Amicus Curiae Brief — Obergefell v. Hodges

Nos. 14-556, 14-562, 14-571 and 14-574

IN THE

Supreme Court of the Gnited States

JAMES OBERGEFELL, ET AL., Petitioners,

Yv.

RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF

HEALTH, ET AL., Respondents.

VALERIA TANCO, ET AL., Petitioners,

v.

BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL..,

Respondents.

APRIL DEBOER, ET AL., Petitioners,

Vv.

RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.,

Respondents.

GREGORY BOURKE, ET AL., Petitioners,

Vv.

STEVE BESHEAR, GOVERNOR OF KENTUCKY, ET AL..,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF DOUGLAS LAYCOCK, THOMAS C. BERG, DAVID

BLANKENHORN, MARIE A. FAILINGER, AND EDWARD

MCGLYNN GAFFNEY, AS AMICI CURIAE IN SUPPORT OF

PETITIONERS

Thomas C. Berg Douglas Laycock

Univ. of St. Thomas School Counsel of Record

of Law Univ. of Virginia Law School

MSL 400, 1000 LaSalle Ave. 580 Massie Road

Minneapolis, MN 55403 Charlottesville, VA 22903

651-962-4918 434-243-8546

tcberg@stthomas.edu dlaycock@virginia.edu

QUESTION PRESENTED

This brief addresses the question whether

protection of religious liberty is a reason to prohibit

same-sex marriage, or whether instead, the Court can

fully protect both marriage equality and religious

liberty.

TABLE OF CONTENTS

EEE eon Se ne iv

TTT AEST ATEN ET 1

CET l

I catia iia laura ciaea iain eat iliaenatl 6

I. This Court Should Recognize a Right to

I I ranean tir enttiecnnininabninanaibied 6

A. The Right to Marry Is Fundamental, and

the Grounds Asserted in These Cases Are

Insufficient to Justify Denial of That Right. ...6

B. Legitimate Concerns for Religious Liberty

Are Not a Reason to Deny Same-Sex

Couples the Right to Marry............................ 11

C. The Proper Response to the Conflict

Between Gay Rights and Religious Liberty

Is to Protect the Liberty of Both Sides. ......... 12

II. When the Court Invalidates Laws Prohibiting

Same-Sex Civil Marriage, It Must Take

Responsibility for the Resulting Religious

I i nncenicnnsncciasindiimmeiiiindiabubiiaedibnpieeneanne 16

A. Judicial Protection of the Right to Same-

Sex Marriage Often Displaces Legislative

Protection of Religious Liberty with Respect

I -scincesritinstiosictiiiieiiiieiaeaciiaibainiiinnaaaiciaiaie 16

B. Marriage is Both a Legal and a Religious

Relationship, and Religious Organizations

C. Legal Recognition of Same-Sex Marriage

Will Give Rise to Many Religious-

FS TELE TEPC a vee 24

Ill. Doctrinal Tools Are Available to Protect

Religious Liberty with Respect to Marriage. ..... 30

A. Religious Organizations Have the Right

to Make Internal Decisions That Affect

Their Faith and Mission...........................-....- 30

B. Religious Organizations Have the Right to

Take “External” Actions, Subject to the

Compelling Interest Test, If a Religiously

Burdensome Law Has Secular Exceptions. ...32

C. Religious Liberty Is Also Protected by State

Constitutions and by State and Federal

D. In an Appropriate Future Case, the Court

Should Reconsider Free-Exercise Exemp-

tions from Generally Applicable Laws........... 35

ee ae a TOT TE EE 37

Appendix: Identifying the Individual Amici .......... A-1

ill

TABLE OF AUTHORITIES

Cases

Alicea-Hernandez v. Catholic Bishop,

320 F.3d 698 (7th Cir. 2003)................................ 31

Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) ........ 11

Bob Jones University v. United States,

8 ES ee 27

Bowen v. Roy, 476 U.S. 693 (1986) ....................-.-0.-. 12

Boy Scouts of America v. Wyman,

335 F.3d 80 (2d Cir. 2003) ................0.02......ceecc0ee. 27

Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751 (2014) .......ccccccccecesceseescececeeeees 16, 36

Catholic Charities v. City of Portland,

304 F. Supp. 2d 77 (D. Me. 2004) ........................ 25

Church of the Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993)........ 4, 33, 35

City of Boerne v. Flores, 521 U.S. 507 (1997) ........... 35

Conlon v. InterVarsity Christian Fellowship/

USA, 2015 WL 468170 (6th Cir. Feb. 5, 2015) ...31

EEOC v. Catholic University,

Fe Fk 0 31

Elane Photography, LLC v. Willock,

Se Oe ee els SIE cccccccsnescecccscccecsnncsscsecoeness 28

Employment Division v. Smith,

es I ic sininncinentiicnmemainmminas 4, 15, 32-37

Evans v. City of Berkeley,

eee 27

iv

Fraternal Order of Police v. City of Newark,

170 F.3d 359 (Se Cir. 1908) ...........cccccccccscccccccccces 33

Garden State Equality v. Dow,

82 A.3d 336 (N.J. Super. Ct. 2013)...................... 18

Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418 (2006).......................0... 36

Goodridge v. Department of Public Health,

798 N.E.2d 941 (Mass. 2003)......................... 21, 23

Griego v. Oliver, 316 P.3d 865 (N.M. 2013).............. 23

Griswold v. Connecticut, 381 U.S. 479 (1965)............ 6

Holt v. Hobbs, 135 S. Ct 853 (2015).................00.0..... 36

Hosanna-Tabor Evangelical Lutheran

Church and School v. EEOC,

Lk EE nee 4, 30, 36-37

Kitchen v. Herbert,

755 F.3d 1193 (10th Cir. 2014)...........0.0.000.... 11, 23

Levin v. Yeshiva University,

754 N.E.2d 1099 (N.Y. 2001) ..........................0000- 25

Locke v. Davey, 540 U.S. 712 (2004)...........0..000000000.. 36

Loving v. Virginia, 388 U.S. 1 (1967) ......................... 6

Lyng v. Northwest Indian Cemetery Protective

Association, 485 U.S. 439 (1988) ...........0.0000000000.. 12

Marriage Cases, In re,

183 P.3d 3B4 (Cal. BOO) ......0.0.0ccccsccccc0000.0000-. 14, 23

Meyer v. Nebraska, 262 U.S. 390 (1923)............0000..... 6

Natal v. Christian and Missionary Alliance,

878 F.2d 1575 (let Cir. 1988) .............cccccscccccsccees 31

Petruska v. Gannon University,

Re ee Ie Ie Gy CE dececccecsececcctccscdeccsscesces 31

Scharon v. St. Luke’s Episcopal Presbyterian

Hospitals, 929 F.2d 360 (8th Cir. 1991).......... a

Shaliehsabou v. Hebrew Home,

363 F.3d 299 (4th Cir. 2004).......................00scee00- 31

Sherbert v. Verner, 374 U.S. 398 (1963) ................... 32

Skinner v. Oklahoma, 316 U.S. 535 (1942)................ 6

State v. Arlene’s Flowers, Inc., No. 13-2-00871-5

http://www.adfmedia.org/files/ArlenesF lowers

SJruling.pdf (Wash. Super. Ct. Feb. 18, 2015) ...28

Turner v. Safley, 482 U.S. 78 (1987).................c.00c000e 7

United States v. Windsor,

Rs SEE e nemo 8, 10

Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) ....... 14

Ward v. Polite, 667 F.3d 727 (6th Cir. 2012)............ 25

Zablocki v. Redhail, 434 U.S. 374 (1978) ................ 6-7

Constitutiona] Provisions

State constitutions collectively,

religious liberty provisions ........................ 5, 18, 34

U.S. Const., amend. I, Free Exercise Clause ..... 12, 32

U.S. Const., amend. XIV

SLSR EE NO SENS 6

ee Cre GEIS... 0 cdeidnesanndsemesmsennneaianl 6

Statutes

Cal. Fam. Code § 400(a) (Deering Supp. 2014)........ 17

vi

Conn. Gen. Stat. §§ 46b-22b, 46b-35a,

ETE et ear oO O ee Reena TEN TCE 17

Conn. Pub. Act 09-13 (2009) ......................cccccccccescecs 17

Defense of Marriage Act, 1 U.S.C. § 7 .....0.0.0......0000002. 8

Mississippi Religious Freedom Restoration Act,

Miss. Code Ann. § 11-61-1 (LexisNexis

I eh 19

Religious Freedom Restoration Act,

42 U.S.C. § 2000bb—2000bb-4........0........ 18, 34, 37

State Religious Freedom Restoration Acts,

RES TREES Ree se NE DIO CEU AED 5, 18, 34

Executive Orders

Executive Order No. 13279, 67 Fed. Reg. 77141

I ee 26

Executive Order No. 13672, 79 Fed. Reg. 42791

ES Ee eS aa a ee 26

Secondary Authorities

Berg, Thomas C., What Same-Sex-Marriage

and Religious-Liberty Claims Have in

Common, 5 Nw. J.L. & Soc. Pol’y 206 (2010)...... 13

Carpenter, Dale, Windsor Products: Equal Protec-

tion from Animus, 2013 Sup. Ct. Rev. 183......... 8-9

Catechism of the Catholic Church (2d ed. 1997)...... 21

Dane, Perry, A Holy Secular Institution,

SD I Bl. ER Ce icc cnenesctccecsescccccececesdseccs 20

Eskridge, William N., Jr., A Jurisprudence of

“Coming Out”: Religion, Homosexuality,

and Collisions of Liberty and Equality in

American Public Law,

106 Yale L.J. 2411 (1997) 0.0.0.0... ceccceeecceeeceeeeeeecees 13

Evangelicals and Catholics Together, The Two

Shall Become One Flesh: Reclaiming Marriage,

First Things, Mar. 2016, at 23 ...............cccccccecesee 23

Friedman, Matt, N.J. Senate Pulls Gay-

Marriage Bill, NJ.com, Dec. 16, 2013,

http://www.nj.com/politics/index.ssf/2013/12/

nj_senate_pulls_gay_marriage_bill.html............ 19

ELS ETN aig RAE 2d eee RO EO Oe aE OT 21

Goodstein, Laurie, Illinois Bishops Drop Program

over Bias Rule, N.Y. Times, Dec. 29, 2011,

SEES SE PARE EPMA RSE AS ied s Ae SCE SOT aD OS ee Oe 26

Kmiec, Douglas W., Same-Sex Marriage and the

Coming Antidiscrimination Campaigns Against

Religion, in Same-Sex Marriage and Religious

Liberty 103 (Douglas Laycock, Anthony R.

Picarello, Jr., & Robin Fretwell Wilson, eds.,

Lattin, Don, Charities Balk at Domestic Partner,

Open Meeting Laws, San Francisco Chronicle,

ee, SE ET EID consdedocstitinshinnnteininenidiiininiiiaamninibenss 25

Laycock, Douglas, Afterword, in Same-Sex

Marriage and Religious Liberty 189 (Douglas

Laycock, Anthony R. Picarello, Jr., & Robin

Fretwell Wilson, eds., 2008) ......................020e.e00es 22

Laycock, Douglas, Religious Liberty and the

Culture Wars, 2014 U. Ill. L. Rev. 839................ 34

Laycock, Douglas, Picarello, Anthony R., Jr.,

& Wilson, Robin Fretwell, eds., Same-Sex

Marriage & Religious Liberty (2008)....... 22, 24, 27

National Conference of State Legislatures,

Same-Sex Marriage Laws, http://www.ncsl.

org/research/human-services/same-sex-

IE a i nincininncninndantiicinenienintanenmmtennses 17

Rauch, Jonathan, Gay Marriage: Why It is Good

for Gays, Good for Straights, and Good

|) TET A ee 7

Smith, D., Accreditation Committee Decides to

Keep Religious Exemption, 33 Monitor on

Psychology No. 1, Jan. 2002, at 16...................... 26

Stern, Marc D., Same-Sex Marriage and the

Churches, in Same-Sex Marriage and Relig-

ious Liberty 1 (Douglas Laycock, Anthony R.

Picarello, Jr., & Robin Fretwell Wilson, eds.,

Turley, Jonathan, An Unholy Union: Same-Sex

Marriage and the Use of Governmental Programs

to Penalize Religious Groups with Unpopular

Practices, in Same-Sex Marriage and Religious

Liberty 59 (Douglas Laycock, Anthony R.

Picarello, Jr., & Robin Fretwell Wilson, eds.,

Wilson, Robin Fretwell, Marriage of Necessity:

Same-Sex Marriage and Religious Liberty

Protections, 64 Case W. Res. L. Rev. 1161

I ahd eit abde inate eatiaalaaanashciinltieiaisiinis 17

INTEREST OF AMICI

Amici are four legal scholars and a policy analyst

who have studied religious lberty, same-sex civil

marriage, and the relationship between the two.

These amici believe that this Court can, and should,

protect both the right to same-sex civil marriage and

the right to religious liberty. Individual amici are

described in the Appendix.!

SUMMARY OF ARGUMENT

I. A. The Court must protect the right of same-sex

couples to marry, and it must protect the right of

churches, synagogues, and other religious organiza-

tions not to recognize those marriages. This brief is an

appeal to protect the liberty of both sides in the

dispute over same-sex marriage.

The choice of whom to marry is one of the most

intimate and personal decisions that any human

being can make. The right to marry has long been

recognized as fundamental. Heightened scrutiny is

therefore appropriate.

The reasons proffered for refusing civil marriage to

same-sex couples do not come close to justifying denial

of a fundamental right. Marriage is about far more

than children. But even if children were the only

purpose of marriage, it would not matter, because

1 This brief was prepared entirely by amici and their counsel.

No other person made any financial contribution to the

preparation or submission of this brief. The consents of

respondents are on file with the Clerk; the consent of petitioners

is submitted with the brief. All cited websites were last visited

March 5, 2015.

same-sex couples raise many children. Concern for

children cannot explain either civil marriage or the

exclusion of same-sex couples.

B. Serious issues of religious liberty will arise in

the wake of same-sex marriage. But it is not

appropriate to prohibit same-sex civil marriage to

avoid having to address those issues. No one can have

a right to deprive others of their important liberty as

a prophylactic means of protecting his own. And there

is no burden on religious exercise when the state

recognizes someone else’s civil marriage. Burdens on

religious exercise arise only when the state demands

that religious organizations or believers recognize or

facilitate a marriage in ways that violate their

religious commitments.

C. The proper response to the mostly avoidable

conflict between gay rights and religious liberty is to

protect the liberty of both sides. Both sexual

minorities and religious minorities make essentially

parallel claims on the larger society. Both sexual

orientation and religious faith, and the conduct that

follows from each, are fundamental to human

identity. Both same-sex couples, and _ religious

organizations and believers committed to traditional

understandings of marriage, face hostile regulation

that condemns their most cherished commitments as

evil.

The American solution to this conflict is to protect

the liberty of both sides. Same-sex couples must be

permitted to marry, and religious dissenters must be

permitted to refuse to recognize those marriages.

Il. A. If this Court holds that same-sex marriage is

constitutionally required, it must take responsibility

2

for the resulting issues of religious liberty, because a

constitutional decision will largely displace legislative

efforts to address the issue. States that have enacted

same-sex civil marriage by legislation have generally

included provisions to protect religious liberty. But

where marriage equality has arrived by judicial

decision, religious liberty has not been protected.

When courts find a constitutional right to same-sex

civil marriage, those who would add religious liberty

provisions to a marriage bill are deprived of a

legislative vehicle and deprived of bargaining

leverage. Legislative bargaining is critical to

protecting religious liberty in the growing number of

states where religious objections to same-sex

marriage have become unpopular. A constitutional

decision by this Court will end legislative efforts to

protect religious liberty as part of legislation enacting

marriage equality. If the Court protects same-sex

marriage, it must also protect religious liberty with

respect to marriage.

B. Marriage is both a legal relationship and a

religious relationship. The two relationships can be

distinguished in principle, although they are

intertwined in law and especially in the culture. A

state, or this Court, can change the definition of civil

marriage. But neither can change the definition of

religious marriage.

C. Many religious organizations and believers view

marriage as an inherently religious institution, with

civil marriage resting on a foundation of religious

marriage. They therefore refuse to recognize same-sex

civil marriages as marriages. These religious refusals

give rise to numerous religious-liberty issues, from

clergy’s performance of weddings or provision of

3

marriage counseling, to employment and spousal

fringe benefits, to married student housing at

religious colleges, to placement of children for

adoption at religious social-service agencies. Religious

organizations are facing lawsuits, civil penalties, and

loss of government benefits.

III. Doctrinal tools are available to protect

religious liberty with respect to marriage.

A. Government may not interfere “with an internal

church decision that affects the faith and mission of

the church itself.” Hosanna-Tabor Evangelical

Lutheran Church and School v. EEOC, 132 S. Ct. 694,

707 (2012). Whether to recognize a marriage, for

purposes internal to the religious organization, is such

a protected decision.

B. Some religious refusals to recognize same-sex

civil marriages will likely be characterized as external

rather than internal, as in the case of placing children

for adoption. In those cases, religious liberty is still

protected, subject to the compelling interest test, from

laws that are not neutral, or not generally applicable.

A law is not generally applicable if it has “at least

some” secular exceptions. Employment Division v.

Smith, 494 U.S. 872, 884 (1990). Regulating religious

conduct but not secular conduct that causes the same

or similar alleged harms necessarily implies that the

government “devalues religious reasons for [the

regulated conduct] by judging them to be of lesser

import than nonreligious reasons.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 537-38 (1993).

Many laws are not generally applicable under this

standard, and there will often be no compelling

4

interest in requiring religious organizations to

recognize a same-sex marriage. even when the context

can be characterized as external. In applying the

compelling interest test, a court might consider, for

example, whether a same-sex couple seeking goods or

services from a religious organization can readily

obtain comparable goods or services from other

providers. If so, there might be no compelling interest

in forcing the religious organization to violate its faith

commitments.

C. Religious liberty is also protected by state

constitutions and state Religious Freedom Restor-

ation Acts. This Court should make clear that it is

requiring only that governments recognize same-sex

civil marriage, and that it is not suggesting any

constitutional obstacle to state protection of religious

liberty with respect to marriage.

D. In an appropriate future case, involving a law

that is truly generally applicable, the Court should

reconsider the rule that neutral and generally applic-

able laws may be applied in ways that burden or

suppress the exercise of religion. That rule was never

briefed or argued, and it has not been further

developed in subsequent free exercise decisions, all of

which were decided on other grounds.

ARGUMENT

I. This Court Should Recognize a Right to

Same-Sex Marriage.

A. The Right to Marry Is Fundamental, and

the Grounds Asserted in These Cases Are

Insufficient to Justify Denial of That

Right.

1. The choice of whom to marry is one of the most

intimate and personal decisions that any human

being can make. Government should not interfere

with that choice without a very important reason. Nor

should government leave a substantial class of people

with no one, on any realistic view of the matter, whom

they can legally marry. A state’s refusal to permit

same-sex civil marriages prima facie violates both the

Due Process Clause and the Equal Protection Clause.

At the very least, some form of heightened scrutiny is

required.

This Court has long recognized “the right to

marry’ as a right “of fundamental importance.”

Zablocki v. Redhail, 434 U.S. 374, 383 (1978). It is a

“fundamental freedom” and “one of the ‘basic civil

rights of man.” Loving v. Virginia, 388 U.S. 1, 12

(1967) (quoting Skinner v. Oklahoma, 316 U.S. 535,

541 (1942)). It is protected from discrimination, as in

Loving, and it has long been understood to be part of

the liberty protected by the Due Process Clause.

Meyer v. Nebraska, 262 U.S. 390, 399 (1923). It is a

relationship that is “intimate to the degree of being

sacred.” Griswold v. Connecticut, 381 U.S. 479, 486

(1965).

The Court has unanimously protected the right to

marry even for prisoners. Turner v. Safley, 482 U.S.

78, 94-100 (1987). The laws at issue in these cases

deprive law-abiding gays and lesbians of a right so

fundamental that it is protected even for incarcerated

felons.

2. The court of appeals applied rational-basis

review. In part it reasoned that petitioners seek not to

correct “an unconstitutional eligibility requirement

for marriage,” but to “create a new definition of

marriage.” Pet. App. 49a. The definition of marriage

as inherently male-female is central to many religious

understandings of marriage. But calling the issue

“definitional” does not justify laws that effectively

exclude gays and lesbians altogether from civil

marriage. “{[T]he right to marry is of fundamental

importance for all individuals,” Zablocki, 434 U.S. at

384 (emphasis added), not just for some. And unlike

other limitations on civil marriage, the exclusion of

same-sex couples precludes gays and lesbians from

marrying anyone with whom they can form the bond

of physical and emotional intimacy that characterizes

marriage. See Jonathan Rauch, Gay Marriage: Why It

is Good for Gays, Good for Straights, and Good for

America 125-27 (2004).

The court of appeals thus erred in warning that

adopting heightened scrutiny would “subject[t] all

state eligibility rules for marriage to rigorous, usually

unforgiving, review.” Pet. App. 50a. The Court in

Zablocki did not “suggest that every state regulation

which relates in any way to the incidents of or

prerequisites for marriage must be subjected to

rigorous scrutiny.” 434 U.S. at 386. The rules at issue

in Zablocki prevented the respondents there from

7

marrying anybody, just as the ban on same-sex

marriage effectively leaves gays and lesbians with no

eligible partners.

3. It is better to invalidate these laws under

heightened scrutiny than under _ rational-basis

scrutiny. Heightened scrutiny would avoid declaring

that the longstanding, widely held view of marriage

as inherently a male-female relationship is utterly

irrational or an expression of “animus” or malice

towards gays and lesbians. Holding that the disparate

burden imposed on same-sex families fails heightened

scrutiny will vindicate their rights while avoiding

unnecessary denigration of conflicting views.

But if the Court chooses to hold that traditional-

marriage laws lack a rational basis, it should make

clear that it is not thereby finding that the laws rest

on animus in the sense of hatred or malice. The point,

rather, is the lack of plausible secular reasons for the

harm inflicted on same-sex couples and their children.

The Court referred to “animus” against gays and

lesbians in United States v. Windsor, 133 S. Ct. 2675,

2693 (2013). But as one leading defender of Windsor

and of same-sex marriage has emphasized:

To say that DOMA reflected animus is ... not to

say that those who hew closely to the

traditional religious understanding of marriage

in their own lives and within their own faith

traditions are themselves hateful. ... The focus

is on the inadmissibility of the reasons offered

for supporting the legislation in a republic

committed to the concept of equal protection for

every citizen.

Dale Carpenter, Windsor Products: Equal Protection

8

from Animus, 2013 Sup. Ct. Rev. 183, 241.

In particular, the permissible reasons the state

may give for restricting marriage in civil law are more

limited than the reasons religious organizations and

individuals may give for defining marriage in their

own traditions. Those religious reasons are not

irrational or malicious, but they are not a sufficient

basis for government action that burdens the rights of

others. And when those religious reasons are elimi-

nated from consideration, no remotely sufficient

reasons remain.

4. The secular interests offered for the exclusion of

same-sex marriage do not justify the profound

intrusion into the right to marry. They do not come

close. The court of appeals found a rational basis in

the assertion that marriage regulates the “unique

procreative possibilities” of male-female couples. Pet.

App. 34a (people “may well need the government's

encouragement to create and maintain stable

relationships within which children may flourish.”).

This argument fails for several reasons. First,

marriage is about much more than procreation. Few

if any married couples experience their marriage as

exclusively, or even predominantly, about procrea-

tion. Children are one important part of most

marriages, and no part at all of many others. The

government's interest in protecting children is

undoubtedly important. But the claim that this

interest is the reason for opposite-sex-only marriage

does not fit the existing marriage laws, or the social

understanding of marriage, or the lived experience of

millions of married couples, all of which treat

marriage as first and foremost a relationship between

two adult spouses.

9

Second, the attempt to justify the prohibition on

same-sex marriage as a means of protecting children

fails on its own terms. If the only or principal purpose

of state recognition of marriage were to enable

children to live with two biological parents, then that

policy has manifestly failed. A theoretical government

interest, not remotely implemented in practice,

cannot be a basis for denying the fundamental right

to marry.

Third, banning same-sex marriage directly

undermines the asserted government interest,

because it harms the children of same-sex couples.

Same-sex couples raise children resulting from

assisted reproduction and from failed attempts at

opposite-sex marriage — attempts often induced by

societal pressure and discrimination. They raise

children from adoption, and they raise children as

foster parents. Denying these couples the stability,

commitment, and financial benefits of legally

recognized civil marriage does nothing to protect any

of these children.

In Windsor, this Court emphasized that the federal

government’s refusal to recognize same-sex marriages

caused “financial harm to children of same-sex

couples,” “humiliate[d]” those children, and made it

“more difficult for the children to understand the

integrity and closeness of their own family and its

concord with other families in their community and in

their daily lives.” 133 S. Ct. at 2695, 2694. State

denials of marriage inflict similar harms.

Fourth, prohibiting same-sex marriage under-

mines the states’ alleged concern for the unintended

children of opposite-sex couples, because it discour-

ages adoption. Same-sex couples are more likely than

10

opposite-sex couples to adopt children, and “same-sex

marriage improves the prospects of unintended

children by increasing the number and resources of

prospective adopters.” Baskin v. Bogan, 766 F.3d 648,

663 (7th Cir.), cert. denied, 135 S. Ct. 316 (2014)

(Posner, J.). Prohibiting same-sex marriage to protect

children is counterproductive.

B. Legitimate Concerns for Religious Lib-

erty Are Not a Reason to Deny Same-Sex

Couples the Right to Marry.

Bans on same-sex civil marriage have also been

defended on the ground that they protect the religious

liberty of those who conscientiously object to same-sex

marriage. See, e.g., Kitchen v. Herbert, 755 F.3d 1193,

1227-28 (10th Cir.), cert. denied, 135 S. Ct. 265 (2014)

(rejecting the argument).

1. Significant religious liberty issues will indeed

follow in the wake of same-sex civil marriage. But it

is not an appropriate response to prohibit sarhe-sex

civil marriage in order to eliminate every risk of

possible impositions on religious liberty. No one can

have a right to deprive others of their important

liberty as a prophylactic means of protecting his own.

Just as one’s right to extend an arm ends where

another’s nose begins, so each claim to liberty in our

system must be defined in a way that is consistent

with the equal] and sometimes conflicting liberty of

others. Religious liberty, properly interpreted and

enforced, can protect the right of religious organi-

zations and religious believers to live their own lives

in accordance with their faith. But it cannot give them

any right or power to deprive others of the corre-

sponding right to live the most intimate portions of

their lives according to their own deepest values.

11

2. The mere recognition of same-sex civil marriage

by the state presents no issue of religious liberty. “For

the Free Exercise Clause is written in terms of what

the government cannot do to the individual, not in

terms of what the individual can exact from the

government.” Lyng v. Northwest Indian Cemetery

Protective Association, 485 U.S. 439, 451 (1988)

(internal quotation omitted). A conscientious objector

can raise a free-exercise claim only when the

government has restricted or penalized the objector’s

own religiously motivated behavior. See id. at 450-52;

Bowen v. Roy, 476 U.S. 693, 699-701 (1986).

Religious-liberty issues begin not when a same-sex

couple marries, but when the state pressures religious

organizations or believers to recognize or facilitate

that marriage in ways that would require them to

violate their religious commitments. For reasons we

detail below, the Court should acknowledge these

issues and commit itself to addressing them. But their

existence cannot justify denying millions of other

Americans the fundamental right to marry.

We teach our children that America is committed

to “liberty and justice for all.” We must protect

religious liberty and the right to marry.

C. The Proper Response to the Conflict

Between Gay Rights and _ Religious

Liberty Is to Protect the Liberty of Both

Sides.

1. Same-sex civil marriage is a great advance for

human liberty. But failure to attend to the religious-

liberty implications will create a whole new set of

problems for the liberties of those religious organi-

zations and believers who cannot conscientiously

12

recognize or facilitate such marriages. The gain for

human liberty will be greatly undermined if same-sex

couples now force religious dissenters to violate

conscience in the same way that those dissenters,

when they had the power to do so, forced same-sex

couples to hide in the closet. And that is what will

happen, unless this Court clearly directs the lower

courts to protect religious liberty as well as same-sex

civil marriage.

There is a sad irony to the bitter conflict between

supporters of same-sex civil marriage and religious

organizations and believers committed to the view

that marriage is inherently male-female. Sexual

minorities and religious minorities make essentially

parallel claims on the larger society, and the strongest

features of the case for same-sex civil marriage make

an equally strong case for protecting the religious

liberty of dissenters. These parallels have been

elaborated by scholars who work principally on

religious liberty? and by scholars who work

principally on sexual orientation.®

2. Both same-sex couples and committed religious

behevers argue that some aspects of human identity

are so fundamental that they should be left to each

individual, free of all nonessential regulation, even

when manifested in conduct. For religious believers,

the conduct at issue is to live and act consistently with

2 See Thomas C. Berg, What Same-Sex-Marriage and

Religious-Liberty Claims Have in Common, 5 Nw. J.L. & Soc.

Pol’y 206, 212-26 (2010).

3 See William N. Eskridge, Jr., A Jurisprudence of “Coming

Out”: Religion, Homosexuality, and Collisions of Liberty and

Equality in American Public Law, 106 Yale L.J. 2411, 2416-30

(1997).

13

the demands of the Being that they believe made us

all and holds the whole world together. For same-sex

couples, the conduct at issue is to join personal

commitment and sexual expression in a multi-faceted

intimate relationship with the person they love. And

often, they are following their own religious values in

making the commitment to marry.

No religious believer can change his understan-

ding of divine command by any act of will, and no

person who wants to enter a same-sex marriage can

change his sexual orientation by any act of will.

Religious beliefs can change over time; far less

commonly, sexual orientation can change over time.

But these things do not change because government

says they must, or because the individual decides they

should; for most people, one’s sexual orientation and

one’s understanding of what God commands are

experienced as involuntary, beyond individual

control. The same-sex partners cannot change their

sexual orientation, and the religious believer cannot

change God’s mind as his religious tradition under-

stands it.

3. In finding rights to same-sex civil marriage,

courts have rejected the argument that marriage is

merely conduct, distinguishable from sexual orien-

tation and presumptively subject to state regulation.

They have rejected a distinction between sexual

orientation and sexual conduct because, they have

correctly found, both the orientation and the conduct

that follows from that orientation are central to a

person’s identity. See, e.g., In re Marriage Cases, 183

P.3d 384, 442-43 (Cal. 2008); Varnum v. Brien, 763

N.W.2d 862, 885, 893 (lowa 2009).

Religious believers face similar attempts to

14

dismiss their claims as involving mere conduct,

distinguishable from religious faith and subject to any

and all state regulation. This is the premise of

refusing judicial review to religiously burdensome

laws that are truly generally applicable. Employment

Division v. Smith, 494 U.S. 872 (1990). But believers

cannot fail to act on God’s will, and it is no more

reasonable for the state to demand that they do so

than for the state to demand celibacy of all gays and

lesbians. Both religious believers and same-sex

couples feel compelled to act on those things constit-

utive of their identity, and they face parallel legal

objections to their actions.

4. Both same-sex couples and religious dissenters

also seek to live out their identities in ways that are

public in the sense of being socially apparent and

socially acknowledged. Same-sex couples claim a right

beyond private behavior in the bedroom: they claim

the right to participate in the social institution of civil

marriage. Religious believers likewise claim a right to

follow their faith not just in worship services, but in

the charitable activities of their religious organi-

zations and in their daily lives.

5. Finally, both same-sex couples and religious

dissenters face the problem that what they experience

as among the highest virtues is condemned by others

as a grave evil. Where same-sex couples see loving

commitments of mutual care and support, many

religious believers see disordered conduct that

violates natural law and scriptural command. And

where those religious believers see obedience to a

loving God who undoubtedly knows best when he lays

down rules for human conduct, many supporters of

gay rights see intolerance, bigotry, and hate. Because

15

gavs and lesbians and religious conservatives are each

viewed as evil by a substantial portion of the popula-

tion, each is subject to substantial risks of intolerant

and unjustifiably burdensome regulation.

6. The classically American solution to this

problem is to protect the liberty of both sides. There is

no reason to let either side oppress the other. As

Justice Kennedy recently wrote, “no person may be

restricted or demeaned by government in exercising

his or her religion. Yet neither may that same exercise

unduly restrict other persons ... in protecting their

own interests.” Burwell v. Hobby Lobby Stores, Inc.,

134 S. Ct. 2751, 2786-87 (2014) (Kennedy, J.,

concurring). Here as elsewhere, “the means to

reconcile those two priorities are at hand” through

religious liberty protections. Jd. at 2787. Same-sex

couples should not be denied the right to civil

marriage; that is the immediate issue in this case.

And when that right is secured, dissenting religious

organizations should not be forced to recognize or

facilitate those marriages.

Il. When the Court Invalidates Laws Prohibit-

ing Same-Sex Civil Marriage, It Must Take

Responsibility for the Resulting Religious

Liberty Issues.

A. Judicial Protection of the Right to Same-

Sex Marriage Often Displaces Legislative

Protection of Religious Liberty with

Respect to Marriage.

1. All the jurisdictions that enacted same-sex civil

marriage by popular decision (legislation, initiative,

or referendum) also’ enacted _religious-liberty

protections for religious organizations that do not

16

recognize same-sex marriages. Often these religious-

liberty protections were essential to passage of

marriage equality; protecting religious liberty

brought needed swing votes to support the bill.4

Almost none of the states where same-sex civil

marriage has been recognized judicially, by interp-

retation of the state or federal constitution, have

enacted religious liberty protections.5 California

enacted an extremely narrow statutory provision that

protects only the right of clergy to not officiate at the

wedding.® Among the judicial-recognition states, only

Connecticut gives robust protection similar to that

enacted in most of the legislative-recognition states,’

and this was possible only because Connecticut

enacted legislation codifying the judicial decision.®

2. The reason for this divergence is clear. When a

legislature considers same-sex civil marriage, there

are supporters and opponents and _ undecided

legislators. There may be undecideds or even

opponents who will become supporters if adequate

provision is made for religious liberty. In the

4 See Robin Fretwell Wilson, Marriage of Necessity: Same-Sex

Marriage and Religious Liberty Protections, 64 Case W. Res. L.

Rev. 1161, 1176-94 (2014).

5 See id. at 1254-57 (collecting religious-liberty provisions

from legislative and judicial states); National Conference of State

Legislatures, Same-Sex Marriage Laws, http://www.ncsl.org/

research/human-services/same-sex-marriage-laws.aspx (updat-

ing list of legislative and judicial states).

6 Cal. Fam. Code § 400(a) (Deering Supp. 2014).

7 Conn. Gen. Stat. §§ 46b-22b, 46b-35a, 46b-35b (2013).

8 Conn. Pub. Act 09-13 (2009). Wilson, supra note 4, treats

Connecticut as a legislative state, because this codification

required the normal] legislative process.

17

democratic bargaining of the legislative process, bills

emerge that protect same-sex civil marriage and

religious liberty.

The religious-liberty provisions are sometimes

inserted at the last minute. They are often incomplete

and ambiguous. But they provide meaningful

protection for the liberty of religious organizations.

This bargaining process can break down when

there is lopsided support for same-sex civil marriage.

And it entirely breaks down when same-sex civil

marriage becomes the law through a judicial decision

on constitutional grounds. Those who would add

religious-liberty protections to a civil-marriage bill are

deprived of a vehicle and deprived of bargaining

power. As a result, the legislature seldom attends to

the specific issues of religious liberty raised by same-

sex civil marriage. Those issues are left to litigation

under the general religious-liberty provisions of state

and federal constitutions and Religious Freedom

Restoration Acts.

New Jersey clearly illustrated this dynamic. After

a state court ordered recognition of same-sex

marriage? and the state abandoned its appeal,

supporters of civil marriage equality introduced

legislation to codify the decision. But the bill was

withdrawn after gay-rights organizations objected to

the bill's (extremely narrow) _religious-liberty

protections. They said the bill would add “religious

restrictions that are not addressed by the court

decision, originally concessions made to win votes for

® Garden State Equality v. Dow, 82 A.3d 336 (N.J. Super. Ct.

2013).

18

an earlier version of the legislation.”'° Having secured

marriage rights judicially, proponents were unwilling

to accept any protection for religious liberty, however

slight.

3. As court decisions ordering marriage equality

have begun to cover much of the nation, socially

conservative states have considered enacting legis-

lative exemptions for religious dissenters. Some of

these proposals badly overreached; others were quite

sensible. But with only one arguable exception,'! none

of these bills has yet passed. And in any event,

protection for religious liberty should not turn on the

popularity in each state of the religious practice in

need of protection.

The religious-liberty issue is most acutely posed in

states where the traditional view of marriage has

become substantially unpopular. At least in those

states, a marriage-equality decision from this Court

will withdraw from religious dissenters any bargain-

ing leverage they could use to protect religious liberty.

The lesson is clear. If this Court finds a

constitutional right to same-sex civil marriage, it

must attend to the resulting issues of religious liberty.

The Court’s decision will have made it far less likely

that legislatures will do so, especially in states where

there is limited sympathy for the religious objectors.

1© Matt Friedman, N.-/. Senate Pulls Gay-Marriage Bill,

NJ.com, Dec. 16, 2013, http://www.nj.com/politics/index.ssf/

2013/12/nj_senate_pulls_gay_marriage_bill.htm.

1. Mississippi Religious Freedom Restoration Act, Miss. Code

Ann. § 11-61-1 (LexisNexis Supp. 2014). This law is a genera!

religious-liberty provision and does not directly address same-

sex marriage.

19

Of course the Court cannot render advisory

opinions on specific cases, but it should indicate that

it understands the range of religious-liberty implica-

tions that will have to be addressed. The issues are

judicially manageable, but this Court must acknowl-

edge their existence, so that lower courts and

legislatures will take them seriously when they arise

in the wake of this Court’s decision.

B. Marriage Is Both a Legal and a Religious

Relationship, and Religious Organiza-

tions Must Remain Free to Define Relig-

ious Marriage.

Judges focused on discriminatory definitions of

civil marriage have often failed to appreciate the

range of religious-liberty issues raised by same-sex

marriage. The question is not simply whether clergy

must perform same-sex wedding ceremonies,

although that is certainly important.

1. The religious disagreement over marriage

equality begins with a disagreement over the nature

of marriage. Marriage is a both a legal relationship

and a religious relationship. Advocates of marriage

equality tend to see the legal relationship as primary,

but most religious organizations and many religious

believers see the religious relationship as primary. It

is possible to distinguish the two relationships, but in

our law and especially in our culture, they are deeply

“intertwin[ed].”. Perry Dane, A Holy Secular

Institution, 58 Emory L.J. 1123, 1174 (2009) (“The

church has relied on the state to give juridical form to

marriage, but the state has relied on the religious

valence of marriage to give the institution meaning

and depth.”). If this Court invalidates discriminatory

definitions of legal marriage — civil marriage in the

20

more common usage — it must take care not to

interfere with the right of religious organizations to

define religious marriage.

Civil marriage — the legal relationship — defines

mutual duties of support, property rights, inheritance

rights, pension rights, insurance coverage, social

security benefits, tax liabilities, evidentiary

privileges, rights to sue for personal injury or file for

bankruptcy, and much more. Massachusetts told its

highest court that “hundreds of statutes” create rules

or authorize benefits on the basis of marriage.

Goodridge v. Department of Public Health, 798 N.E.2d

941, 955 (Mass. 2003). Equality with respect to these

important consequences of civil marriage — most of

them financial consequences — is of course part of the

reason that civil-marriage equality is so important.

The religious relationship is overlapping and

intertwined but very different. Marriage is a

sacrament in the Catholic faith!? and an important

religious commitment in most other faiths. Male-

female marriage is ordained in both the Jewish and

Christian scriptures. Genesis 2:22-24; Matthew 19:4-

6. Both scriptures repeatedly condemn adultery. See,

e.g., Exodus 20:14; Matthew 19:18. Christians and

Jews (and adherents of other faiths as well) disagree

about whether such passages make marriage

exclusively male-female, but many read such passages

to mean precisely that.

Sex and sexual morality are central to religious

marriage, but increasingly peripheral to legal

provisions for civil marriage. Consensual sex has been

deregulated, both in and out of marriage. Adultery

12 Catechism of the Catholic Church 400 (2d ed. 1997).

21

and fornication are no longer crimes, and alienation of

affections is no longer a tort. It is possible, and of

course extremely common, to have sex without

marriage. And it is entirely possible, although

presumably rare, to have a fully valid legal marriage

without sex. Understandings about sex in a civil

marriage are left to the married couple, and

appropriately so. There is very little about sex among

the hundreds of things defined by law as part of civil

marriage. !3

2. Those who see marriage as inherently religious

believe that the state can recognize and help

implement marriage, but that it cannot redefine

marriage. Of course the state, or this Court as a

matter of constitutional interpretation, can indeed

redefine civil marriage, which is a relationship

defined by law. But neither the state nor the Court

can change the religious definition of religious

marriage if religious authorities persist in their own

definitions. Some churches, synagogues, and other

religious organizations will refuse to recognize even

civil same-sex marriages, because for them, marriage

is a religious relationship at its foundation, and a

same-sex marriage is religiously invalid or religiously

impossible.

It is this issue of religious recognition of same-sex

civil marriages that gives rise to novel issues of

religious liberty. Conflicts have arisen, and will

continue to arise, between religious teachings and

13 These distinctions between civil and religious marriage are

further elaborated in Douglas Laycock, Afterword, in Same-Sex

Marriage and Religious Liberty 189, 202-03 (Douglas Laycock,

Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., 2008)

(hereafter Laycock, Picarello, & Wilson).

22

laws prohibiting discrimination on the basis of sexual

orientation, with or without same-sex marriage. But

the conflicts cannot be attributed solely to the

existence of antidiscrimination laws, as if the recog-

nition of same-sex marriage has no independent

effect. Marriage recognition will increase the conflicts’

frequency and religious intensity. Once same-sex

couples are civilly married, the existing discrimi-

nation laws suddenly apply to a relationship of

profound religious significance, demanding that

religious organizations and believers recognize a

relationship that they believe is both inherently

religious and religiously invalid.

3. Many of the appellate courts that have held

marriage discrimination unconstitutional have

carefully explained that they are changing only civil

marriage and not religious marriage.’ But the

explanation has done little to assuage religious

objections. In part this is because the culture often

fails to make the distinction: the historical

intertwining of religious and legal norms continues to

affect contemporary attitudes. And as we have

explained, those who oppose same-sex marriage on

religious grounds understand civil marriage to rest on

the foundation of religious marriage. On this view, a

civil marriage that departs too radically from the

foundation of religious marriage is simply not a

marriage.'5 To treat it as though it were a marriage,

14 See, e.g., Kitchen, 755 F.3d at 1227-28; In re Marriage

Cases, 183 P.3d at 407 n.11, 434; Goodridge, 798 N.E.2d at 954,

965 n.29; Griego v. Oliver, 316 P.3d 865, 871 (N.M. 2013).

15 See, e.g., Evangelicals and Catholics Together, The Two

Shall Become One Flesh: Reclaiming Marriage, First Things,

Mar. 2015, at 23, 27 (‘what is now given the name of marriage in

23

for many religious organizations and believers, is to

violate fundamental religious commitments. And

when the inevitable lawsuits come, those charging

churches and synagogues with discrimination will

also be conflating civil marriage and religious

marriage.

It is essential to distinguish the two relationships

— protecting same-sex couples’ rights to civil

marriage, but also protecting religious actors’ right to

maintain their understandings of religious marriage.

And because the two relationships have been so

intertwined, it is inadequate to simply tell the

religious organization being sued for discrimination

that it is being forced to facilitate only 2 civil act, and

not a religious one.

C. Legal Recognition of Same-Sex Marriage

Will Give Rise to Many Religious-Liberty

Issues.

1. The principal book devoted to the issue, Same-

Sex Marriage and Religious Liberty,'® collected

contributions from seven scholars — four who

supported same-sex marriage and three who did not.

All seven agreed that legalizing same-sex civil

marriage without providing robust religious exemp-

tions would create widespread legal conflicts —

conflicts that, as one contributor said, would work a

“sea change in American law” and “reverberate across

the legal and religious landscape.” !”

law is a parody of marriage”).

16 Laycock, Picarello, & Wilson, supra note 13.

17 Marc D. Stern, Same-Sex Marriage and the Churches, in

Laycock, Picarello, & Wilson, supra note 13, at 1.

24

Both as organizations and as individuals, those

committed to traditional understandings of religious

marriage may refuse to recognize, assist, or facilitate

same-sex marriages. Of course this means not

performing the wedding ceremony or hosting the

reception. But it means much more than that.

2. Must pastors, priests, and rabbis provide

religious marriage counseling to same-sex couples?'®

Must religious colleges provide married student

housing to same-sex couples?! Must churches and

synagogues employ spouses in same-sex marriages,

even though such employees would be persistently

and publicly flouting the religious teachings they

would be hired to promote? Must religious organi-

zations provide spousal fringe benefits to the same-

sex spouses of any such employees they do hire??°

Must religious social-service agencies place children

18 Cf. Ward v. Polite, 667 F.3d 727 (6th Cir. 2012) (reversing

summary judgment against religious counseling student

expelled from graduate school for refusing to counsel with

respect to problems in same-sex relationship): Stern. supra note

17, at 22-23 (describing attempt by St. Cloud State University to

require all social-work students, as condition of admission, to

affirm moral validity of same-sex relationships).

18 See Levin v. Yeshiva University, 754 N.E.2d 1099 (N.Y.

2001) (holding that lesbian couple stated a claim).

20 See Catholic Charities v. City of Portland, 304 F. Supp. 2d

77, 93-96 (D. Me. 2004) (upholding ordinance forcing religious

charity either to extend spousal benefits to registered same-sex

couples, or lose access to all city housing and community-

development funds); Don Lattin, Charities Balk at Domestic

Partner, Open Meeting Laws, San Francisco Chronicle, July 10,

1998, at Al (describing how Salvation Army lost $3.5 million in

social-service contracts with City of San Francisco because it

refused, on religious grounds, to provide benefits to same-sex

partners of its employees).

25

for adoption with same-sex couples? Already, Catholic

Charities in Illinois, Massachusetts, and the District

of Columbia has closed its adoption units because of

this issue.?!

Religious colleges, summer camps, day care

centers, retreat houses, counseling centers, meeting

halls, and adoption agencies may be sued under public

accommodations laws for refusing to offer their

facilities or services to same-sex couples.22 Or they

may be penalized by loss of licensing,”* accredi-

tation,24 government contracts,25 access to public

2! Laurie Goodstein, Illinois Bishops Drop Program over Bias

Rule, N.Y. Times, Dec. 29, 2011, at Al6.

22 See Stern, supra note 17, at 37-43 (assessing reach of

public accommodation laws).

23 Id. at 19-22 (describing licensing issues in both commercial

and not-for-profit sectors).

24 See id. at 23-24 (describing accreditation disputes in

various academic disciplines); D. Smith, Accreditation

Committee Decides to Keep Religious Exemption, 33 Monitor on

Psychology No. 1, Jan. 2002, at 16 (describing American

Psychology Association proposal to revoke accreditation of

religious colleges and universities with statements of faith that

preclude sex outside of marriage).

25 See Executive Order No. 13672, 79 Fed. Reg. 42791 (July

21, 2014) (prohibiting federal contractors from sexual-

orientation discrimination in employment ). This Order leaves

untouched an exemption (of uncertain scope) allowing religious

organizations with government contracts to prefer members of

their own faith in employment. Executive Order No. 13279 § 4,

67 Fed. Reg. 77141 (Dec. 12, 2002).

26

facilities,26 or tax exemption.?’? Tax exemption raises

particular concern because of this Court's decision in

Bob Jones University v. United States, 461 U.S. 574,

602-04 (1983), rejecting a free-exercise claim to tax

exemption for a racially discriminatory religious

college. The Court in Bob Jones took pains to

emphasize that it was considering only schools, not

“churches or other purely religious institutions,” and

that it relied on the government’s compelling interest

“in denying public support to racial discrimination in

education.” Jd. at 604 n.29. Bob Jones should not be

extended to religious organizations that refuse to

recognize same-sex civil marriages.

3. Disputes have also arisen about individuals who

provide creative and personal services that directly

assist or facilitate marriages. Must a wedding

planner, or a wedding photographer, plan or

photograph a same-sex wedding, even though she

thinks the ceremony is a sacrilege that makes a

2% See Evans v. City of Berkeley, 129 P.3d 394 (Cal. 2006)

(upholding revocation of boat berth at public marina because of

Boy Scouts’ refusal to pledge not to discriminate against gay

members); Boy Scouts of America v. Wyman, 335 F.3d 80 (2d Cir.

2003) (holding that Boy Scouts may be excluded from state's

combined charitable campaign, for denying membership to

openly gay individuals); Jonathan Turley, An Unholy Union:

Same-Sex Marriage and the Use of Governmental Programs to

Penalize Religious Groups with Unpopular Practices, in Laycock,

Picarello, & Wilson, supra note 13, at 59, 69-76 (discussing these

cases).

27 See Douglas W. Kmiec, Same-Sex Marriage and the

Coming Antidiscrimination Campaigns Against Religion, in

Laycock, Picarello, & Wilson, supra note 13, at 103 (describing

threat to tax exemption for religious organizations with objec-

tions to same-sex marriage); Turley, supra note 26, at 62-69

(same).

27

mockery of the religious institution of marriage??®

Must a counselor in private practice counsel same-sex

couples about their relationship difficulties, even

though he thinks their relationship is religiously

prohibited or intrinsically disordered? Few if any

same-sex couples would ever want to work with such

a counselor. But disputes have arisen in such cases,

facilitated by professional societies and educational

programs that treat commitment to the gay-rights

view of these issues as a matter of professional

ethics.29 Such efforts do not obtain counseling for

same-sex couples, but they do threaten to drive from

the helping professions all those who adhere to

longstanding religious understandings of marriage.

At the very least, these professionals’ religious-liberty

claims should be taken seriously.

Those claims are typically limited in scope. The

wedding vendors do not refuse to serve gays and

lesbians as such; the florist in a recent case knowingly

designed flower arrangements for the complaining

couple for years, for many occasions, before refusing

to design arrangements for their wedding. She did

not discriminate against gays as such; she declined to

do the wedding because she understood it as a

religious event.

A broad refusal to deal with gays and lesbians, or

28 Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M.

2013), cert. denied, 134 S. Ct. 1787 (2014) (refusing religious

exemption for photographer who declined on religious grounds to

photograph same-sex commitment); State v. Arlene’s Flowers,

Inc., No. 13-2-00871-5, http://www.adfmedia.org/files/Arlenes

FlowersSJruling.pdf (Wash. Super. Ct. Feb. 18, 2015).

29 See examples cited in note 18 supra.

3% Arlene’s Flowers, supra note 28, at 6-7.

28

a refusal by a large commercial business, would

implicate compelling interests in ensuring gays’ and

lesbians’ access to services, making accommodation of

the objector improper. But the actual cases involve

individuals’ objections to direct participation in

counseling or in working to make the wedding

ceremony the best that it can be.

A reasonable analog to these claims is a gay

publicist asked to do public relations for an anti-gay

activist group, or a gay photographer asked to do

promotional pictures for an anti-gay rally. They would

refuse, and if they were forced to do the job, they

would no doubt be conscience stricken and suffer

significant emotional harm. In most jurisdictions, the

law would protect their refusal; antidiscrimination

laws generally do not prohibit discrimination against

speech or ideologies. Photographers who decline to

memorialize same-sex weddings make an analogous

claim, but their refusal generally is held to fall within

the laws against sexual-orientation discrimination.

Protecting their analogous claim of conscience thus

requires some form of religious exemption.

4. These religious-liberty disputes can arise across

a wide range of factual circumstances. But they

involve a discrete and bounded set of potential

claimants: churches, synagogues, and other places of

worship, not-for-profit organizations with strong

religious commitments, and individuals in a few

occupations offering personal services’ closely

connected to marriage. What is newly at issue in the

wake of same-sex marriage is the right to refuse

religious recognition to civil marriages that are

fundamentally inconsistent with religious definitions

of marriage.

29

Ill. Doctrinal Tools Are Available to Protect

Religious Liberty with Respect to Marriage.

It is not necessary or appropriate to deny the right

to same-sex civil marriage in order to protect the

religious liberty of organizations and individuals.

Multiple doctrinal tools are available to offer

protection. This Court should make clear that these

tools remain available in a world with same-sex

marriage.

A. Religious Organizations Have the Right to

Make Internal Decisions That Affect Their

Faith and Mission.

In Hosanna-Tabor Evangelical Lutheran Church

and School v. EEOC, 132 S. Ct. 694 (2012), this Court

confirmed the longstanding rule that “ministers”

cannot sue their religious employers for employment

discrimination. But Hosanna-Tabor does not merely

recognize the ministerial exception to employment-

discrimination law, as important as that is. The

decision rests on a broader principle: that government

may not interfere “with an internal church decision

that affects the faith and mission of the church itself.”

Id. at 707. This plainly covers the religious body’s

definition of marriage and its willingness or unwil-

lingness to solemnize or celebrate a marriage, or to

provide the space for doing so. But it also extends

prima facie to the ongoing decision whether to

recognize, for purposes internal to the religious

organization, a marriage solemnized elsewhere.

This right to define religious doctrine and apply

that doctrine to internal decisions extends beyond

places of worship. Hosanna-Tabor involved a religious

school, and the lower courts have applied the doctrine

30

to ministers employed in religious colleges,*! campus

ministries,?2 nursing homes,** hospitals,34 mission

agencies,*> and diocesan bureaucracies.*®

The ministerial exception imposes an absolute bar

to regulation within its scope. This may be an

exception to the more corimon approach of strict

scrutiny, or it may reflect a categorical judgment that

the state never has a compelling interest in forcing an

unwanted minister on an unwilling religious

organization. There may be other internal decisions

for which compelling interests are more readily

conceivable — say, protecting children — and for

which the appropriate standard of protection is strict

scrutiny. But cases in which government will have a

compelling interest in regulating religious decisions

inside a religious organization must be quite rare.

And religious recognition of religiously invalid mar-

riages is not such a case.

31 Petruska v. Gannon University, 462 F.3d 294 (3d Cir.

2006); EEOC v. Catholic University, 83 F.3d 455 (D.C. Cir. 1996).

32 Conlon v. InterVarsity Christian Fellowship/USA, 2015

WL 468170 (6th Cir. Feb. 5, 2015).

33 Shaliehsabou v. Hebrew Home, 363 F.3d 299 (4th Cir.

2004).

34 Scharon v. St. Luke’s Episcopal Presbyterian Hospitals,

929 F.2d 360 (8th Cir. 1991).

35 Natal v. Christian and Missionary Alliance, 878 F.2d 1575

(1st Cir. 1989).

3% Alicea-Hernandez v. Catholic Bishop, 320 F.3d 698 (7th

Cir. 2003).

31

B. Religious Organizations Have the Right to

Take “External” Actions, Subject to the

Compelling Interest Test, If a Religiously

Burdensome Law Has Secular Excep-

tions.

Some decisions are crucial to “the faith and

mission” of a religious organization or individual but

cannot easily be characterized as “internal.” This may

be the case when religious organizations offer services

to the general public, as when Catholic Charities

places children for adoption, or a religious college

admits students of many faiths and of none. Wherever

the line is ultimately drawn between internal and

external, decisions on the external side of the line may

be protected by the rule in Employment Division v.

Smith, 494 U.S. 872 (1990).

That rule is more protective than has sometimes

been assumed. Smith held that the Free Exercise

Clause creates no right to exemption from neutral and

generally applicable laws, such as the “across-the-

board criminal prohibition” at issue in that case. Id.

at 884. Smith’s understanding of “generally applicable

law” is indicated by its explanation of Sherbert v.

Verner, 374 U.S. 398 (1963). Sherbert held that a

worker who lost her job for refusing to work on her

Sabbath was constitutionally entitled to unemploy-

ment compensation. The state required her to be

available for work or lose eligibility, but that rule

contained “at least some” secular exceptions. Smith,

494 U.S. at 884. Therefore, the Court said, the

Constitution required a religious exception as well.

Obviously there cannot be many acceptable reasons

for refusing available work and claiming a govern-

ment check instead, but there were “at least some.”

32

The implication is that even rather narrow secular

exceptions make a law less than generally applicable.

The Court subsequently made clear that

categorical exceptions are as relevant as individual-

ized exceptions. “[C]Jategories of selection are of

paramount concern when a law has the incidental

effect of burdening religious practice.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 542 (1993); see id. at 543-44 (relying on categor-

ical exclusions such as hunting, fishing, exterm-

ination, and euthanasia to show that ban on animal

sacrifice was not generally applicable). The facts of

Lukumi were extreme, but the Court was clear that

its decision was not limited to such extreme cases. The

ordinances in Lukumi fell “well below the minimum

standard” of general applicability. Jd. at 543.

Many laws contain exceptions or gaps in coverage.

When a law exempts some category of secular conduct,

but prohibits religious conduct that causes the same

or similar alleged harms, the state “devalues religious

reasons for [the regulated conduct] by judging them to

be of lesser import than nonreligious reasons.” Jd. at

537-38. Sometimes explicitly, and far more often

implicitly, a secular exception without a religious

exception indicates a “value judgment” that secular

motivations “are important enough to overcome” the

government's asserted interest, “but that religious

motivations are not.” Fraternal Orde, of Police v. City

of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (Alito, J.).

Not every federal judge has read Smith and Lukumi

as carefully as then-Judge Alito. But his reading is the

most faithful to this Court’s opinions and to the

underlying constitutional provision read in light of

those opinions.

33

Some anti-discrimination laws are neutral and

generally applicable under this standard, but others

are not. If, for example, an anti-discrimination law

exempts very smal] businesses — at least if that

exemption reflects a purpose to respect their privacy

or free them from the burden of regulation — then the

Constitution requires exemptions for religious

conscience, subject to the compelling interest test. In

a wide range of cases, religious liberty can be

protected under Smith.

C. Religious Liberty Is Also Protected by

State Constitutions and by State and

Federal Statutes.

With respect to federal law, the Religious Freedom

Restoration Act (RFRA), 42 U.S.C. §§ 2000bb—2000bb-

4, protects against substantial burdens imposed on

religious liberty. RFRA was enacted to protect

religious freedom legislatively, against the risk that

the constitutional rule in Smith might be interpreted

in the least protective manner.

With respect to state law, additional protection for

religious liberty is provided by state constitutions and

state RFRAs. Nineteen states have now enacted state

RFRAs,*7 and in twelve additional states, courts have

held that their state constitutions protect the exercise

of religion from neutral and generally applicable

laws.3® That is, Congress and thirty-one states have

rejected the unprotective half of the rule in Smith.

These state-law protections for religious liberty

%* For citations, see Douglas Laycock, Religious Liberty and

the Culture Wars, 2014 U. Ill. L. Rev. 839, 845 n.26.

% For citations, see id. at 844 n.22.

34

are of course not this Court’s responsibility. But if the

Court invalidates state bans on same-sex civil

marriage, it should clearly indicate that it does not

mean to preclude state-law protections for religious

liberty in this context. The Court would be protecting

same-sex couples from discrimination by states. It

would not be directing states to override the free

exercise of religion by religious organizations or

individual believers.

D. In an Appropriate Future Case, the Court

Should Reconsider Free-Exercise Exemp-

tions from Generally Applicable Laws.

Some religious refusals to recognize same-sex

marriages may be fundamental exercises of

conscience, but may not be fairly viewed as “internal

decisions,” and may be subject to a law with no

exceptions — one that is truly generally applicable. In

such a case, the Court should be open to reconsidering

the unprotective half of the rule announced in Smith.

As Justice Souter once explained, there are many

reasons to reconsider Smith, beginning with the fact

that the rule there announced was neither briefed nor

argued. Lukumi, 508 U.S. at 571-77 (1993) (Souter, J.,

concurring in the judgment).

Although twenty-five years have now elapsed,

Smith cannot be said to have become embedded in the

law. Smith’s rule about generally applicable laws has

been interpreted only in Lukumi, which would have

come out the same way under any standard. Smith

was merely a background assumption in City of

Boerne v. Flores, 521 U.S. 507 (1997), which

interpreted a completely different clause of the

Constitution.

35

Smith was not applied in Locke v. Davey, 540 U.S.

712 (2004). The ban on theology scholarships in that

case was neither neutral nor generally applicable; it

was upheld on the ground that the refusal to fund in

that case did not impose a cognizable burden on the

exercise of religion. Jd. at 720-21. Smith was not

applied in Hosanna-Tabor, 132 S. Ct. 694, which was

decided under the separate doctrine about internal

church decisions. Nor was Smith applied in Hobby

Lobby, 134 S. Ct. 2751, or in Holt v. Hobbs, 135 S. Ct

853 (2015). or in Gonzales v. O Centro Espirita

Beneficente Uniao do Vegetal, 546 U.S. 418 (2006), all

of which were decided under federal religious-liberty

legislation.

These are all the significant free-exercise decisions

since Smith; the Court’s remaining citations to Smith

are little more than passing references and occasional

cursory resolutions of secondary issues that were left

unexplored. It is not too late to have full briefing and

argument on the rule in Smith.

Heightened scrutiny of laws burdening the free

exercise of religion would provide a means of

protecting the essential interests of both same-sex

couples and religious dissenters. In the example of

adoption services, a court might consider whether

comparable services are readily available from a

secular agency. If so, it might conclude that there is

no compelling interest in forcing religious adoption

agencies to the hard choice of ceasing their operations

or repeatedly violating their religious teachings on the

nature of marriage.

Smith appears to mean that if a rule is generally

applicable, government can _ refuse _ religious

exemptions whether or not it has a plausible reason,

36

or any reason at all. A rule of law that takes account

of the weight of the competing constitutional interests

would do justice more often than a rule that ignores

those interests.

Whether or not Smith is reconsidered, there are

important tools available to protect religious liberty

within Smith itself, in the doctrine of Hosanna-Tabor,

in the federal RFRA, and in state law. The Court

should use these federal tools to protect religious

liberty with respect to marriage, and it should make

clear that state courts and legislatures are free to use

state law to the same end.

CONCLUSION

The judgments below should be reversed. And this

Court should make clear its commitment to protect

the religious liberty of churches, synagogues, other

religious organizations, and individual believers who

refuse to recognize same-sex civil marriages.

Respectfully submitted,

Douglas Laycock

(Counsel of Record)

Univ. of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

434-243-8546

dlaycock@virginia.edu

Thomas C. Berg

University of St. Thomas

School of Law

MSL 400, 1000 LaSalle Ave.

Minneapolis, MN 55403

37

651-962-4918

tcberg@stthomas.edu

March 6, 2015

38

APPENDIX

Identifying the Individual Amici

All amici join this brief in their personal capacity.

Their respective institutions take no position on the

issues in these cases.

Douglas Laycock is the Robert E. Scott

Distinguished Professor of Law at the University of

Virginia. Issues of religious liberty have been a

central part of his scholarship for nearly forty years.

He is co-editor of the leading book on these issues,

Same-Sex Marriage and Religious Liberty (2008), and

he has written extensively about the interaction

between religious liberty and disagreements over

sexual morality. Douglas Laycock, Religious Liberty

and the Culture Wars, 2014 U. Ill. L. Rev. 839;

Douglas Laycock, Sex, Atheism, and the Free Exercise

of Religion, 88 U. Det. Mercy L. Rev. 407 (2011).

Thomas C. Berg is the James L. Oberstar Professor

of Law and Public Policy at the University of St.

Thomas (Minnesota). His scholarship has focused on

religious liberty; among other things, he is co-author

of a leading casebook, Religion and the Constitution

(3d ed., Aspen Publishers 2011). He has written

several articles discussing issues concerning same-sex

marriage and religious liberty. Thomas C. Berg,

Progressive Arguments for Religious Organizational

Freedom, 21 J. Contemp. Legal Issues 279 (2013);

Thomas C. Berg, What Same-Sex-Marriage and

Religious-Liberty Claims Have in Common, 5 Nw. J.

L. & Soc. Pol'y 206 (2010).

David Blankenhorn is founder and president of the

Institute for American Values, a nonpartisan

organization whose mission is to study and

A-1

strengthen civil society. He is the author of Fatherless

America (1995), The Future of Marriage (2007), Thrift:

A Cyclopedia (2008), and New York's Promise (2013).

He is the co-editor of nine more books, the most recent

of which is American Thrift: A Reader (2013). A 2007

profile in USA Today describes him as making “a

career of thinking about big issues” and describes the

Institute for American Values as “a catalyst for

analysis and debate among those with differing

views.” A 2012 profile in the Deseret News says: “A

soft-hearted liberal raised in Mississippi and educated

at Harvard, he started his career as a civil rights

organizer and has since carved out a unique career

cutting across ideological lines. He is one of America's

most important liberal thinkers concerned about

family issues.”

Marie A. Failinger is Professor of Law at Hamline

University School of Law. She was the editor of the

Journal of Law and Religion for twenty-five years,

and teaches and lectures on theology and law. Among

her publications are Marie A. Failinger, Elizabeth R.

Schiltz and Susan J. Stabile, Feminism, Law and

Religion (2013); a forthcoming co-edited treatise on

Lutheran theology and secular law; and scholarly

articles on law and religion and on same-sex

marriage. She serves on the governing or advisory

boards of Church Innovations, the Council on Religion

and Law, the Journal! of Lutheran Ethics, Karamah,

and the Council on American Islamic Relations —

Minnesota.

Edward McGlynn Gaffney is professor of law at

Valparaiso University, where he teaches a course on

Comparative Constitutional Law (UK-US) and

seminars on Religious Freedom and American

A-2

Constitutional History. He is the co-author with

Judge John T. Noonan, Jr., of Religious Freedom:

History, Cases and Other Materials on the Interaction

of Religion and Government (3rd ed. 2011). A founding

member of the peer-reviewed Journal of Law and

Religion, he served on its editorial board for more than

twenty-five years. From the beginning of the

movement to recognize same-sex marriage to this

case, he has supported a harmonious approach both to

marriage equality and to the rights of religious

communities and believers to the free exercise of

religion.

A-3