Civil Unions: Making Religious Exemptions Work
Geoff says he mistook my exemption proposal for Rick Garnett's, and that it was a reasonable mistake because either proposal leads to an endless slippery slope of unreasonable exemptions for bigots who claim to be religious. If that really happened, the legislature might have to amend otherwise appropriate exemptions. But there is little reason to expect it to happen.
Again, I don't want to speak for Rick, but our proposals are not that different. I have endorsed Rick's proposed statutory language, which is confined to cases in which providing services would violate the objector's sincerely held religious beliefs, and in its more recent versions, includes an express exception for cases where no one else is available to provide the service. We can make up hypothetical religious beliefs at will, and truth is sometimes stranger than fiction, but in actual experience in the United States, the objections come from people who believe they are being asked to celebrate or facilitate a sinful relationship to such an extent that they personally share in the responsibility for that relationship. My blog post simply elaborated what I understand Rick's statutory language to mean in practice.
What are the claims we have actually seen? The list has to be broader than same-sex marriage, because I don't actually know a same-sex marriage case yet. There is a wedding photographer in Albuquerque who refused to do a same-sex commitment ceremony. A printer in Vermont, several years ago, who refused to print brochures for an abortion clinic. Some small landlords who refused to rent bedrooms to unmarried same-sex couples. A doctor in California who refused to perform high tech efforts to impregnate one partner of a lesbian couple. That's all the reported cases I can think of. I'm writing this from memory and no doubt overlooking or forgetting something somewhere. But we're talking about a small number of cases -- none where the claim of personal responsibility is attenuated, and none where the claimant is a large business.
There is the unlitigated case of Catholic Charities in Massachusetts, which closed rather than place children with same-sex couples. But I take it that Geoff and I agree that Catholic Charities should be protected.
We do not get religious claims of a right to simply refuse to deal with gays and lesbians, even when they appear as couples. That is no accident. The religion that generates most of these claims in the U.S. proclaims its obligation to hate the sin but love the sinner. The gay and lesbian community finds that absurdly hypocritical, or just incomprehensible, but it is very real to the the believers. They have no desire to deprive same-sex couples of food, or plumbers, or most other goods and services in the economy. But some of them are scrupulous about their own conduct in facilitating what they believe to be the sexual immorality in that relationship.
The scarcity of claims is not explained by failure to legislate exemptions. About thirty states recognize a right to religous exemptions in general terms, either under the state Free Exercise Clause or under a state Religious Freedom Restoration Act. It is tougher to litigate under such general exemption provisions than under specific provisions that relieve the pressure on courts to balance interests, but the basis for a claim is clear enough.
Given the deep disagreement on these issues, why are there so few claims? It's hard to be sure, but it may be that neither side is as quick to litigate as law professors are prone to imagine. It may be that most same-sex couples are more interested in living their lives than in making martyrs. And it may be that there are sufficient social and economic pressures on potential conscientious objectors that only the most strongly motivated actually assert a claim.
I have also predicted that the number of objectors would likely decline over time. Geoff says that may not be true, but if it is, he calls into question the validity of the claimed objection. I agree that we can't be certain of predictions about the future, but I feel fairly confident about this one, especially if resistance is not periodically inflamed by fines or damage judgments imposed on conscientious objectors who do assert their claims. Why is this prediction consistent with my perception that for many people, conscientious objection to facilitating same-sex marriage is deeply held?
People change their religious views all the time, sometimes by dramatic conversion experiences, more often by gradual evolution. Some objectors will gradually change their mind about same-sex marriage, because of personal exposure to a loving and successful same-sex marriage, because of a pastor who shows a different way to read scripture, because of the influence of friends, family, children, or public opinion, or simply because same-sex marriage becomes established and familiar and turns out to do little harm. Some objectors will not change their mind about same-sex marriage, but will change their mind about the moral significance of their own indirect participation, for many of the same reasons and also because it will turn out that their refusal to participate has not the slightest effect on the rate of same-sex marriages. Some objectors will die or retire; there is a huge age skew in belief on these issues. Few objectors will adhere to their objection in principle but consciously give it up just to make a buck. But for people in the relevant businesses, economic pressure will reinforce, consciously or more often unconsciously, all the other reasons why people gradually change their minds.
There is all the difference in the world between this process of moral and religious evolution, on the one hand, and government coercing people to violate what they presently experience as deeply held commitments of conscience, on the other. The first is at the heart of religious liberty; the second is a form of tyranny.
This pattern is sadly familiar in human history. An oppressed minority argues persistently for liberty and equality until it acquires the power to oppress its former oppressors, and immediately begins to do so. And it is all so unnecessary. There is nothing in experience or reasonable political judgment to suggest that in a state that has the votes to enact same-sex marriage, there will be any systemic difficulty of implementation. There is no need to trample on the consciences of religious traditionalists in order to protect the liberty and equality of same-sex couples.
Geoff laments the inabililty to enact same-sex marriage in Illinois, and in the short run, religious exemptions may not change the political balance. But over the longer run, it is clear that religous exemptions reduce the stakes in this battle. Insisting on same-sex marriage legislation without religious exemptions will increase the resistance to enactment and the resistance to implementation, and maximize the difficulties with both. Even if there were nothing real at stake (which is far from the case), voting for same-sex marriage with religious exemptions lets a legislator say she was sensitive to both sides and protected the core rights of each.
I'm glad that Geoff at least is willing to protect religious institutions, and that Illinois seems willing to do so. This is better than several of the New England states have done. But I hope that the Illinois bill's supporters will at least take care to draft it unambiguously. As explained in my earlier post, the current draft simply invites litigation about the relationship between its two overlapping sentences.
Let me briefly comment on the comments to these posts, which made important points.
Bob said that the real problem that legalizing same-sex marriage will cause for traditional believers is that it will change social perceptions, and those with religious objections will more and more be perceived as simple bigots. That is probably inevitable, and it cannot be a reason not to enact same-sex marriage. If that were a reason not act, it would give the religious minority a veto over the liberty and equality rights of a different minority. The effect Bob fears is one of the pressures that will lead some traditional believers gradually to moderate their views. And it is part of the reason too many supporters of same-sex marriage resist religious exemptions now; they already see traditional believers as simple bigots instead of as a religious minority deserving of legal protection.
Uzair Kayani says that codifying exemptions is a good idea because if we leave the issue to constitutional litigation, courts might create exemptions that are too broad. They might, but the far greater likelihood is that courts guided only by state constitutions and state Religious Freedom Restoration Acts will create exemptions that are far too narrow. We know from experience that gay rights organizations will fiercely resist all claims to exemption, and that many judges are uncomfortable with religious exemption cases. When guided only by the general language of constitutions and RFRAs, judges are too slow to find burdens on the exercise of religion and too quick to find compelling government interests. The great value of more specific, legislated exemptions is that they indicate that the legislature agrees that there is no compelling interest in refusing all exceptions to its new policy. Even quite specific exemptions tend to be cautiously underenforced (another reason not to fear Geoff's slippery slope), but because they reduce the burden of judicial interest balancing, they are not so underenforced as more general provisions. Courts do indeed decide these cases case-by-case.
LAK says that the only difference between marriage and civil unions is the label, and a label is no big deal. This may underestimate the significance of the label, and even if this injury be considered only emotional, it is inflicted by the state itself, not by a fellow citizen with an equal right to space in which to live his own life. And quite apart from the symbolic inequality, there are credible reports that employers and bureaucracies do not understand civil unions or treat them as equivalent to marriages, so that couples in civil-union states have frequent hassles trying to actually claim the rights that the legislature meant to confer. If you don't believe that half a loaf is better than none, you will often go hungry, but civil unions for gays and marriages for straights is at best half a loaf. The differences are real.
Finally, Frank M. Cook says we should have civil unions as the legal relationship for all couples, gay and straight alike, and leave marriages to churches, synagogues, and mosques. Absolutely. The legal relationship of marriage and the religious relationship of marriage are two completely different things, and we have hopelessly commingled them in this country, to some extent in law and and almost totally in public understanding. Cleanly separating them would be an elementary application of separation of church and state, and it would take a good bit of the emotional heat out of the same-sex marriage debate. People who perceive marriage as principally a legal relationship support same-sex marriage; people who perceive marriage as principally a religious relationship oppose same-sex marriage by overwhelming margins. That poll is several years old now, and the numbers in each category may have changed, but I can't believe that the relationship between the two categories has changed.
I have been urging the clean separation of legal and religious marriage since shortly after the first Massachusetts decision, in 2004. The idea seemed so outlandish then that I couldn't get any newspaper to print an op ed proposing it. Now the idea is popping up everywhere. It's a long way from politically feasible, but it least it has become part of the debate.
I may not be able to continue this discussion; I have always wondered how people have time to read and write blogs, and I am no less mystified after having tried my hand at it myself. Other obligations loom. But I have discussed my views at some length here, and at greater length in the old media.
My Afterword in Same-Sex Marriage and Religious Liberty explores exemptions in greater depth and makes the case for separating legal and religious marriage. Marc Stern's chapter collects substantially all the cases in which gay rights claims are asserted to override free speech, free exercise, or other claims of constitutional right. Robin Fretwell Wilson's chapter explores the generally successful experience with statutory religious exemptions to participating in abortion -- exemptions that have had no significant effect on the availabililty of abortion. Chai Feldblum argues against exemptions and Charles Reid argues against separating religious from legal marriage. Doug Kmiec and Jonathan Turley explore issues of tax exemption and charitable campaigns. I am not likely to make the arguments better here than we made them there.