How the U.S. Constitution is being invoked for progress and prejustice
The cheers of activists filled the air outside of the U.S. Supreme Courthouse as SCOTUS announced its decision in support of Obergefell v. Hodges. With the backing of the 14th Amendment, every state in the U.S. became formally required to issue and recognize marriages between two people — regardless of their sex.
This decision, which came down on July 26, was a huge step forward for the LGBTQ community, however the road to this decision was anything short of easy— dotted with lawsuits and acts of hate in which individuals sought to oppress and discriminate against minority sexual orientations.
While the national public support for same-sex marriage has reached a “record high” with 60 percent of Americans approving of same-sex marriage according to a May 2015 Gallup poll, a large minority of Americans (37 percent) still believe that same-sex marriage should not be considered legal. Although the survey was administered before the Obergefell ruling, the results shows a clear division between the cultural attitudes revolving around same-sex marriage.
Regardless, the importance of the ruling has found its way into the upcoming election season, as the same Gallup poll reports 1 in 4 Americans considering a candidate’s opinion on gay marriage as the single most important issue.
Since same-sex marriage has now become a constitutional right by way of the Supreme Court, many individuals see gay marriage as an encroachment on their religious freedom, forcing them to support something that they disagree with fundamentally. As a result, individuals in states such as North Carolina, Kentucky and Oregon have attempted to push back against the court’s ruling, by evoking their First Amendment right to practice religion freely.
“Much of the opposition to LGBT rights has evolved over time to be couched in religious terms,” said Molly Tack-Hooper, staff attorney for the American Civil Liberty Union of Pennsylvania. “Most of the debate today focuses on whether people who are opposed to equality for LGBT people should be exempt from such laws [that prohibit discrimination based on sexual orientation], and if so, how broad the religious exemptions should be.”
While the question of broadness may be valid in a philosophical sense, from a legal standpoint, Marc DeGirolami, author of The Tragedy of Religious Freedom and professor of law at St. John’s University, said: “The law fairly frequently permits [individuals], or might even require individuals to be exempted to laws based on a religious conviction.”
A ready example would be religious exemptions to the Universal Military Training and Service Act. The act, “makes it the obligation of male citizens and residents between 18 and 22 to receive basic military training and education as a member of the armed forces.” However, the exemption allows combatant training and service exemption for individuals holding strong religious oppositions to war, where they would otherwise be obligated to serve.
As such exemptions arguably exist within narrow contexts, the most prominent statutory law regarding religious exemptions is the Religious Freedom Restoration Act, which states “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” essentially limiting the ability for the government, or in this case, the court, to enforce laws that burden people’s religious beliefs. The law goes further, placing more scrutiny on the government; unless the government demonstrates that the application is in “furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that compelling governmental interest,” an individual’s religious freedom cannot be infringed upon.
The extent to which the Religious Freedom Restoration Act can be used to justify impediments to same-sex marriages are currently being played out in the courts, however Tack-Hooper said she believes that religion cannot justify discrimination.
“Courts have repeatedly recognized that other civil rights laws that prohibit discrimination based on race, ethnicity, religion, and gender serve a compelling government interest,” she said.“The government’s interest in prohibiting discrimination based on sexual orientation and gender identity is no less compelling.”
Nevertheless, requests for religious exemptions are being found all across the country. In McDowell County, North Carolina, all four magistrates have stated they will no longer be performing marriages based on a recently passed state senate bill based on the Religious Freedom Restoration Act, which mandates, “Every magistrate has the right to recuse from performing all lawful marriages under this Chapter based upon any sincerely held religious objection.”
While magistrates are legally appointed government employees, the RFRA’s may even apply to democratically elected government employees such as judges and city clerks. As Eugene Volokh, professor of religious law at UCLA wrote in his blog, The Volokh Conspiracy: “Nothing in [the RFRA] exempts accommodation claims by elected officials.”
This has far-reaching implications, and in Volokh’s perspective, provides a very tangible legal defense for elected officials. However, the qualifications for receiving a religious exemption are anything but clear. DeGirolami said he believes that the RFRA have been framed in a broad manner such that “Courts have had to engage in a sort (of) balancing act, weighing individual rights against the interest of the state.”
Made infamous by defying a court order to issue marriage licenses to same-sex couples, the actions of Kentucky county clerk Kim Davis exemplify the fine line between legal use of civil liberties, and unconstitutional discrimination.
Evan Gerstmann, professor of political science at Loyola Marymount University and author of Same-Sex Marriage and the Constitution said “RFRA can’t allow anybody to violate the constitution.”
However, Gerstmann reiterated the thinking of Tack-Hooper, but said he thinks religious opt-outs as applied to state workers are ambiguously constitutional.
“If states choose to allow religious opt outs [for gay marriage], that may or may not not violate the constitution,” he said. “It could cause an Establishment Clause problem, preferring religion over non-religion, or it could violate the constitutional rights of same-sex couples if it prevented them from getting married. But neither of those arguments are slam dunks.”
Religious exemptions are not only being requested by government officials. This past year, Sweets Cakes By Melissa, a local bakery based in Oregon, was forced to pay $135,000 in damages to a lesbian couple after the cake maker refused to make a cake for the couples’ wedding based on religious beliefs. The cake maker refusing to serve gay patrons brings to mind segregation-era lunch counters refusing to serve African Americans, a parallel that Oregon courts could not ignore. This court ruling can be attributed to an anti-discrimination law in Oregon, which bars businesses from discriminating or refusing service based on sexual preference.
Nevertheless, there may be circumstances that could lead to a religious exemption. DeGirolami explained a case for exemption could be made when a person’s service involves creatively or artistically celebrating the institution of gay marriage contrary to that individual’s religious beliefs.
DeGirolami brought forth the example of a christian wedding photographer who might have serious problems photographing a same-sex marriage, saying: “there might be differences between providing videographic service in the sense that you have to be kind of celebrating the gay marriage in order to provide an adequate service to just serving someone in a restaurant when they come to sit down.”
While these two examples would have the same impact on a gay couple, DeGirolami argues that the court could view them as being categorically different.
In the end, though the court has legalized same-sex marriage, the road to full acknowledgement and equality for same-sex minorities requires cultural attitudes to move beyond their time.
“The same arguments about religious freedoms were made during the civil rights movement,” Tack-Hooper said. “Looking back, arguments that employers should be able to use their religious conscience to decline to hire someone because of their race seem hard to believe.”
Matthew Nitzberg is a junior sociology major whose favorite amendment happens to be the third. You can email him at email@example.com.