The Uncertain Post-Obergefell World of Religious Exemptions

Today Americans United for the Separation of Church and State launched a new project, Protect Thy Neighbor, aimed, organizers said, at the overuse of religious exemptions in legislatures and the courts. The most immediate concerns of the project, launched less than two weeks since the Supreme Court legalized marriage equality nationwide in Obergefell v. Hodges, will be to combat efforts in some states, such as Texas, Alabama, North Carolina, and South Dakota, to thwart same-sex couples from obtaining marriage licenses. But its ultimate scope will be much broader, and will include lobbying efforts to defeat expansive religious freedom acts in the states, and litigating cases arising out of claims that religious freedom protects the rights, for example, of business owners who refuse wedding services to same-sex couples, or of religious institutions that refuse reproductive health care or insurance coverage to women.

The Rev. Barry Lynn, AU’s executive director and an ordained United Church of Christ minister, described the new project as one “all Americans can embrace, regardless of where and if they worship, no matter their political beliefs, their gender, their age or who they love.”

Tomorrow Americans United will send a legal memo to court clerks in Texas, where the state attorney general, Ken Paxton, has issued an opinion stating that county clerks, their employees, judges, and justices of the peace “retain religious freedoms that may allow accommodation of their religious objections to issuing same-sex marriage licenses.”

The attorney general in South Dakota is making a similar effort as well. But states endeavoring to block same-sex couples from obtaining licenses should draw a lesson from Alabama: together with other civil liberties groups, AU successfully represented same-sex couples to obtain marriage licenses despite efforts of the state supreme court chief justice, Roy Moore, and his staff to prevent them from exercising their rights after Obergefell, claiming it conflicted with biblical law.

But Obergefell isn’t the only case that will drive a new stream of legal objections, lawsuits, and legislative efforts that claim to protect the religious freedom of opponents of marriage equality. The expansion of private business owners’ religious rights in last year’s Burwell v. Hobby Lobby has helped spur what Lynn called a “dramatic spike” in cases involving photographers, bakers, caterers, florists, and hotel owners, for example, who try to deny wedding services to same-sex couples on religious grounds. “There is nothing trivial,” said Lynn, “about the insult that refusal of service represents. It is a demoralizing, offensive, and bigoted assault to human dignity.”

The religious objectors are not having success in administrative proceedings and the courts. Last week, the Oregon Commissioner of the Bureau of Labor and Industries ruled for a same-sex couple after they brought an action against Sweetcakes by Melissa, a Gresham, Oregon bakery that refused and continues to refuse to bake cakes for same-sex weddings. While many conservatives are portraying the ruling as “gag order” and a suppression of religious liberty and free speech rights–in other words, painting the business owners as the victims–the Commissioner, Brad Avakian, summarily dispatched with that claim in his opinion.

The Oregon public accommodations law, which prohibits discrimination against customers based on, among other things, sexual orientation, does not violate the free exercise or free speech rights of business owners, Avakian wrote. He cited the United States Supreme Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, a 1995 case in which the court found that “modern public accommodations laws are well within the State’s usual power to enact when a legislature has reason to believe that a given group is a target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.” Oregon’s own public accommodations law, Avakian went on, encompasses “the basic principle of human decency that every person, regardless of their sexual orientation, has the freedom to participate fully in society. The ability to enter public places, to shop, to dine, to move about unfettered by bigotry.”

The couple in the Sweetcakes case were only able to bring their case, though, because Oregon has laws protecting against sexual orientation discrimination in public accommodations. Most states do not, according to the Human Rights Campaign. Oregon, along with 16 other states, prohibit discrimination in public accommodations based on sexual orientation and gender identity; another four prohibit it based on sexual orientation only. In some states lacking such protections counties and cities have enacted them. (Arkansas, though, enacted a law prohibiting localities from doing so.) But in much of the country, contrary to the panic the religious right is stoking over bakers and photographers allegedly being forced into silence, or into a state of religious oppression, it’s legal for a bakery to refuse to bake a cake for a wedding that now cannot be legally barred in any state.

Americans United’s Lynn predicted that one of these cases involving denial of services to same-sex weddings, based on a religious objection, will eventually reach the Supreme Court. Such a case would represent a collision of the effects of Hobby Lobby, which held that business owners have religious rights in the workplace, protected by the federal Religious Freedom Restoration Act, and the effects of Obergefell, which held that denying marriage rights to same-sex couples is unconstitutional.

The majority opinion in Obergefell, which only tangentially touched on religious objections, focused on the dignity of same-sex couples and the imperative that they be treated equally. The word “dignity” appears nine times in the majority opinion in that case. It appears just once in Hobby Lobby–in Justice Anthony Kennedy’s concurring opinion (for those who believe in a “divine creator” and “divine law,” “free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.”) For the women affected by Hobby Lobby–the women who suffer the indignity of being told their $1,000 IUD isn’t covered because their boss thinks it’s tantamount to murder–dignity didn’t enter into the equation.

We’re focused on the bakers and the caterers, in part because the religious right has made such a spectacle of them, with hyperbolic pronouncements about the end of religious freedom and free speech. It’s easy to forget that in most states, as well as under federal law, LGBT people are left unprotected in public accommodations, housing, and employment law. It’s also regrettably easy to forget that religious exemptions, particularly after Hobby Lobby, are extremely hazardous to women’s equality and dignity.

  • DKeane123

    I wonder if Americans United for the Separation of Church will also go after religious exemptions for vaccinations? It seems as if it would be within the scope of “Protect Thy Neighbor”.

  • fiona64

    It is long past time for religious/philosophical vaccine exemptions to go away. I have no problem with medical exemptions, but the “I believe Jenny McCarthy” crowd needs to go away.

  • Jim Reed

    The battle has already been won. I could see an advantage to taking these legislative issues nice and easy. Let it play out over some time, because as time goes on it will become more and more clear that conservative Christianity is fighting for the right to discriminate. They have already lost, and the numbers can only continue to pile up against them. If you legislate too fast, it appears more like taking away their freedom of religion. If you legislate slower, it appears more like Christianity discriminating against a group of people, and fighting for their right to abuse them. I would be in favor of making sure conservative Christianity is given enough rope to hang themselves.

  • Fired, Aren’t I

    Nobody was talking about Christianity. The only mention of Christianity in fact occurred at the mention of a Reverend of the United Church of Christ being in SUPPORT of religious freedom.

    Stop tilting at windmills. It’s not cute anymore.

  • Fired, Aren’t I

    Hopefully, yes. Not sure how far the new law in CA goes, but hopefully it addresses this.

  • Jim Reed

    Sarah might be too politically cautious to state the obvious, but the opposition is conservative Christianity. I am just saying if we can see them in the process of cutting their own throats, why not just let them continue for a bit. I don’t see how they can cause any real damage to anyone but themselves.

  • There’s an anti-vaccination religion now? Who do they worship? Baal? The Great Axolotl?
    -dj.

  • “The battle has already been won.”

    Right, Jim. And Brown v. Board of Education settled that school thingie toot sweet, dinnit?

    -dlj.

  • Fired, Aren’t I

    Christian Scientism

  • Oh, right, I remember them.

    Their Lord is opposed to insurance, too. Call a Republican when your kid gets sick, right?

    -dlj.

  • gilhcan

    These arguments are “much ado about nothing,” at least much ado about what our Founders and the Framers of our Constitution attempted so clearly to avoid. Those “men” knew their history well. They were well aware of the horrendous problems that always resulted from any mingling of religion and politics, church and state.

    The solution of the problem for the minds of Supreme Court justices Antonin Scalia, his seldom-speaking shadow Clarence Thomas, and Samuel Alito–all Catholics, by the way, even though Thomas is a returned Catholic since becoming a justice–is to follow the reasoning of the Framers of our Constitution and end the convenience of licensing religious ministers to also act as civil magistrates in order to avoid the need of both civil and religious ceremonies.

    Additionally, no self-respecting homosexual should want to be a member of a church that does not fully accept them, including in all their sacramental activities. That alone would prevent any problem from arising.

    As for tax exemption, churches that would have to “shutter” because they cannot afford to pay their part of the burden of the public services they receive ought to close down or function in ways that do not require exceptional, unpaid public service like police and fire protection.

    George W. Bush’s Faith Based arrangements–and President Obama’s continuation of them–to hand over public funds to religion and churches should have been declared unconstitutional at the start. It is an example of our extremely dangerous submission to a repetition of the evil destruction that has always resulted historically from the mixture of religion and politics, church and state.

    Religion is claimed to promote good, but history proves it does the exact opposite when mixed with politics and government. The convenient extension of magistrate licenses to religious ministers to avoid double ceremonies has come to the point where the cart is leading the horse, where churches and their ministers presume they have the right to set the conditions for a civil license to marry.

    Solution? If churches wish to maintain a sacramental condition for marriage of their members, so be it, but that would not satisfy the civil need to protect the personal and property rights of the partners in the marriage nor of children that are a result of that marriage by birth or adoption.

    That means, like some other countries, we would cease giving magisterial licenses to church ministers so their presiding over a marriage satisfies civil requirements and any additional religious requirements of their particular church. Two ceremonies would be required of church members, first, civil, followed by whatever is devised in their churches. That would be a bit inconvenient for some church members, but it would resolve the problem.

    No church marriage would be recognized civilly unless it had been preceded by a civil ceremony presided over by a civil magistrate–not a church minister.