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.

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