Michael Kavey Photo -Michael Kavey, a Lecturer-in-Law at Columbia Law School, researches and writes on issues concerning the equal rights of lesbian, gay, bisexual, and transgender people. He blogs frequently on LGBT youth issues on the website LGBT Youth Allies, and he recently published Slighting the Sex-Discrimination Claim in Hollingsworth v. Perry in the New York University Review of Law & Social Change. He worked at Lambda Legal from 2007-2010 and served as an Associate-in-Law at Columbia Law School from 2010-2012. Last week, Michael spoke at a conference at Central European University in Budapest, Hungary, about the claims by some individuals and organizations that recognition of same-sex marriage will threaten religious liberty. He has adapted part of his conference presentation for this post.

As the Supreme Court prepares this month to deliver decisions in two cases involving same-sex marriage—Hollingsworth v. Perry and United States v. Windsor—many of those bracing for the Court’s judgments are eager to see what, if anything, the Justices might say about religious liberty. While arguments about religion do not feature prominently in the parties’ submissions, numerous organizations have submitted amicus curiae briefs arguing that the cases’ outcome could implicate religious freedom in various ways.

I recently had the opportunity to examine the religious-liberty arguments submitted to the Court, and to engage with one of the authors of the amicus brief filed by the Becket Fund for Religious Liberty. The Becket Fund brief is worth considering closely, in part because several other briefs—including one of the briefs from the proponents of California’s Proposition 8—expressly rely on its conclusions. The Becket Fund brief also merits attention because it sets forth the religious-liberty-based objections to marriage equality more comprehensively than most of the other briefs that touch on the issue. As marriage-equality supporter and religious-liberty scholar Douglas Laycock observes in a separate brief, the Becket Fund brief contains “[t]he most complete exposition of th[e] argument” that Proposition 8 and the Defense of Marriage Act (DOMA) are constitutional because they “protect the religious liberty of those with conscientious objections to same-sex marriage.” Finally, unlike some of the arguments presented in other religious-liberty briefs, the Becket Fund’s arguments may impact the political debate—not just the constitutional debate—over marriage equality. If we assume, as most observers do, that the Supreme Court will refrain from mandating nationwide marriage equality in the cases now before it, the Becket Fund’s religious-liberty arguments will continue to have salience as the debate over these issues moves forward in state legislatures across the country.

That the Becket Fund brief deserves close consideration does not mean, however, that it is persuasive. It is not. The brief suffers from several major flaws, three of which I’ll highlight in this post: First, while the brief claims to identify a threat to religious liberty, it misidentifies the source of the purported threat, and it utterly fails to demonstrate how government discrimination against same-sex couples will adequately or appropriately resolve the alleged problem. Second, the brief omits crucial information about some of the cases it cites, and it relies on some authorities that do not support the propositions for which they are cited. Third, the brief fails to account adequately for the fact that its approach to religious liberty could justify discrimination of many kinds, including forms of discrimination that the Supreme Court has long held unconstitutional.

Should the Government Protect a Right to Discriminate by Engaging in Discrimination?

The Becket Fund brief posits that “legal recognition of same-sex marriage, without more, would create widespread conflicts with religious liberty”; these conflicts, the organization claims, are “real, deeply rooted, and far-reaching.” In the Becket Fund’s view, the “threat to religious liberty” posed by same-sex marriage “unquestionably provided a rational basis” for Congress to enact DOMA (which bans federal recognition of valid same-sex marriages) and for California voters to approve Proposition 8 (which bans same-sex marriage in the state).

To support this position, the Becket Fund catalogs a series of conflicts that have arisen, or that may arise, between lesbian, gay and bisexual people (or government actors supporting them), on the one hand, and religious opponents of homosexuality and same-sex marriage, on the other. For example, the brief points to cases involving religious business owners who faced lawsuits for refusing to provide services to same-sex couples. To minimize these conflicts, the brief argues, the Court should leave the issue of marriage equality to voters and to legislators, who are better situated to adopt “exemptions” for those who object to same-sex marriage on religious grounds.

The brief’s fundamental flaw lies in the fact that the conflicts it describes with respect to religious liberty do not actually arise from government recognition of same-sex marriage. That is, they do not arise because the government grants same-sex couples equal access to the public recognition and abundant public benefits (and responsibilities) that define the marital relationship. The conflicts arise, rather, from certain applications of antidiscrimination laws and related policies to religious individuals and organizations. These laws and policies may impose burdens on religious opponents of homosexuality or require them to make tough choices between government subsidies and discrimination based on sexual orientation, but this is true regardless of whether the government itself recognizes or grants public benefits to same-sex couples through marriage.

Consider, for example, the famous and frequently cited case of Elane Photography, LLC v. Willock, which involves a photography business in New Mexico that was sued for its refusal to provide services to a same-sex couple holding a commitment ceremony. According to the state’s Human Rights Commission, the refusal constituted unlawful discrimination based on sexual orientation; the Commission rejected the business’s argument that the discrimination was constitutionally protected because it was based on religious beliefs. (The case is now on appeal to the New Mexico Supreme Court.) The Becket Fund and several other amici in Windsor and Perry appear to believe that Elane Photography exemplifies the sort of conflict with religious liberty that may arise because of same-sex marriage. But Elane Photography (and cases like it) did not arise because of state recognition of same-sex marriage; indeed, New Mexico does not authorize same-sex marriages, civil unions, or domestic partnerships. The dispute arose, rather, because the state has aggressively enforced its law prohibiting sexual-orientation discrimination in public accommodations. The state may very well continue to do so even if it never recognizes same-sex marriage.

In short, even if we assume that Elane Photography and similar cases illustrate some sort of problem, that problem is not government recognition of same-sex marriage.

The Becket Fund and other amici would likely respond by arguing that antidiscrimination norms will work in conjunction with government recognition of same-sex marriage to create new, more severe burdens on those who wish to discriminate against same-sex couples. The Becket Fund brief, for example, includes a 100-page appendix with excerpts of various antidiscrimination laws that the organization claims could be “triggered” by government recognition of same-sex marriage. But this only proves my point: The Becket Fund fears that antidiscrimination laws affecting various private religious actors will be “triggered” in ways that the organization finds problematic for religious liberty.

If that’s the case, then the Becket Fund should simply continue its push for exemptions to antidiscrimination laws. The solution, in other words, should target the problem. It is not fair or rational, however, to safeguard private actors’ purported right to engage in discrimination against gay people by enacting (or preserving) laws that require the government to discriminate against gay people as well. Private individuals and organizations do not need a legal “exemption” from the government’s equal treatment of gay couples, and withholding government benefits from same-sex couples is not a rational or proportionate method of protecting private actors’ religious liberty.

The mismatch between the conflict identified by the Becket Fund brief and the solution it endorses becomes particularly clear when we consider the effects of DOMA, and more specifically, the effects that DOMA had in United States v. Windsor. When respondent Edie Windsor’s wife passed away, the federal government, relying on DOMA, demanded that Ms. Windsor pay hundreds of thousands of dollars in inheritance taxes that she would not have had to pay if the government recognized her marriage. The Becket Fund brief does not even attempt to explain how the federal government’s taxation of Edie Windsor enhances anyone’s religious liberty. Nor does the Becket Fund explain how the federal government protects religious liberty by discriminating against married gay couples in other areas of law affected by DOMA—such as immigration, social security, disability benefits, and Medicare. The brief’s failure on this front again underscores the fact that the threat to religious liberty feared by the Becket Fund does not arise from government recognition of same-sex marriages.

Misrepresenting the Threat to Religious Liberty

The Becket Fund brief is also problematic because it cites several authorities that do not support its claims, and it fails to mention crucial facts about the holdings of several cases. In addition to damaging the organization’s credibility, these omissions and off-point citations undermine the integrity of the judicial process, distort the public debate, and add insult to the very real injuries inflicted by the laws that the Becket Fund defends. They also make it difficult if not impossible to evaluate the truth of some of the brief’s assertions.

In its attempt to portray same-sex marriage as a threat to religious liberty, for example, the Becket Fund claims that “[r]eligious institutions and their related ministries are facing increased risk of being declared places of public accommodation, and thus being subject to legal [antidiscrimination] regimes designed to regulate secular businesses. For example, some laws require church halls be treated as public accommodations if they are rented to non-members.” The only authority cited for this assertion, however, is a document discussing hypothetical interpretations of an ordinance that was proposed and rejected in Hutchinson, Kansas. It is difficult to take the alleged threat to religious liberty seriously if the Becket Fund’s only authority on this point is a hypothetical interpretation of a non-existent law.

Elsewhere in the brief, the Becket Fund laments that unmarried couples have successfully relied on laws prohibiting marital-status discrimination to sue landlords who have denied them housing for religious reasons. The brief warns that “legally married same-sex couples would have comparatively stronger protection” under these marital-status antidiscrimination laws, because “public policy tends to favor and subsidize marriage as an institution.” The brief then points to a 2001 housing discrimination case, Levin v. Yeshiva University, as “an example” of the alleged problem. The brief fails to mention, however, that Levin, issued by New York’s highest court, did not involve any religious liberty issues. “All parties agree,” the state’s Court of Appeals explained, “that Yeshiva’s religious affiliations have no bearing on this appeal.” The case is therefore not “an example” of any point the Becket Fund is trying to make.

The Becket Fund also refers to several cases involving the Boy Scouts of America (BSA) and affiliated organizations, claiming, for example, that because of the BSA’s religious tenants and its religiously motivated requirement that Scouts not engage in homosexual conduct, the organization has “had to fight to gain equal access to public after-school facilities.” The only case cited for that claim, however, is a case in which the Boy Scouts won the right to use a school facility. The brief not only fails to note the BSA’s victory, but it also fails to mention that Congress later adopted a law—the “Boy Scouts of America Equal Access Act”—specifically protecting the BSA’s access to school facilities. So while it may technically be true (at least in one case) that the BSA “had to fight to gain equal access to public after-school facilities,” the BSA has definitively won that battle.

The brief also claims that because of the BSA’s religious beliefs, the organization “lost . . . a lease to a government building [in Philadelphia] that served as [its] headquarters for 79 years.” The brief omits key information about this case as well: First of all, the Boy Scouts could have avoided eviction by agreeing to pay rent, which they refused to do. Second and more importantly, the local BSA organization sued the city and won. Then, while the city’s appeal was pending, the BSA voluntarily agreed as part of a settlement to vacate the building, and it received $825,000 from the city. To state without elaboration that the BSA “lost” its lease, therefore, is highly misleading, at best.

In two additional cases cited by the Becket fund, the BSA (or an affiliated group) did lose access to government benefits because of its discriminatory policies. But neither of those cases (nor the other cases mentioned above) involved government recognition of same-sex relationships, much less did they involve any claim that the Boy Scouts must recognize same-sex relationships, civil unions, or marriages. Like many other scenarios described by the Becket Fund, the cases only show, at most, that policies tying government benefits to antidiscrimination requirements—which exist independently of same-sex marriage—may pose a dilemma for organizations that wish to discriminate while still receiving government subsidies.

Like other briefs filed in the marriage cases, the Becket Fund also highlights the case of Julea Ward, who was expelled from a Michigan graduate school program in counseling because she said she could not, for religious reasons, counsel gay and lesbian clients about their same-sex relationships. The brief relies on Ms. Ward’s case to demonstrate a threat to religious liberty, but yet again it fails to mention a crucial fact: A federal appeals court ruled in favor of Ms. Ward, holding that her claim for religious discrimination could go forward. The Becket Fund even issued a press release about the case last year, calling it a “major victory for the constitutional rights of individuals with religious beliefs.” The Becket Fund does not explain how the case can simultaneously represent a threat to and a “major victory” for religious liberty.

To be fair, many of the Becket Fund’s citations do in fact demonstrate a real or potential conflict between antidiscrimination policies and religiously motivated discrimination by private individuals and organizations. For reasons already explained, however, there’s nothing in the law to support the Becket Fund’s proposition that the government may reasonably choose to exclude same-sex couples from the myriad public benefits of marriage in order to protect the right of private individuals and organizations to discriminate against gay people or same-sex couples.

Other Forms of Religiously Motivated Discrimination

The argument that it’s rational to ban same-sex marriage to protect people who oppose same-sex marriage raises the question of whether it’s rational or fair to ban any other behaviors or relationships in order to protect the liberty of people who oppose them.

There’s absolutely nothing new, after all, about large numbers of people holding religious or philosophical objections to all sorts of behaviors that we allow (and even sometimes encourage). Some religious people may object—and historically many religious people have objected—to interracial marriage, interfaith marriage, integrated schooling, coeducational schooling, women working outside the home, women wearing pants, and men wearing dresses. A person might also cite religion to oppose rights and opportunities for the elderly, for people with disabilities, for the poor, or for those who have previously been incarcerated. However the government might deal with these religious beliefs when it comes to the enforcement of antidiscrimination laws, there is a general consensus (thankfully) that it is not appropriate to prohibit, discourage or refuse to recognize every behavior or relationship to which a religious person might object. Why should we change our approach when it comes to same-sex marriage?

The Becket Fund’s only answer to this question is to suggest that because “so many major religious groups center their teachings regarding sexual morality around opposite-sex marriage,” same-sex marriage “triggers a distinct set of religious liberty concerns.” But there have been times when most religious groups also strongly favored other forms of discrimination. The Becket Fund offers no principled basis for distinguishing these other forms of discrimination or for restricting its radical vision of religious liberty to the government’s treatment of gay people. This alone provides reason to reject the brief’s arguments.

The Becket Fund’s weak attempt to distinguish discrimination against same-sex couples from other forms of discrimination bears resemblance to a suggestion made in a separate amicus brief that religiously motivated discrimination against gay people is somehow easier to justify than discrimination based on “morally neutral” traits like race. Not every religious person, however, views race (or interracial marriage) as “morally neutral.” It is firmly established, moreover, that the government would violate religious liberty if it privileged certain religious beliefs over others on the ground that some religious views are more rational, more justified, less offensive, or more theologically well-founded. The very process of engaging in that inquiry is an affront to religious autonomy.

* * *

In the end, therefore, even the most comprehensive and widely cited religious-liberty brief filed in support of Proposition 8 and DOMA fails on numerous levels. If over-zealous application of antidiscrimination laws truly poses a threat to religious freedom, we should engage (or continue to engage) in a debate over what exemptions to antidiscrimination law might be appropriate. Nobody, however, needs a legal “exemption” from same-sex marriage itself.

Comments are welcome at mkavey1@law.columbia.edu

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