The Columbia Law School's Center for Gender & Sexuality Law has issued a memorandum (PDF) on "Proposed Conscience or Religion-Based Exemption for Public Officials to Solemnize Marriages."
(Americans United for the Separation of Church and State issued a similar memo (PDF) last week.)
Given some recent discussions here, and the legal opinions of some of our (more prolific) resident lawyers, I'm interested in their opinions versus that of Columbia Law School.
Follow me below the fold for highlights from the memorandum.
I'm not a lawyer or constitutional scholar, so I cannot offer any analysis from a legal perspective, as that would be intellectually dishonest.
(I could provide a sociological/sociocultural analysis, and when I have, I've tried to make clear that I'm looking at the issue from a far wider perspective that transcends law even while not challenging it, but so far said efforts have proven to be rather frustrating.)
Here are some of the passages I found relevant to the points of arguments made in discussions of this issue, along with some brief commentary.
This legal memorandum analyzes the legality of these “marriage license exemption proposals” under the First and Fourteenth Amendments to the U.S. Constitution and Title VII of the Civil Rights Act of 1964. (The memorandum does not examine their legality under the federal Religious Freedom Restoration Act, or RFRA, as RFRA does not apply to state or local employees.
The memorandum concludes that nothing in the Constitution or in Title VII requires such exemptions. Instead, adopting such exemptions by statute or policy would violate fundamental constitutional rights to liberty and equality as well as the First Amendment’s prohibition against the establishment of religion [my emphasis].
Proponents of religion or conscience-based exemptions for public officials empowered to issue marriage licenses argue that the general duty to serve all must yield when the performance of a public function conflicts with private religious belief or conscience. Advocates of this view provide no legal authority for this proposition. Nor can they find any such support in constitutional or statutory law. Professors Robert Tuttle and Ira Lupu, highly respected scholars of religious liberty, have written, “under both the equal protection clause of the 14th Amendment, and related equality provisions of state constitutions, [] state officers have duties of equal respect to all persons within the state. It is very difficult to see how one can square such a duty with a right, religion-based or otherwise, to refuse to provide public services to a particular class of individuals.
In a recent comment, I asked (perhaps a bit cheekily, though sincerely) whether the Amendments were ranked: does the First supersede, or at least
precede, the Fourteenth? (I never got a serious answer other than they were not ranked. That wasn't really the question.)
The First Amendment’s Free Exercise Clause Does Not Require A Conscience Or Religion-Based Exemption For Public Officials Charged With Issuing Marriage Licenses
The Supreme Court’s opinion in Obergefell affirms the clear rule that public officials do not have a constitutional right to opt out of their otherwise obligatory statutory duties... Thus the arguments advanced by the advocates of “marriage license exemption proposals” that such exemptions are required by the First Amendment clearly misstate the current state of the law.
Policies that allow or require an objecting official to delegate to another person the task of marrying couples whose marriage they find objectionable do not, thereby, avoid offense to the notion of equal protection of the laws. The Court’s ruling in Obergefell rejects this purported accommodation of a competing right, instead noting that it amounts to another form of state-sponsored discrimination. [my emphasis]
And the point I've been trying to make from a sociological perspective:
To allow couples to exercise that fundamental right if and only if a public official who does not find their marriage offensive is available reinforces the kind of stigma that the Court found constitutionally suspect in Obergefell. This constitutional injury would not be avoided by creating a system whereby public officials who object to marrying certain couples on the grounds of religion or conscience might step aside and find a colleague who does not hold similar beliefs to marry these couples. The humiliation caused by judgment, discrimination and stigma from an official acting on the state’s behalf is not erased when the state successfully completes a search for an official willing to marry a couple already so judged. [my emphasis]
Specific discussion of the Title VII aspect:
Public officials who seek to avoid marrying same-sex couples based on religious beliefs or conscience might argue that Title VII mandates that their employer accommodate their religious beliefs. This claim is misplaced, as Title VII does not require the accommodation of public employees who refuse, on account of a religious objection, to perform their duties for all citizens equally. ... Thus, Title VII neither justifies nor requires the proposed accommodations for religious or conscience-based objections to issuing marriage licenses. To the contrary, under Title VII public employers would be protected in a decision to terminate a public official who refuses to issue a marriage license on the ground that it would offend his or her religious beliefs or conscience to do so. Because of the negative impact on public confidence in state and local officials, such requests for accommodation or exemption from duty would clearly impose an undue burden on their employers far more onerous than the de minimus [sic] threshold anticipated by Title VII. [my emphasis]
The memo concludes,
The case that is made for the “marriage license exemption proposals” is not justified in either well-established constitutional law or in statutes that prohibit discrimination on the basis of religion. Rather, these proposals will violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment, and the Establishment Clause of the First Amendment.
I sincerely hope that in the interest of intellectual integrity (a value I hold dear both as an academic and as a progressive), those interested in discussing this read the memorandum in its entirety, for the analysis therein goes further than the excerpted passages.
I believe publishing a diary here entails a serious responsibility to the community, and this includes a respect (even if grudging) to those who comment earnestly and in good faith, regardless of their opinions. I will comment when I feel I can do so with integrity; however, as I stated above, I cannot in good conscience proffer analysis from a legal perspective.
Thank you.