Harvard Law & Policy Review

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Let’s Force Religious Hypocrisy Out of the Closet

By Ana Choi*

In the wake of the Supreme Court’s decision legalizing same-sex marriage in Obergefell v. Hodges last summer, many conservative states have begun to pass legislative measures trying to stem the progress made by the LGBTQ community. North Carolina passed a law prohibiting transgender individuals from using bathrooms that do not match the gender on their birth certificates. Mississippi passed a law that allows churches, charities, and private businesses to decline services to individuals on the basis of “sincerely held religious beliefs or moral convictions…that:

(a) marriage is or should be recognized as the union of one man and one woman;

(b) sexual relations are properly reserved to such a marriage; and

(c) male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The Georgia legislature passed a similar bill, although it was ultimately vetoed by the governor.

In the debate over these legislative measures, the arguments have (unsurprisingly) been framed in very different terms by each side. Supporters argue that these laws are necessary to protect religious freedom, while opponents argue that these laws are authorizing hatred and bigotry towards the LGBTQ community. Most of the time, it seems like the two sides are talking past each other, refusing to even acknowledge the merits of the other side’s arguments.

However, in criticizing these laws, it is not even necessary to resort to language about hatred and bigotry; even if we were to accept that this is purely a religious freedom issue (which it is obviously not), the newly passed laws post substantial problems.

First of all, looking at Mississippi’s law, what does it mean to have a “sincerely held religious belief or moral conviction”? How can we distinguish between a “religious” belief and a regular belief or between a “moral” conviction and a regular conviction? Moreover, how can we tell when these beliefs and convictions are held “sincerely” or merely as cover for discrimination? Of course, these conceptual problems always come into play whenever the government provides accommodations for religious beliefs. However, the problems are more urgent in this context because the risk is not merely that the government will provide a benefit where none is due (for example, providing a kosher diet to a prisoner even though the prisoner does not actually believe in Judaism). Rather, the risk is that a false claim of a “sincerely held religious belief” will be used to justify acts of discrimination. Nobody can claim that in the absence of a “sincerely held religious belief,” refusing service to a same-sex couple is anything but discrimination.

Secondly, the First Amendment does not provide—and people do not expect—absolute protection of freedom of religion. In their daily lives, people deal with all sorts of burdens on their exercise of religion without expecting the government to intervene. If a private employer fires an employee because he refuses to work on the Sabbath, the government has no power to punish the employer. A state cannot prohibit schools from teaching evolution, and neither can it require schools to teach creationism. People’s religious beliefs are burdened all the time, but we as a society have learned to live with these burdens. Yet, supporters of the Mississippi law have not been able to explain why the obligation to provide services to same-sex couples is such an enormous, insurmountable burden that they need a special law to protect them against this burden even while they accept others. When the government is able to accommodate an individual’s religious belief without societal costs, then the magnitude of the burden on the religious belief is perhaps irrelevant. However, when the cost of accommodating the religious belief is to relegate a whole portion of the population to second class citizenship (the undeniable effect of these laws, regardless of the underlying motivation), then it does not seem unfair to ask how exactly the individual’s religious belief is being burdened.

Lastly, if supporters of the Mississippi law wish to defend their position, then they must be prepared to accept all its necessary implications. If the issue is truly about religious freedom, and if religious freedom is a value so dear that it justifies unequal treatment, then theoretically there should be no problem with laws that: 1) allow an airline owner to segregate the male and female passengers on a plane based on a religious belief against men and women sitting next to each other; 2) allow a store owner to refuse to sell kitchen tools to people who eat meat based on a religious belief against killing animals; 3) allow a restaurant owner to ban female customers who are not completely covered up based on a religious belief against female immodesty. There are no principled distinctions between these hypothetical laws and the Mississippi law. To the extent that there is a distinction, it is the fact that these hypothetical laws would be accommodating non-Christian beliefs. And surely defenders of the Mississippi law cannot claim that they only care about Christian freedom of religion.

Making a claim based on freedom of religion does not end the inquiry—it merely begins it. Unless supporters of the Mississippi law and other laws like it can provide answers to the questions posed above, it will be difficult for them to maintain that these laws are about freedom of religion and not discrimination. And as we wait for satisfactory answers, discrimination runs rampant under the guise of religious freedom.

 

* Ana Choi is a 3L at Harvard Law School.

 

Image by niiicedave – https://www.flickr.com/photos/33671002@N00/19169062764/, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=41852289

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Gay rights wins small, not big, at the Supreme Court

By Tom Watts*

Today, on the anniversary of Lawrence v. Texas and United States v. Windsor, the Supreme Court declared in Obergefell v. Hodges that states that deny legal recognition to same-sex couples are violating the Constitution. Marriage equality is the law of the land. This is a victory for the gay rights movement, which has been fighting for the right to marry for over forty years. It vindicates the enormous tide of lower-court decisions over the past two years. This is a great outcome.

But I’m disappointed. [Read more…] about Gay rights wins small, not big, at the Supreme Court

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From Windsor to Obergefell: The Struggle for Marriage Equality Continued

To mark today’s oral arguments in the same-sex marriage cases, HLPR online has released a Student Note from Volume 9.2 early! The Note is Tom Watts’s From Windsor to Obergefell: The Struggle for Marriage Equality Continued. Tom Watts, a fourth-year JD/MPP at Harvard Law School and Harvard Kennedy School, writes:

Prior scholarship has examined the legal history of the gay rights movement, but the post-Windsor flurry of litigation has only begun to be studied because it happened so quickly and recently. I seek to examine this recent history here. This Note proceeds in three parts. First, it examines Windsor and Perry, the two cases that precipitated the recent legal explosion, with particular emphasis on the features of Windsor and Perry that proved important or useful for later cases. Second, it examines the marriage equality cases that have reached decisions since Windsor and Perry, dividing the litigation into four periods: preliminary district court decisions, final district court opinions, circuit court opinions, and the circuit split that led to the Supreme Court taking the case. Third, it looks at the trends arising out of those decisions.

This Note is particularly relevant now as the litigation that this Note examines finally reaches the Supreme Court. Give it a read today!

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Same-sex Marriage Preview IV

By Tom Watts*

This is the fourth and final post in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, Part II is here, and Part III is here.

In the previous three posts, I discussed the ways in which the Supreme Court might analyze the validity of the state same-sex marriage bans under the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs also argue that the bans violate the Due Process Clause of the Fourteenth Amendment. In this post, I will turn to that issue.

As an initial matter, one might fairly ask, “What on Earth does same-sex marriage have to do with ‘due process’?” The answer is somewhat tortuous. The Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” These words might be read to say that a state could deprive a person of liberty, such as the liberty to engage in same-sex intercourse, as long as it goes through the right processes. The Supreme Court held otherwise, though. The Supreme Court has decided that some liberties are so fundamental and traditional (perhaps because they are “implicit in the concept of ordered liberty” or perhaps because they are “deeply rooted in our nation’s history and tradition”) that a state cannot deprive people of them regardless of the process used. (As Justice Scalia pointed out in dissent in Lawrence, the Court sometimes recognizes a “fundamental right” under the Due Process Clause and then applies strict scrutiny to any law burdening that right, but because few laws survive strict scrutiny, this approach comes to nearly the same thing as that described in the previous sentence.) This is termed “substantive due process,” a phrase that has been compared to the phrase “green pastel redness” for its oxymoronic quality.

If it sounds as though the concept of substantive due process has little to recommend itself, that may be true, but a series of decisions from Roe v. Wade (and its more recent counterpart) to Lawrence v. Texas have taken substantive due process to be a guarantee of a kind of bodily autonomy and control over personal intimate decisions and relations. Some of the most progressive decisions of the Supreme Court have been under the rubric of substantive due process.

For this case, the most relevant aspect of the autonomy right guaranteed by substantive due process is the right to marry, recognized in 1967 in Loving v. Virginia. Loving struck down the interracial marriage bans that existed throughout the South at the time. (In one of the ironies of history, Justice Thomas vocally opposes substantive due process and is in an interracial marriage that might still be illegal if not for the Loving decision.) The plaintiffs argue that the same reasoning ought to apply here as in Loving: the liberty involved in the right to marry includes the liberty to choose your partner, and the government can’t take that away from you.

Plaintiffs have the advantage that Loving already recognized a right to marry. However, one difficulty that the plaintiffs face with this argument, although it didn’t come up as plainly as it might have in the briefs, is that they need some limiting principle. The Supreme Court is not going to be willing to say that the Constitution requires recognition of plural marriages, for example. How can we say that a gay person can marry whoever he wants but a polygamist can’t?

In an earlier Notice & Comment post, the Virginia Solicitor General suggested that the answer was stare decisis: the Supreme Court upheld a polygamy ban in 1879, and the Court doesn’t like to overturn its old decisions. This has some force, but it seems unsatisfying. After all, when developments in the law undermine an existing precedent — and a broad recognition of a fundamental right to marry would do so — then the Court may well overturn an old decision.

The plaintiffs appear to take on the issue of the breadth of the right on page 12 of one of their briefs (among other places). Their answer is that “a fundamental right does not belong exclusively to those who have historically enjoyed it.” It’s not clear that this is true; interracial marriage has much more of a history in the United States than same-sex marriage does. More to the point, though, it still has no limiting principle. How do we know the scope of the right, then, if we unmoor from history?

In contrast to what I have done with many of the other conceptual difficulties that the plaintiffs face in this case, I have no answer to suggest here. I do not know how to use substantive due process to declare a right to marry that includes same-sex marriage but not polygamy. It’s worth noting that the federal government’s brief does not put forward the substantive due process rationale at all.

It’s also worth noting that polygamy is much easier to distinguish from same-sex marriage under the Equal Protection Clause. Being gay is a property of the person, but being polygamous is a property of the relationships. There are people who are able to form romantic relationships only with persons of the same sex (gay people), but there are no people who are able to form romantic relationships only with multiple people at the same time. One can be gay and single, but one can’t be polygamous and single. This goes to the “immutability” prong of the heightened scrutiny analysis discussed in a previous post, so there need not be heightened scrutiny for discrimination against polygamists.

I think this question is very likely to come up at oral argument, so it is worth watching for the plaintiffs’ lawyer’s response. The way she answers, and the way the Justices respond, will give some idea where the Court may land on the substantive due process issue.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.

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Same-sex Marriage Preview III

By Tom Watts*

This is the third in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here, and Part II is here.

In previous posts, I discussed whether same-sex marriage bans classify by sexual orientation. If they do, the next question the Supreme Court must answer is what level of scrutiny a sexual orientation classification should receive. Race classifications receive strict scrutiny, which almost always means the law in question is unconstitutional. Sex classifications receive intermediate scrutiny, which often means the law is unconstitutional. Most other classifications receive only rational basis review, which almost never means the law is unconstitutional, unless the Supreme Court determines that the law was enacted due to “animus” (here, anti-gay bias).

As a technical matter, the Supreme Court has laid out various standards — to pass strict scrutiny, a law must be narrowly tailored to a compelling government interest and must be the least restrictive means of achieving that interest, whereas to pass rational basis review, the law need only be rationally related to a legitimate government interest — but because the Supreme Court has provided only cursory explanations of the general principles of this analysis, it is hard to explain precisely what this means. How do we know whether something is a legitimate (or compelling) government interest? Are there legitimate government interests that are not compelling government interests? The Court’s decisions do not answer these questions clearly. Indeed, one of the most prominent lower-court judges, Judge Posner of the Seventh Circuit, showed some impatience with the sheer conceptual confusion around these standards, and the Supreme Court has the option of trying to clarify, although no one on the Court has indicated a willingness to do so.

It is likely that the marriage bans will be struck down under any legal standard, but if the Supreme Court decides that sexual orientation classifications deserve intermediate scrutiny, that decision could reverberate in LGBT rights cases throughout the country. Any anti-gay law in any state would suddenly be vulnerable to serious challenge. On the other hand, if sexual orientation classifications receive only rational basis review, the Supreme Court is likely to find that the marriage bans were enacted with animus. Consequently, plaintiffs challenging anti-gay laws would have to find evidence of some kind of anti-gay bias in the enactment of the laws in order to get them struck down. It is likely that more laws would survive under this framework than under intermediate scrutiny.

How will the Supreme Court decide the level of scrutiny? There are five factors that sometimes arise, which are phrased in different ways (and not all are always invoked). One factor is a history of discrimination against the group. A second is that the group is obvious and distinct (in legalese, “discrete and insular”): group membership can be determined at sight (discrete) and group members are in contact with each other significantly more than with non-group members (insular). A third is the political powerlessness of the group, whether because it is a demographic minority (e.g., African Americans are, and have always been, much less than half of the population of the United States) or because it is underrepresented in the halls of power (e.g., women). A fourth is often referred to as “immutability,” but because classifications by religion receive strict scrutiny and religion is mutable, it might be more accurate to describe this factor as “fundamental to identity.” A fifth is that the group’s defining traits are generally irrelevant to the group’s ability to participate in and contribute to society.

The opposing briefs argue whether gays and lesbians meet these criteria (for what it’s worth, it seems clear to me that they do), but the broader question is what the test itself consists of. A series of decisions from the late 1960’s to the mid-1970’s recognized new protected classifications that trigger heightened scrutiny (race, sex, and several others), but the Supreme Court appears to have lost its appetite for protecting new groups. It has been decades since the last classification was recognized (arguably, illegitimacy in 1977 or 1978). If the Supreme Court seriously considers protecting sexual orientation, the way different Justices phrase and discuss the factors may be telling. How immutable does the trait have to be? How do we know when a group is politically powerless? There are many questions here that the Supreme Court could answer.

Also, even if the Supreme Court doesn’t recognize sexual orientation discrimination as a type of sex discrimination, as discussed in a previous post, holding that sexual orientation classifications receive intermediate scrutiny would have nearly the same effect, because that is the level of scrutiny that sex classifications receive. The plaintiffs and the federal government have both argued for this position. It is rare for the government to support recognizing a new protected classification, so the government’s position may carry particular weight with the Court. Then again, the federal government made the same argument in Windsor, and the Court refused to bite, so the Court may duck this issue again.

If the Supreme Court does in fact recognize a new protected classification for the first time in decades (and, perhaps, clarify the legal test for protected classifications), its doing so might be the most legally significant aspect of the decision. This is worth watching closely in oral argument.
* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.

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Same-sex Marriage Preview II

By Tom Watts*

This is the second in a series of blog posts previewing some of the conceptual questions that may appear in the same-sex marriage oral arguments on Tuesday. Part I is here.

In the previous post, I discussed the prospect of the Supreme Court deciding that a state same-sex marriage ban was a sexual orientation classification on the face of the law. In this post, I’ll consider the route to concluding that the bans should receive scrutiny as sexual orientation classifications even though they do not explicitly classify by sexual orientation. As I’ll explain, if this topic comes up, it may be one way of determining where the Justices stand on the questions presented in the cases.

Ordinarily, the question that courts ask about a law that doesn’t classify in its text, but that has some kind of disparate impact on one group over another, is whether the law was enacted with a discriminatory purpose. Here, the fact that gays and lesbians are barred from marrying a partner of their choice (but straight people aren’t) isn’t enough unless the Court finds that these laws were enacted with gay people in mind. Of course, most of the specific provisions at issue actually were; after Hawaii appeared on the verge of recognizing same-sex marriage in the 1990’s, there was a wave of statutory enactments (including DOMA) to bar same-sex marriage in most states, and after Massachusetts did recognize same-sex marriage, there was another wave of state constitutional enactments. The legislative history of these enactments is clear enough about the anti-gay intentions of the laws.

But there’s a wrinkle here. The Supreme Court didn’t explicitly take up the question of whether Ohio, Michigan, Kentucky, and Tennessee’s bans were unconstitutional. It took the question, “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?” For the answer to be “Yes,” it seems as though the Court would have to decide that all existing (and perhaps any conceivable) legal barriers to same-sex marriage are unconstitutional. Even if the court strikes down the statutory and constitutional provision barring same-sex marriage, common-law rules that existed before those provisions still barred recognition of same-sex marriage. Did those laws develop with discriminatory purposes? Common-law principles barring same-sex marriage date at least as far back as medieval England, prior to the invention of the concept of sexual orientation in the nineteenth century (perhaps due to an increasing medicalization of the understanding of sexuality). The rules can’t have developed with discriminatory purpose if no one conceived of the group as existing at the time.

There’s a possible way out: the very first time that the Supreme Court found a violation of the Equal Protection Clause in a law that did not include a facial race classification, it did so when the disparate impact was truly egregious. A San Francisco city ordinance forbade the operation of a laundry in a wooden building without a permit. Every permit application from a Chinese person was denied, and nearly every permit application from a white person was granted. There was no need to find intent in the enactment of the law because the administration of the law was so clearly discriminatory; hence, the law was struck down. Here, too, there may be no need to find express homophobia in the common-law development of principles that forbade same-sex marriage, because a same-sex marriage ban has an equally extreme disparate impact: every marriage license application from a gay person is denied, and almost every application from a straight person is granted.

The case is not perfectly analogous: the wooden-laundry law gave officials discretion which they exercised in a discriminatory manner, whereas there is no comparable discretion in the marriage bans. If anything, though, this makes the marriage bans even more unconstitutional. At least San Francisco could have implemented the law in a way that was not discriminatory; there is no such option for the marriage bans.

Is the Supreme Court likely to raise this point? Probably not in the “licenses” question, quoted above, for two reasons. The first reason is the criminal law. Enacting a law that turns out later to have a large disparate impact can’t always be unconstitutional, or else nearly all of the criminal law would be unconstitutional, because nearly all of it has a large disparate impact on African Americans (consider Blewett). There is a way out: the Supreme Court could hold that an unconstitutional disparate impact is one that is absolute (a license or permit is either granted or not) and nearly uniform in its disparity between the two groups (basically every member of one group gets the license or permit, and basically every member the other doesn’t). This would save the criminal law. However, to my knowledge, no one has made this argument.

The second reason this point is unlikely to arise in the “licenses” question is the opinion below. Judge Sutton, who wrote the opinion in the court from which this case is being appealed, raised the point of the common-law nonrecognition of same-sex marriage. However, he did so to argue that the constitutional bans were not motivated by animus, which is clearly wrong. The legislative history of these enactments, beginning in 2004, shows plenty of explicit anti-gay sentiment.

If the Court does start raising questions about the common-law history of marriage, it may be because the Court is interested in the second question it granted: “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” Many states, such as New York, recognize marriages performed out-of-state without determining whether those marriages could have been performed in-state. As a result, a ban on recognizing out-of-state same-sex marriages would be contrary to New York’s usual approach. (New York enacted same-sex marriage legislatively, so this is no longer an issue in New York specifically, but in any other state with a similar approach, this point remains true.)

In contrast, according to Ohio’s brief (pp. 32-33), Ohio recognizes out-of-state marriages that would have been valid or voidable under Ohio law, but not marriages that are void under Ohio law. As a result, not recognizing same-sex marriages in Ohio is consistent with Ohio’s usual approach: such marriages are void under Ohio law anyway, and Ohio doesn’t recognize any out-of-state marriages that are void under Ohio law.

The upshot of all this is that if the Court were to answer (in the first question) that a state does not have to grant marriage licenses, it could answer (in the second question) that those states that have very strong comity principles, as New York does, are required to recognize out-of-state same-sex marriages, but those that take Ohio’s approach are not required to do so.

It will be worth listening closely to the Supreme Court’s oral argument to determine whether the Justices seem interested in any of these issues, because it may give an indication where they are on the two questions.

For more detail on several of the points in this post, see Zachary Robert Herz, The Marrying Kind. The author thanks Zach for his help in developing much of the content in this post. Of course, any errors should be attributed to the author alone.

* Tom Watts is a fourth-year JD/MPP student at HLS and HKS and is the Executive Online Editor of HLPR.