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Monday, October 28, 2013
Law Profs: SB1 Does Not Protect Religious Freedom
By News Release @ 2:33 PM :: 6253 Views :: Family, First Amendment

by Douglas Laycock, Thomas C. Berg, Bruce Ledewitz, Christopher C. Lund, and Michael J. Perry (Submitted as testimony on SB1)

We write in support of same-sex marriage and in support of religious liberty. Senate Bill 1 should be amended to include far more robust protections for religious liberty. Then the bill should be passed. Only in that way will the legislature protect the liberty of all Hawaiians—both same-sex couples and religious conscientious objectors.

The signers of this testimony have devoted much of their careers to studying, teaching, and writing about the law of religious liberty in general, and the religious liberty issues arising from same-sex marriage in particular. One of us is co-editor of the leading book on the subject, Same-Sex Marriage and Religious Liberty: Emerging Conflicts(Rowman & Littlefield 2008) (Douglas Laycock, Anthony R. Picarello, & Robin Fretwell Wilson, eds.). Each of us is employed by a public or private university, but of course our universities take no position on the issues before the Committee. We testify in our personal capacity as scholars. We provide more information about ourselves at the end of this Statement.

We support same-sex marriage. We think that Senate Bill 1 can be a great advance for human liberty. But careless or overly aggressive drafting could create a whole new set of problems for the religious liberty of those religious believers who cannot conscientiously participate in implementing the new regime. The gain for human liberty will be severely compromised if same-sex couples now force religious dissenters to violate their conscience in the same way that those dissenters, when they had the power to do so, used to force same-sex couples to hide their sexuality. Conservative religious believers should not be allowed to veto same-sex marriage for those who want it, but neither should they be forced to directly facilitate it in violation of their understanding of God’s will.

Same-sex couples and traditional religious believers should not be at war with one another. Members of each group seek to protect a core part of their identity from interference by the state. Each seeks to manifest that identity in public practice, not confined to mere belief or orientation. Each is misunderstood and vilified by its opponents—far too often, each group vilifies the other. Each deserves legal protection for its deepest commitments.

It is important to keep in mind that marriage is both a legal relationship and a religious relationship. The profound religious significance of marriage means that many religious organizations and individual believers experience marriage equality as reaching deep into a fundamentally religious institution. The challenge for any bill is to equalize civil marriage while preserving religious control over religious marriage. Senate Bill 1 has not yet accomplished the task.

The religious exemptions in the current draft of Senate Bill 1 address only a small part of the problem. Existing religious exemptions in Hawaii civil rights laws fill another small part of the gap. But many issues remain to be addressed.

I. Religious Organizations

The proposed sections 572-E and 572-F of the Revised Statutes (created by § 2 of Senate Bill 1) protect the refusal to solemnize a marriage and the refusal to provide physical facilities for the solemnization of a marriage. Section 572-F appears to distinguish “solemnization” from “celebration,” and to protect only with respect to “solemnization.” That is, these sections do not even protect churches from having to host the wedding reception.

The issue of solemnization is important, but it is only the most obvious part of the issue for religious organizations. A bill that addresses only solemnization would do less to protect religious liberty than any other state that has enacted same-sex marriage by legislation. Equally important, and far more likely to be litigated, is the issue ofrecognition of same-sex marriages by religious organizations for purposes of carrying out their religious missions.

A religious organization, in the course of carrying out its religious mission, cannot in good conscience treat as married two persons whose relationship fundamentally violates the religious organization’s understanding of marriage. Must the pastor provide pastoral counseling for a same-sex married couple? Must a church employ spouses in same-sex marriages—spouses that are publicly defying the church’s teaching on marriage? A religious-liberty provision addressed only to solemnization neglects these and many similar issues.

II. Individuals

Senate Bill 1 provides no protection for individuals who provide services to help celebrate weddings or professional services to help sustain marriages. This omission threatens serious harm to a religious minority while conferring no real benefits on same-sex couples. Same-sex couples will rarely if ever actually want such personalized services from providers who fundamentally disapprove of their relationship, and they will nearly always be able to readily obtain these services from others who are happy to serve them.

It is one thing to say that a substantial business, with numerous employees to serve its customers, should serve all comers. It is quite another thing to say that an individual, or a very small business that is essentially an extension of an individual owner who is deeply involved in serving every customer, should have to provide personal services in violation of conscience. The few such owners who object typically believe marriage to be a fundamentally religious relationship, and believe facilitating a same-sex marriage to be a profound personal sin with respect to a religious matter.

It is not in the interest of the gay and lesbian community to create religious martyrs when enforcing the right to same-sex marriage. To impose legal penalties or civil liabilities on a wedding planner who refuses to do a same-sex wedding, or on an individual marriage counselor who refuses to provide marriage counseling to same-sex couples, will simply ensure that conservative religious opinion on this issue can repeatedly be aroused to fever pitch. Every such case will be in the news repeatedly, and every such story will further inflame the opponents of same-sex marriage. Refusing exemptions to such religious dissenters will politically empower the least reconcilable opponents of same-sex marriage. It will ensure that the issue remains alive, bitter, and deeply divisive.

It is far better to respect the liberty of both sides and let same-sex marriage be implemented with a minimum of confrontation. Let the people of Hawaii see happy, loving, committed same-sex marriages in their midst; let them see (this cannot be helped) that some of those marriages fail, just as many opposite-sex marriages fail; let them see that these same-sex marriages, good and bad, have no effect on opposite-sex marriages. Let the market respond to the obvious economic incentives; same-sex couples will pay good money just like opposite-sex couples. Let same-sex marriage become familiar to the people, and do these things without oppressing religious dissenters in the process. Same-sex marriage will be backed by law, backed by the state, and backed by a large and growing number of private institutions. The number of dissenters will continue to decline, as minds continue to change and as others acquiesce in the new circumstances and in the live-and-let-live traditions of the American people. The number of individuals in business or professional settings who assert their right to conscientious objection will be small in the beginning, and it will plunge still further over time if deprived of the chance to rally around a series of martyrs.

Exemptions for religious conscientious objectors will rarely burden same-sex couples. Few same-sex couples in Hawaii will have to go far to find merchants, professionals, counseling agencies, or any other desired service providers who will cheerfully meet their needs and wants. And same-sex couples will generally be far happier working with a provider who contentedly desires to serve them than with one who believes them to be engaged in mortal sin, and who grudgingly serves them only because of the coercive power of the law. Statutory drafting can provide for the rare cases where these suppositions are not true, such as a same-sex couple on one of the smaller islands that may have reasonably convenient access to only one provider of some secular service. Such cases are no reason to withhold religious exemptions in the more urban areas where most of the people—and most of the same-sex couples—actually live.

III. Proposed Statutory Language

Another group of scholars, led Professor Edward McGlynn Gaffney, has also submitted testimony. That group includes supporters, opponents, and undecideds on the issue of same-sex marriage. Those of us joining in this statement wanted to be free to emphasize our support for same-sex marriage, so we are testifying separately. Both groups—the supporters, the opponents, and the undecideds—are agreed on the need for more complete religious exemptions.

The Gaffney group’s analysis of potential legal conflicts is accurate. Its survey of what other states have enacted is accurate. And it offers carefully drafted statutory language to reconcile same-sex marriage with religious liberty. This statutory language has been refined over the years in light of debates in other states. It anticipates the range of issues likely to arise and addresses them with care, balance, and attention to the essential rights and needs of both same-sex couples and religious conscientious objectors. It should be added to Senate Bill 1, as a substitute for proposed sections 572-E and 572-F.

The Gaffney group’s language would protect only religious organizations, religious individuals, and very small businesses that are essentially personal extensions of the individual owner. It would protect individuals and businesses only when some other business is reasonably available to provide the same service. It would not prevent even one same-sex marriage; it would not make same-sex marriages difficult to celebrate or sustain. But it would protect religious liberty—also a constitutional interest and one that is equally important.

At the very least, any bill on same-sex marriage should protect decisions about “recognition” as well as decisions about “solemnization.” Proposed section 572-E could be amended as follows:

572-E. Refusal to solemnize or recognize a marriage. Nothing in this chapter shall be construed to require anyNotwithstanding any other law to the contrary, no clergy, minister, priest, rabbi, officer of any religious denomination or society, or and no denomination, religious society, or religiously affiliated not-for-profit organizationnot having clergy but providing solemnizations that is authorized to perform solemnizations pursuant to this chaptershall be required to solemnize or recognize any marriage. No such person who fails or refuses to solemnize or recognize any marriage under this section for any reason shall be subject to any fine, penalty, injunction, administrative proceeding, or other civil liability for the failure or refusal.

The more carefully drafted language in the Gaffney group’s testimony would be better for both sides—more protective of religious objectors in some ways, more protective of same-sex couples in other ways. It is more protective of both sides because it more carefully attends to the interests of both sides. That language would be the better solution. But if the Senate chooses to work within the structure of the current bill, the amendments just suggested to section 572-E would be a reasonably workable solution and far better than nothing.

IV. Constitutionality

Some legislators have expressed concern that religious exemptions may be unconstitutional. There is no basis for such a fear.

The emerging law of sexual orientation and same-sex marriage is that government may not discriminate against same-sex couples. Nothing in that body of law suggests that government may not also protect religious liberty. The Supreme Court has repeatedly, and unanimously, upheld religious exemptions from regulation against constitutional attack. The most recent example is Cutter v. Wilkinson,[1] unanimously upholding the religious exemptions for prisoners required by the Religious Land Use and Institutionalized Persons Act.[2]

More directly relevant here, Corporation of the Presiding Bishop v. Amos[3] unanimously upheld a religious exemption from the discrimination laws that lets religious organizations hire and fire on the basis of religion. The Court rejected both an Establishment Clause attack[4] and an equal protection attack.[5] “This Court has long recognized that the government may (and sometimes must) accommodate religious practices,”[6] the Court said, and government is free to do so when it acts “with the proper purpose of lifting a regulation that burdens the exercise of religion.”[7] The Court’s point about legislative purpose is important; the purpose of including religious exemptions is to protect religious liberty. There is no purpose to harm same-sex couples who are granted the right to marry in the same bill. So nothing in the Court’s gay-rights cases[8] changes its analysis of religious exemptions to protect the rights of conscience.

An exemption may be unconstitutional if there is no burden on religious exercise to be relieved, or if it imposes significant burdens on third parties. But as Amos shows, mere loss of access to employment or other affirmative benefits from a religious organization is not a cognizable burden on others. The regulatory exemptions we have proposed leave same-sex couples free to live their lives without imposing on religious organizations or believers, and leave religious organizations and believers free to live according to their faith by steering clear of same-sex couples, neither affirmatively facilitating their marriages nor affirmatively imposing any burdens on them. The language in the Gaffney group’s testimony is carefully drafted to avoid burdens on same-sex couples.

All nine Justices approved of legislative religious exemptions in separate opinions in Board of Education v. Grumet,[9] and in Employment Division v. Smith.[10] And in a case that struck down an exemption because the Court thought there was no burden on religious exercise to be relieved, eight Justices in separate opinions explicitly reaffirmed Amos, and the ninth (Justice White) had written the opinion in Amos.[11] The Senate would act in the highest constitutional and civil liberties tradition if it authorized same-sex marriage and simultaneously protected religious liberty with respect to those marriages.

V.            Conclusion

Enacting the right to same-sex marriage with generous exemptions for religious dissenters is the right thing to do. It respects the right of conscience for all sides. It protects the sexual liberty of same-sex couples and the religious liberty of religious dissenters. It is obviously better for the traditional religious believers; because it creates no martyrs and reduces civil conflict, it is also better for the same-sex couples. Because it is better for both sides, it is better for Hawaii. The language proposed in the Gaffney group’s testimony would protect the liberty of both sides. We urge you to add it to Senate Bill 1 or to any other bill on same-sex marriage.

At the very least, the bill should protect “recognition” of marriages, and not just “solemnization” of marriages.

Each of us signs this letter in our individual capacities; none of our employers takes a position on the issues we address. We are available to discuss these issues further if that would be of any benefit. Each of our e-mail addresses is in the Appendix.


Douglas Laycock is the Robert E. Scott Distinguished Professor of Law and Professor of Religious Studies at the University of Virginia. He is also the Alice McKean Young Regents Chair in Law Emeritus at the University of Texas. He may be reached at dlaycock@virginia.edu.

Thomas C. Berg is the James Oberstar Professor of Law and Public Policy at the University of St. Thomas (Minnesota). He may be reached at tcberg@stthomas.edu.

Bruce S. Ledewitz is Professor of Law at Duquesne University. He may be reached at ledewitz@duq.edu.

Christopher C. Lund is Associate Professor of Law at Wayne State University. He may be reached at lund@wayne.edu.

Michael J. Perry is the Robert W. Woodruff Professor of Law at Emory University. He may be reached at mjperry@emory.edu.

[1] 544 U.S. 709 (2005).

[2] 42 U.S.C. § 2000cc et seq. (2006).

[3] 483 U.S. 327 (1987).

[4] Id. at 334-39.

[5] Id. at 338-39.

[6] Id. at 334.

[7] Id. at 338.

[8] United States v. Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996).

[9] 512 U.S. 687, 705 (1994) (stating that “the Constitution allows the state to accommodate religious needs by alleviating special burdens;” reaffirming Amos); id. at 711-12 (Stevens, J., concurring) (distinguishing the facts ofGrumet from “a decision to grant an exemption from a burdensome general rule”); id. at 716 (O'Connor, J., concurring) (“The Constitution permits ‘nondiscriminatory religious-practice exemption[s]”’ (quoting Employment Division v. Smith, 494 U.S. 872, 890 (1990) (emphasis by Justice O'Connor, meaning that exemptions cannot discriminate among faiths)); id. at 723-24 (Kennedy, J., concurring) (approving Amos and similar cases); id. at 744 (Scalia, J., dissenting) (“The Court has ... long acknowledged the permissibility of legislative accommodation.”).

[10] 494 U.S. 872, 890 (1990) (“a nondiscriminatory religious-practice exemption is permitted”); id. at 893-97 (O’Connor, J., dissenting) (arguing that regulatory exemptions are not only permitted, but also constitutionally required).

[11] See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (plurality opinion) (approving Amos); id. at 28 (Blackmun, J., concurring) (approving Amos); id. at 38-40 (Scalia, J., dissenting) (arguing that regulatory and tax exemptions are generally permitted and sometimes required). Justice White's brief concurrence said nothing about the exemption issue one way or the other. See id. at 25-26 (White, J., concurring).


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