The Coming Battles Over Religious Objections to Participation in Same-Sex Marriages Will Be Legally Complex

ASHLAND, KY - SEPTEMBER 3: A man waves a gay pride flag during a protest in front of the federal courthouse September 3, 2015
ASHLAND, KY - SEPTEMBER 3: A man waves a gay pride flag during a protest in front of the federal courthouse September 3, 2015 in Ashland, Kentucky. Kim Davis, the Rowan County Clerk of Courts, is expected to appear at a contempt of court hearing at the courthouse today. Citing a sincere religious objection, Davis, who is an Apostolic Christian, has refused to issue marriage licenses to same-sex couples in defiance of a Supreme Court ruling. (Photo by Ty Wright/Getty Images)

In the wake of recent legislative and constitutional developments relating to same-sex marriage, some public officials and private citizens have sought to be exempt from participating in such marriages on religious grounds. The story of Kim Davis--the Kentucky county clerk who was briefly jailed for refusing to issue same-sex marriage licenses--may be the best-known example, but there are many others.

My own state of Oregon, for example, has spawned two highly publicized stories. On the government side, Marion County Judge Vance Day is currently in the midst of a Judicial Fitness Commission hearing based in part on allegations that he declined to perform marriage ceremonies for same-sex couples. And in the private realm, the owners of "Sweet Cakes by Melissa" are appealing a $135,000 damage award arising out of their refusal to bake a wedding cake for a same-sex couple. In both cases, the objections to participation were based on religious beliefs.

When these cases arise, the question that usually comes up is whether state or federal law provides any sort of religion-based exemption from compliance with certain laws. Like any other question involving a potential conflict between two sources of law, this can be quite complex. Before diving into the details, it's worth outlining two basic principles:

  • Within a particular legal framework--state or federal--constitutional provisions generally override statutes, administrative rules, and other "ordinary" laws. We typically think in terms of the federal constitution, but states have their own constitutions as well. So if, for example, a state statute conflicts with the same state's constitution, the statute is invalid.
  • Between those two frameworks, federal law overrides state law. This generally trumps the "constitution overrides statute" rule stated above, so, for example, a valid federal statute will generally override a conflicting provision in a state constitution.
  • In the Davis, Day and Sweet Cakes examples, here's how this plays out. The first question in each case is whether, without regard to the claimed religious exemption, the conduct violates some applicable rule. In the Sweet Cakes case, for example, the threshold question was whether the refusal to serve the couple violated Oregon's anti-discrimination statute.

    If the answer is "no," there's no need to go any further. Moreover, although the question of whether a religious exemption applies is legally a separate one, a judge might consider that question in deciding the first one. Under the doctrine of "constitutional avoidance," judges (at least in theory) prefer to avoid deciding constitutional questions, so if there are multiple plausible ways of interpreting a statute, a judge may choose the one that avoids having to reach the constitutional issue.

    If the answer is "yes," the next question is whether any other legal provision provides any sort of exemption or defense. The most obvious source of protection might seem to be the Free Exercise Clause of the federal First Amendment. However, that clause has been interpreted in a way that doesn't provide much protection under these circumstances.

    In Employment Division v. Smith, two Native Americans who used peyote for sacramental purposes argued that they should be exempt, on Free Exercise grounds, from a state law barring such use. The Supreme Court disagreed, holding that if a law is generally applicable and not directed towards religious conduct, the First Amendment generally does not provide an exemption to those who claim that their religious beliefs prevent them from complying.

    The story doesn't end there. Smith was a controversial decision. In 1993, Congress enacted the Religious Freedom Restoration Act ("RFRA"). In a nutshell, RFRA provided that if any government rule "substantially burdened" someone's exercise of religion, it could only be valid if it was the "least restrictive means" of furthering a "compelling governmental interest." This test--known as "strict scrutiny"--is difficult to pass, and appeared to provide much more protection than the First Amendment as interpreted in Smith.

    But . . . we're still not done. In 1997, the Supreme Court decided that Congress didn't have the power to impose RFRA's requirements on state and local governments. Congress can, however, impose those requirements on the federal government and certain persons and entities connected with it. (The Hobby Lobby case, involving a claimed religious exemption from HHS regulations relating to certain contraceptives, was decided on RFRA grounds, not under the First Amendment. It was the enhanced RFRA protections that led to the challengers' legal victory.)

    Additionally, some states have enacted their own versions of RFRA. These state RFRAs, along with any religious protection clauses in state constitutions, may provide religious exemptions beyond the limited protections provided by the federal First Amendment, and unlike the federal RFRA can properly apply to rules enacted by state and local governments.

    And in case this discussion isn't yet dense enough, let's add yet another wrinkle. Some have argued that RFRA itself (either the federal statute or a state equivalent) violates another constitutional provision--the federal Establishment Clause, also found in the First Amendment. The argument is basically that exempting religious adherents from generally applicable laws constitutes an impermissible governmental benefit to religious groups.

    So where does that leave someone seeking a religiously-based exemption from a law? If the law at issue is a federal one, or there's some other sufficient federal connection, the federal RFRA comes into play and provides significant protections. If it's a state or local law, the challenger won't have much protection under federal law--the federal Free Exercise Clause doesn't offer much, and the federal RFRA won't apply. There may, however, be protection under a state RFRA or a state constitutional provision--unless that statute or provision is deemed to violate the federal Establishment Clause. We can expect all of these issues to be litigated heavily in the coming years.