an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As religious liberty objections to marriage continue to mount, what does Obergefell v. Hodges have to say?
Opponents have long invoked religious liberty as an argument against same-sex marriage. As an amicus brief submitted in Obergefell by religious groups, including the National Association of Evangelicals, the Mormon Church, and the Southern Baptist Convention, argued: “Recognizing a new right to same-sex marriage would harm religious liberty.” The Court clearly rejected this religious liberty argument against same-sex marriage.
But what about claims for religious exemptions for those who object that doing business with persons in a same-sex marriage—for example, providing the couple wedding flowers or employment benefits—might make the objector complicit in the assertedly sinful conduct of another? Complicity-based conscience claims of this kind have dominated debates over state RFRAs in Arizona and Indiana. The grounds on which Justice Kennedy rejected the religious liberty argument against same-sex marriage suggest important limits on these claims to religious exemptions.
Writing for the Court, Justice Kennedy was careful not to “disparage” those “who deem same-sex marriage to be wrong . . . based on decent and honorable religious . . . premises”; indeed, Windsor’s animus arguments, which inspired protests from those with traditional religious beliefs about marriage, are nowhere to be found in Obergefell. Yet Justice Kennedy warned that “the necessary consequence” of state sanction of religious opposition to same-sex marriage “is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” He is concerned about not only the material but also the dignitary harms inflicted on same-sex couples when the state sanctions religious opposition to same-sex marriage.
This reasoning speaks volumes about the emerging conflicts over religious exemptions and LGBT equality. Religious liberty cases regularly recognize third-party harm as a limitation on accommodation. In Burwell v. Hobby Lobby Stores, the Court’s 2014 decision granting a religious accommodation to employers that objected to providing employees with health insurance covering contraception, Justice Kennedy concurred, warning that religious accommodations must not impose significant harms on other citizens. In fact, his concern about third-party harm guided the five-justice majority to a decision that recognized the religious claims of the employers on the assumption of “zero” effect on female employees. As we have shown, the Court decided Hobby Lobby on narrow tailoring grounds that illuminate the federal RFRA’s application more generally.
Chief Justice Roberts also read Justice Kennedy’s discussion of religious liberty objections to marriage as having import beyond the questions at issue in Obergefell. In dissent, the Chief Justice found the majority’s “assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage . . . hard to square with the very next sentence, in which the majority explains that ‘the necessary consequence’ of laws codifying the traditional definition of marriage is to ‘demea[n] or stigmatiz[e]’ same-sex couples.” Worrying that the Court’s decision “creates serious questions about religious liberty,” the Chief Justice implicitly recognized how Justice Kennedy’s concern with third-party harm, including dignitary harm, counsels against broad exemptions.
We argue that concern about third-party harm should guide decisions about whether and how to accommodate religious liberty claims in our American Prospect essay, Conscience and the Culture Wars, and our recent article, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, in the Yale Law Journal. There we devote special attention to the kinds of religious exemption claims arising in the contexts of abortion, contraception, and same-sex marriage. Many claimants assert what we call “complicity-based conscience claims”—objecting to being made complicit in the assertedly sinful conduct of their fellow citizens. So, for instance, business owners refuse to provide goods and services to same-sex couples because they object to being made complicit in relationships they deem sinful. Accommodating claims of this kind can inflict harms on third parties. These include material harms—obstructing access to goods and services—and dignitary harms—stigmatizing other citizens as sinners. Justice Kennedy’s approach in Obergefell suggests that these harms matter in deciding whether and how to accommodate claims for religious exemptions.