rational to simply undo it through initiative and insist it be done properly through a legislative process. (In fact, I don't think that b/c I think, as with abortion, there are sufficient religious exemptions built into the nature of the right).

    Posted by: BC | Aug 18, 2011 11:39:44 AM

  14. This thread is too long to read all the comments. Issues of 4th vs 14th amendment generally are the most treacherous in the law. The courts offer little guidance in many cases. The CSC effectively made gay marriage equivalent to str8 marriage, thereby putting gay marriage into the same CA laws that govern str8 marriage, which did not have any religious exemptions. Prop 8 petitioners may have wished to amend CA marriage laws to carve out religious exceptions, but they did not. The 9th is reviewing Walker's decision that there was no rational basis for Prop 8. If struck down CA law would revert back to the original CSC ruling (presumably).

    As a matter of pure policy instead of law, then the original argument (Berg) seems correct, but there is no evidence to support the view that Prop 8 supporters merely thought gay marriage was badly implemented.

    Restrictions placed on the 4th amendment by the Warren court in the 60's were a remedy to overcome past discrimination. The 4th amendment still stands. SCOTUS has ruled that these remedies will expire unless there is another ruling within now about 20 years. Don't confuse rulings with remedies.

    Posted by: anon | Aug 18, 2011 2:34:01 PM

  15. Hi,

    Thanks for posting this. I thought Dr. Berg's article was horrible. Here's the note I sent to scotusblog. They asked for feedback related to "errors" and Dr. Berg published an article full of errors.


    The purpose of this note is to report errors in the subject blog post.

    1. The second paragraph obscures the constitutional question - can the government bar individuals from exercising their fundamental right to marry the person of their choice? Instead, Dr. Berg asks if the court will to "declare opposite-sex-only marriage unconstitutional". A broad ruling against Prop 8 would prohibit the government from barring same-sex couples from marrying. Perhaps a better wording would have been "declare one-man-one-woman leglislation unconstitutional".

    2. Marriage is a legal status. The second paragraph ends with "To say that same-sex civil marriage should be recognized does not mean, of course, that judges should require it under the constitution." If marriage is a legal status, there isn't much wiggle room here. If the Court rules that same-sex couples have the right to marry, then that right is granted under the constitution.

    3. The discussion of anti-discrimination laws is a red herring. The recognition of committed same-sex relationships is a social phenomenon. The 2000 census reports that nationwide, approximately 1% of all households are headed by same-sex couples. If these couples are open about their relationship, they will come into conflict with photographers, caterers, clerks, restaurant owners, cement truck drivers, dog catchers, and *any* other person in *any* profession who believes that their relationship is immoral and that providing goods or services to them is a violation of religious conviction. The married legal status may broaden the scope of clashes, for example to include discount coupons for married couples, and as Dr. Berg argues, the marriage ceremony and celebration, but it doesn't address the fact that anti-discrimination/religious liberty clashes are separate from married legal status/religious liberty clashes.

    Dr. Berg's math is simply incorrect when he says "recognizing same-sex marriage without significant religious accommodations will multiply the conflicts, since some traditionalists have particular objections to marriages because of the term’s religious significance." A couple will marry once in their lifetime. They will interact with people with religious convictions for the rest of their lives. The marriage ceremony is a life cycle event. It simply does not multiply the numerous potential conflicts ahead.

    4. The mention of tax exemptions is also a red herring. What does compliance with tax law have to do with exercise religious liberty?

    5. Dr. Berg finally identifies the topical question of the blog post, and that question isn't marriage. It's "the idea that opposition to homosexuality is so far beyond the pale that it deserves almost no accommodation." Again, the legal question presented is "giving up their charitable activities or livelihoods." It sounds like Dr. Berg is trying to carve out a special government stamp of approval for religious institutions that promote open opposition, if not hostility towards openly homosexual people. That's a pretty difficult point to argue. It's much easier to talk about same-sex marriage.

    Posted by: Jonathan | Aug 18, 2011 6:51:13 PM

  16. "[W]edding photographers, wedding planners and convention hall owners" have been the focus of the conversation here. But are adoption agencies the group that religious fundamentalists are really obsessed about the most?

    I mean, adoption agencies shouldn't require a different analysis than "wedding photographers, wedding planners and convention hall owners"--but the Pope's legions probably will probably try to claim there is one, huh?

    Posted by: just_a_guy | Aug 19, 2011 2:27:52 AM

  17. @daniel - A little off topic, but just to clarify - Mormons allowed black congregants throughout their history (Joseph Smith baptized some), they weren't allowed to hold leadership positions until after 1978. And yes, only 'good' Mormons are allowed in the temple - that's why the black sheep of my family couldn't go in to see my brother married in the temple last month.

    Posted by: Rick | Aug 19, 2011 9:17:51 AM

  18. Please look at this NPR story on the conflict between liberties and you will see who would want 'bigots' to photograph their wedding - overzealous and vindictive gay activists that don't respect an indiviual's religious rights.

    The fears of religious Americans on losing the struggle between gay and religious rights is very real and we cannot just pooh-pooh their concerns, any more than they should pooh-pooh ours. I think that it is correct to have religous exemptions explicitly stated in any gay rights legislation, because protecting their right to object is just as important as codifying our own.

    Posted by: Rick | Aug 19, 2011 9:39:51 AM

  19. Professor Berg says, "courts are incapable of creating balanced laws that reflect competing interests"--So that justifies continuing to deny one group of individuals equal rights and rewarding religious groups power over other citizens? It sounds like he's trying to keep an unjust legal system that favors one group over another on the grounds that there is no Perfectly Balanced alternative. What trickery!
    Religions should be asked to change core values that oppress others. Religion is stagnant because people are under the delusion that all religion is divine and can't be altered. They need to step back and realize oppression comes from humanity, freedom and equality are divine.

    Posted by: LillyS | Aug 19, 2011 2:57:14 PM

  20. Come on People! How do religious faiths get people to go to Church and put money in the collection plate? Simple; As children, their parents take them to Church and teach them to pay up. But, Gay people who do not "Marry" an opposite sex person does not procreate children to be brainwashed with the Religion bit to put money in a collection plate.

    It is "Money" that is behind the religianists opposition to Gay Marriage, not "God". How could "God" be against Gays? He made us; And everyone knows that "God" does not make mistakes.

    Posted by: Jerry6 | Aug 21, 2011 8:50:11 PM

  21. « 1 2

Post a comment


« «Towleroad Guide To The Tube #949« «