Same-Sex Marriage and “Religion-Related Strife”

June 25th, 2014

Towards the end of the opinion in Kitchen v. Herbert,the 10th Circuit rejects the argument that permitting same-sex marriage “would create the potential for religion-related strife.” Although, the Court expressed “respect” for the views of religious groups regarding marriage.

Plaintiffs must be accorded the same legal status presently granted to married couples, but religious institutions remain as free as they always have been to practice their sacraments and traditions as they see fit. We respect the views advanced by members of various religious communities and their discussions of the theological history of marriage. And we continue to recognize the right of the various religions to define marriage according to their moral, historical, and ethical precepts.

Notably, this discussion of “religious communities” is not limited to religious institutions. Individuals (corporations?) who claim a religious exemption to discrimination laws based on sexual orientation will seize on this sentence.

But, later parts of the opinion seem to limit it to clergy.

Our opinion does not intrude into that domain or the exercise of religious principles in this arena. The right of an officiant to perform or decline to perform a religious ceremony is unaffected by today’s ruling. See Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013) (“Our holding [that same-sex marriage is required by the state constitution] will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.”); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 475 (Conn. 2008) (“Religious freedom will not be jeopardized by the marriage of same sex couples because religious organizations that oppose same sex marriage as irreconcilable with their beliefs will not be required to perform same sex marriages or otherwise to condone same sex marriage or relations.”); In re Marriage Cases, 183 P.3d at 451-52 (“[A]ffording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; 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.”).


I’m still waiting for someone to sue to revoke a church’s tax-exempt status for failing to perform a same-sex marriage, citing Bob Jones. I know the court disclaims this point in their opinion, but if marriage is a fundamental right, and strict scrutiny applies, there would be a clash between the rights of free exercise and the equal protection/due process clause.

But, at the very end this section, the court drops this footnote:

Although appellants suggest that religious institutions might be subject to hypothetical lawsuits under various scenarios, such lawsuits would be a function of anti- discrimination law, not legal recognition of same-sex marriage.

In an odd way, that is true. Elane Photograph arose in New Mexico, where a photographer refused to photograph a same-sex commitment ceremony, for at the time the state did not permit same-sex marriage. So, in that sense, it was the anti-discrimination law, not the legal recognition of same-sex marriage that made a difference. The court does not express an opinion on whether those lawsuits would be foreclosed by the First Amendment, or RFRA.

In closing, the Court later rejects the concern that supporters of same-sex marriage will be deemed “intolerant.”

Lastly, appellants express concern that a ruling in plaintiffs’ favor will unnecessarily brand those who oppose same-sex marriage as intolerant. We in no way endorse such a view and actively discourage any such reading of today’s opinion.

Although a majority’s “traditional[] view[ of] a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” Lawrence, 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 (Stevens, J., dissenting)), for many individuals, religious precepts concerning intimate choices constitute “profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives,” id. at 571. Courts do not sit in judgment of the hearts and minds of the citizenry. Our conclusion that plaintiffs possess a fundamental right to marry and to have their marriages recognized in no way impugns the integrity or the good-faith beliefs of those who supported Amendment 3. See Wolf, 2014 U.S. Dist. LEXIS 77125, at *4-5 (“In reaching [the] decision [that a same-sex marriage ban is unconstitutional, there is no need] to disparage the legislators and citizens who voted in good conscience for the marriage amendment.”).

That is not consistent with Justice Kennedy’s opinion in Windsor. As noted by the Chief Justice, those who favored DOMA were tarred with a “brush of bigotry.”

The majority sees a more sinister motive, pointing out that the Federal Government has generally (though not uniformly) deferred to state definitions of marriage in the past. That is true, of course, but none of those prior state-by-state variations had involved differences over something — as the majority puts it — “thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Ante, at 2689. That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising — and hardly enough to support a conclusion that the “principal purpose,” ante, at 2694, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.

At least the 10th Circuit is not willing to challenge the good faith of those supported the Amendment. But I don’t suspect many will heed the Court’s admonition.