Does Recognition of the Right of Same-Sex Couples to Marry Impose Undue Burdens on People Who Reject Same-Sex Marriage on Account of Religious Convictions? An Evaluation of This Objection to the Massachusetts and California Same-Sex Marriage Decisions

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN


Tuesday, Jul. 8, 2008

Some critics of the state Supreme Court rulings in Massachusetts and California that recognize the right of same-sex couples to marry have suggested that these cases create a conflict between religious believers and proponents of religious liberty, on one side, and gay men and lesbians and supporters of gay rights, on the other.

Their argument is more practical than normative. The rulings’ critics maintain that recognizing same-sex marriages will inevitably lead the state to interfere with and burden the religious liberty of faith communities that hold traditional beliefs deeming homosexual conduct immoral. For example, the critics fear that religious employers may be forced to violate the tenets of their faith if they are required by state law to extend health and retirement benefits to the same-sex spouses of their employees, just as they are for opposite-sex spouses.

We think this new attempt to characterize the debate about same-sex marriage as a “God versus Gays” battle is grounded on mistaken, or at least carelessly-considered, legal assumptions. Indeed, in important respects, protecting the right of gay men and lesbians to marry may help to reaffirm and reinforce religious freedom in our legal system far more than it will interfere with the free exercise of religion – for reasons we explain later in this column.

When Secular Law and Religious Practice Conflict, the Solution Is to Seek Religious Exemptions – Not to Reject Secular Law

It is true that recognizing same-sex marriages may generate some clashes between civil law and the doctrine of certain religious institutions. But that kind of conflict between law and religion is unavoidable in a pluralistic society such as ours, with hundreds of different faith communities and numerous secular individuals living and working together. It is hard to imagine how the government could ever adopt any law or policy if it had to be certain beforehand that the enactment and implementation of the new statute or regulation would never burden any person’s beliefs or practices.

In sum, it is inevitable that laws serving secular goals may interfere with the exercise of religion of some individuals or institutions. The appropriate way to resolve this conflict is not to forego such laws, but rather to accommodate those religious communities by exempting them from requirements in the law that unreasonably interfere with the practice of their faith. That solution makes intuitive sense in many cases, and is a commonly-utilized mechanism for protecting religious liberty in our society. Hundreds of laws, ranging from zoning regulations to conscription statutes to restrictions on the use of illegal drugs, contain religious exemptions that limit the laws’ application. It is neither plausible nor reasonable, however, to insist that legal rules should be rejected in their entirety whenever they create potential conflicts with particular exercises of religion.

Ironically, we could not even protect religious individuals against discrimination on the basis of their religion if we refused to enact laws that risked creating such conflicts. Title VII, an important part of the federal civil rights statutory framework, prohibits employers from discriminating in hiring on the basis of an employee’s race, gender, and religion. It was abundantly clear when Title VII was enacted that its implementation would conflict with the hiring decisions of many religious institutions which, not surprisingly, have taken religion into account in hiring their staff. The solution to the problem, of course, was to adopt exemptions for religious institutions from the operation of Title VII’s prohibition against religious discrimination. This limited accommodation was a much more appropriate response to the problem than refusing to enact Title VII altogether would have been.

The Right of Same-Sex Couples to Marry Should Not Be Denied Because of Potential Conflicts with Religious Practice When Carefully Crafted Religious Exemptions May Resolve these Issues

The same analysis applies to same-sex marriage. If extending legal recognition to same-sex marriages burdens the exercise of religion of some religious institutions or individuals in certain circumstances, then the correct way to deal with those conflicts is for governments to adopt whatever accommodations may prove to be necessary and reasonable -- not to refuse to recognize the marriages in the first place.

Of course, there is no guarantee that such accommodations will (or should) always be granted. Not every demand for an exemption is justified. Some balancing of governmental interests and religious liberty will be necessary. Accordingly, critics of same-sex marriage may plausibly worry that, from their perspective, too many requests for accommodation will be denied.

But in making their arguments about the threat posed to religious liberty, the critics miss an important point: The constitutional foundation for protecting same-sex marriage is remarkably similar to the foundation for protecting the exercise of religion.

There are Key Similarities Between the Arguments Supporting the Constitutional Protection of Same-Sex Marriage, and the Arguments for Protecting the Free Exercise of Religion

Indeed, the same legal and constitutional arguments that are asserted to justify protecting the right of same-sex couples to marry can be used to justify protecting the free exercise of religion and accommodating religious practices generally.

Both the right to marry and the right to exercise one’s religion free from government interference are basic autonomy rights. We protect these rights because they involve important, self-defining decisions that belong, as of right, to individuals rather than the state.

Intimate sexual relationships and religious commitments both involve core aspects of a person’s identity. Just as it makes no sense to tell a gay person who has been living with his partner for 20 years to end his relationship, or to stop being gay and enter into a heterosexual relationship, it makes no sense to tell a devout religious individual to set his or her convictions about homosexual conduct aside and adopt a new religion. Neither the gay person nor the religious adherent can reasonably be asked to change who they are. Our laws should reflect that reality in both circumstances.

The Massachusetts and California decisions do not undermine the case for religious accommodations. If anything, they actually help to justify them. By recognizing the autonomy of gay individuals who seek to formalize their relationships through marriage, courts strengthen the argument for respecting other self-defining decisions that are intrinsic to personal identity. It is in the nature of our legal system that by respecting one autonomy right, we reinforce respect for other autonomy rights.

Finally, and this is probably the most important point, religious liberty and the justification for religious accommodations are based on principles of substantive and functional liberty and equality. Unlike formal liberty and equality values that presuppose the irrelevance of differences among people, substantive constitutional values require acknowledgement and respect for differences. These principles are not vindicated by treating everyone the same way. Instead, we have to take the differences between people into account, in a positive sense, if their liberty and equality are to be meaningfully protected.

There is no doubt that this is a core free exercise idea. When the United States Supreme Court, in a case called Employment Division v. Smith, held over fifteen years ago that the Free Exercise Clause provides no meaningful protection against neutral laws of general applicability, religious groups across the country were outraged. They understood that people of different faiths are not similarly-situated. The same law that causes no problem from a Protestant’s point of view may substantially burden the religious practices of a Jew, or a Catholic, or a Native American. For religious liberty to be meaningful, courts have to take religious variations into account.

Of course, the same argument applies to gay rights and same-sex marriages. Courts have to take the sexual orientation of each individual into account if the right to marry is to have meaningful value to gays and lesbians. Just as the free exercise of religion is useless to an Orthodox Jew if it only protects his right to observe Sunday as the Sabbath, so too the right to marry is an empty guarantee if it only protects a lesbian’s right to marry a man. In both instances, the law has to focus on characteristics of individuals who might fall outside the majority for rights to be meaningfully interpreted and enforced.

These arguments do not suggest that there won’t be some real conflicts between religious institutions and individuals and legally-married same sex-couples about the scope of religious accommodations in this area. As noted earlier, lines will have to be drawn and competing interests balanced.

But given the common ground underlying the rights of both groups, there is more of a potential for alliances and compromises here than might appear at first glance. Respect begets respect. That ought to be the foundation for a conversation here that is long overdue.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law at the University of California, Davis, School of Law. He holds the Boochever and Bird Chair for the Study and Teaching of Freedom and Equality.



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