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COPYRIGHT 2007 Harvard Society for Law and Public Policy, Inc.
I. 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)
I. 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 exclusion from government benefits. Whether that risk translates into legal penalties will depend upon the outcome of a whole cascade of litigation; this Article aims merely to point out the contours of the emerging conflicts rather than predict the prevailing parties in each particular case. But, after much careful study, two results seem certain if same-sex marriage becomes generally accepted in law. First, neither side should be so confident of its legal position as to expect victory in every or almost every category of litigation described in this Article. Second, the inevitable litigation will be protracted, costly, and result in widespread legal confusion resulting in pervasive church-state conflict and a substantial chilling of religious expression.
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
Early efforts to redefine marriage through direct legal challenge began a decades-long record of complete failure. (24) Even oblique attempts to recognize same-sex marriage by litigants who underwent hormonal and surgical "sex change" procedures were routinely rebuffed by courts. (25) Judicial trends, however, have shifted. Beginning with Hawaii in 1993, (26) courts began to question the traditional conception of marriage and reinterpreted state constitutional provisions regarding equal protection, privacy, and "privileges and immunities (among others) to strike down marriage statutes as applied to same-sex partners. (27) The Hawaii court was followed by Alaska in 1998 (28) and Vermont in 1999 (29) in overturning marriage statutes.
Hawaii's judicial imposition of same-sex marriage caused widespread alarm and uncertainty around the country, prompting the federal government to adopt DOMA and motivating states to amend their constitutions to protect traditional marriage. The fear centered on two issues. First, as to the federal government, people feared that a drastic state redefinition of marriage would effectively redefine marriage for federal purposes as well since the government traditionally deferred to state law on these matters. (30) Second, as to the states, they feared the Constitution's Full Faith and Credit Clause (31) would require them to honor marriage licenses issued in same-sex marriage states as equivalent to their own. (32) Attempting to cure these twin risks, Congress passed DOMA in 1996, providing that states need not recognize same-sex marriages entered into under the laws of sister states, and defining "marriage" and "spouse" to mean for federal purposes a union of one man and one woman. (33) At the state level, the reaction was similarly swift as Hawaii and then Alaska quickly amended their constitutions to restore the traditional conception of marriage and preserve it from further judicial attack. (34)
The Vermont case differs from the experience in Hawaii and Alaska in one key respect. Although the Vermont courts forced the state legislature to confer all the substantive privileges of marriage to same-sex couples, it left the legislature the option to choose its own name for the arrangement. (35) The Vermont legislature complied with the order and exercised its option by dubbing these newly legally-sanctioned same-sex unions "civil unions," thereby effectively preserving the name (if not the substance) of traditional "marriage." (36) As expected, much confusion and litigation has resulted over what marriage-like obligations and benefits if any attach to persons who enter Vermont civil unions and permanently relocate to other states. (37) Yet as controversial as the Vermont experiment was, it proved merely a preview of things to come.
B. By Firmly Establishing Same-Sex Marriage in Law, the Goodridge Decision Opened the Floodgates of Gay Marriage Litigation Across the Country
On November 18, 2003, the Massachusetts Supreme Judicial Court released the remaining genie in the bottle in Goodridge v. Department of Public Health. The Goodridge court held that Vermont's nominal distinction between same-sex civil unions and traditional marriage was irrational at best and invidious discrimination at worst. (38) Only opening marriage in substance and name to same-sex partners would satisfy the court. (39) Activists, emboldened by Goodridge, quickly challenged traditional marriage laws in California, (40) Connecticut, (41) Florida, (42) Indiana, (43) iowa, (44) Louisiana, (45) Maryland, (46) Michigan, (47) Nebraska, (48) New Jersey, (49) New York, (50) Oklahoma, (51) Oregon, (52) Washington, (53) federal bankruptcy court, (54) and even on tribal lands. (55) This flurry of litigation resulted in something really quite remarkable. After decades of abject failure, arguments for same-sex marriage are not only being taken seriously, they are winning in court. Although only three out of the sixteen lawsuits mentioned above represent gay rights victories that have survived appeal, this figure is misleading. More important than the raw number of victories is where they have taken place: Maryland, California, and New Jersey.
The New Jersey Supreme Court's decision in Lewis v. Harris is likely the most significant gay rights case since Goodridge, largely because it was decided by the supreme court of a major state. In Lewis, the court gave the state legislature 180 days either to allow same-sex couples to legally marry, or provide for full marriage equivalents by some other name, such as civil union. (56) But as significant a decision as Lewis was, it may soon be eclipsed by a pending ruling by the California Supreme Court on same-sex marriage. (57) With a population of over 36 million people and its status as one of the states most sympathetic to gay rights, California is poised to hand down a watershed same-sex marriage decision in terms of cultural impact. To put this scenario in perspective, if California adopts same-sex marriage, approximately 14% of the American population will be living in same-sex marriage states. (58) When one includes the population of states with same-sex marriage equivalents such as New Jersey, Vermont, and Connecticut, (59) the total figure rises to 18.6% of the population. (60)
In addition to California, same-sex marriage challenges await resolution before the Maryland and Connecticut high courts and before lower courts in Iowa and Oklahoma. (61) As described infra Part II.C., the absence of many lower court cases reflects a general slowing of same-sex marriage litigation, but this is likely only temporary. At bottom, same-sex marriage litigation is driven by long-term legal trends that are difficult to reverse since they have been shaped in significant part by firmly-established precedents expanding gay rights at the U.S. Supreme Court (62) and in foreign jurisdictions. (63)
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
Some same-sex marriage advocates, fearing a backlash from moving too quickly, preferred an indirect or "incremental strategy" for overcoming traditional marriage laws piece by piece through targeted litigation (64) and lobbying state and municipal legislative bodies. (65) This approach, however, was sidelined by the Hawaii Supreme Court decision, the Vermont civil union controversy, and the Goodridge case. Finally, the spectacle of municipal officials across the country issuing same-sex marriage licenses in defiance of state law signaled the death knell of the incrementalist strategy. (66) The response from legislatures and voters to these successive events has been impressive and swift. As of this writing, 44 states have protected the traditional definition of marriage by state statute, state constitutional amendment, or both. Of these 44 states, 26 have adopted constitutional amendments reserving marriage exclusively to opposite-sex couples, while 17 states took the extra step of banning civil unions or domestic partnerships as well. (67)
The federal government responded quickly in the wake of the Hawaii Supreme Court's 1993 legalization of same-sex marriage with DOMA in 1996. With DOMA, the federal government abandoned its traditional deference to the states on marriage questions and explicitly defined marriage for federal purposes as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative...
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