Tuesday, September 01, 2015

Current Culture War Cases and the Constitution

Mark Tushnet

1. I'm deeply puzzled about the constitutional basis for the Rowan County clerk's claim that she cannot be forced to have her name attached to marriage certificates for couples who, her religious beliefs tell her, simply cannot be "married" in God's eyes. I would have thought in the first instance that the obligation to sign marriage certificates is one of those neutral laws of general applicability to which Smith applies. And I can't see how either of the ad hoc exceptions to Smith for hybrid claims or for claims with respect to laws for which the state itself provides exceptions applies. So, I simply don't see what constitutional claim the clerk has. And, in the second instance I understand that the clerk is refusing to issue certificates for anyone in Rowan County, which, she claims, means that she's not discriminating on the basis of sexual orientation in refusing to issue the certificates. But that seems to me irrelevant under Smith because she appears to be claiming a right to free from an obligation imposed on her by a neutral law etc. And, in any event, as I understand things the couples are complaining that, though they could obtain certificates in the neighboring county, requiring that they do so imposes a constitutionally significant burden on them. If they are right, the state has an obligation to eliminate the burden -- for example, by giving marriage certificates signed by someone other than the county clerk the same legal status as those signed by clerks who object on religious (or any other?) grounds to having their names attached to the certificates.

I should note that I'm one of the handful of scholars of the religion clauses who thinks that Smith was correctly decided (and is good for religion, though my reasons for that view are quite idiosyncratic), though our numbers appear to be growing.

2. I'm less puzzled about Judge Leon's extension of religious accommodation claims under RFRA to non-religious conscience-based claims. There's a fair amount of scholarly commentary making the suggestion that such extensions ought to occur. Here, though, the problem is that the extension occurs not (direct) through constitutional interpretation but through statutory interpretation to avoid a constitutional question. That's what the Court did in the conscientious-objector cases regarding religion-based draft exemptions. But, I think, the statutory language in the draft cases was a bit more tractable than the language of RFRA ("Supreme Being" is more supple than "religious," it seems to me -- particularly when the claim is precisely that the objection is not based on religion). The implication might be that RFRA is unconstitutional as an establishment of religion, as Justice Stevens said in Boerne and as Justice Harlan suggested (in connection with the selective service act) as the CO cases accumulated. But, it seems to me, there's almost zero chance that Judge Leon's holding will survive an appeal, and so the case doesn't seem to me worth much ink (or many pixels).

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