Private: After Obergefell: Balancing Religious Accommodation Against the Rights of Others

by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

*This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

The Supreme Court’s forthcoming decision in Obergefell v. Hodges brings the issue of marriage equality once again to a place of prominence in the national conversation.  Unsurprisingly, the intensity of opposition from those with religious convictions against “changing” the definition of marriage to include gay and lesbian couples has only grown, fueled by the prospect that the Court may extend its decision in United States v. Windsor and hold that the Constitution requires all 50 states to treat same-sex couples equally.

The gathering storm is easy to see.  A federal court ruling striking down Alabama’s ban on marriage recognition was met with a furious, theologically-driven backlash led by state supreme court Chief Justice Roy Moore, who explained his opposition to marriage equality by saying, “It takes away the very definition ordained of God.  A different definition destroys the definition of marriage.”  On the legislative front, Indiana passed a “Religious Freedom Restoration Act” (RFRA) at the urging of anti-gay religious activists, carving out protection for those with religious objections aghast at even the potential they might be compelled by anti-discrimination laws to participate in marriage ceremonies.  Assuming that the pure rejectionist camp is unsuccessful in trying to engage in 1950s-style “massive resistance” to a pro-equality ruling in Obergefell, the real issue comes down to what, if any, sort of religious exemptions should be considered for those who do not wish to participate in the weddings of same-sex couples.

A number of years ago, I wrote a chapter entitled ‘The Special Status of Religion Under the First Amendment . . . and What it Means for Gay Rights and Antidiscrimination Law’ in the book Moral Argument, Religion, and Same-Sex Marriage. There, I argued that we should balance the religious freedom and equality values that are at play in this debate.  Both the Free Exercise Clause and the Equal Protection Clause protect core constitutional values, so neither should trump the other.  Instead, both demand our respect and attention.

Specifically, I suggested this balancing should take the following form: We should permit religious exemptions from antidiscrimination laws that protect gay men and lesbians from discrimination on the basis of sexual orientation.  However, any employer or business that asserts a religious right to discriminate is withdrawing from our shared social contract which includes the commitment to refrain from discrimination, doing considerable damage to the fabric of our national commitment to equality.  This should come with a price: The discriminator should be ineligible to participate in the benefits of that social contract, by, for example, qualifying as a government contractor.  In a nutshell, the religious objector who wishes to withdraw must truly withdraw, and cannot enjoy the benefits of being both a full participant and a conscientious objector.

But much has changed since 2009, when I proposed that way of balancing these competing constitutional values.  The backdrop for that proposal was a set of Supreme Court decisions that had limited the scope of permissible accommodations.  Dating back to its decision in TWA v. Hardison, the Court has weighed the rights of third parties affected by religious accommodations.  In Hardison, the Court held that to require an employer and co-workers to bear more than a de minimis cost to give a religious worker his preferred schedule would constitute an “undue hardship.”  This would favor religion over non-religion – raising serious Establishment Clause concerns.

More recently, however, the Supreme Court has shifted in a way that would make religious accommodations more harmful to the equality rights of same-sex couples in a post-Obergefell world.  In Burwell v. Hobby Lobby, the Court gave scant consideration to the rights of third parties when it allowed a corporation to invoke the federal RFRA to avoid the Affordable Care Act’s mandate to provide contraceptive coverage to its employees.  In accepting Hobby Lobby’s claim, the Court ignored the burden on employees from losing ACA insurance coverage.  Indeed, Justice Ginsburg accused the majority of sanctioning claims for religious exemptions that would permit all kinds of discrimination in hiring and public accommodations.  Justice Alito responded by saying only that his analysis would not permit racial discrimination.  His silence about the validity of RFRA as a shield against other claims was deafening.  There is a profound danger that under Hobby Lobby, RFRA would allow religion to trump the rights of victims of sexual orientation discrimination, including married same-sex couples, instead of being balanced against them.

The right approach balances the constitutional interests and values at stake.  Unfortunately, the Supreme Court has forgotten this crucial piece of the puzzle.  We should still seek to balance religious freedom and equality, but the critical first step is that the Court must return to the approach it utilized in Hardison of carefully considering the hardship to others when interpreting and applying religious accommodation provisions.  In a post-Obergefell era of constitutionally protected marriage equality, ensuring that those rights are real and meaningful requires that religious accommodations be carefully limited.

Civil rights, Equality and Liberty, Individual liberties, LGBTQ Equality, Supreme Court