Tuesday’s marriage arguments at the U.S. Supreme Court hinted at coming battles over the right of religious business owners or organizations to discriminate against gays and lesbians in contexts outside of marriage itself. Indeed, several briefs to the high court—and a few justices at oral argument—suggested that if same-sex people have a constitutional right to get married, it will be more difficult for individuals and businesses to use religion as an excuse to discriminate against same-sex people in other settings.
Among various would-be discriminators, there are commercial bakers, florists, t-shirt makers (and now even pizzerias and mechanics!) who wish to refuse service to same-sex couples (or to ceremonies involving people of the same sex). There are adoption agencies who refuse to place children with same-sex couples. Others worry not about any legal consequences, but that more people will disapprove of anti-gay discrimination if the law requires marriage equality.
These arguments come in different stripes. Some amici (such as Professor Douglas Laycock) argue that the court should recognize a constitutional right to marriage equality, but that the court should pair that right with religious exemptions to laws prohibiting discrimination against same-sex couples. Others (such as the Becket Fund for Religious Liberty, a Religious Right group) purport to take no position on marriage equality but, reading the writing on the wall, urge the court to require exemptions from antidiscrimination law if the court does rule in favor of marriage equality. Still others (including the U.S. Conference of Catholic Bishops, and certain other religious organizations and individuals) argue that the court should refuse to recognize a constitutional right to marriage equality because marriage equality will make it more difficult to discriminate elsewhere.
Some, like the Becket Fund, even argue that “giving recognition to civil same-sex marriage without providing religious accommodations demonstrates animus towards religious people and institutions.” In other words, the discriminators are being discriminated against if they are no longer allowed to discriminate.
On the one hand, it’s understandable that those seeking religious exemptions from antidiscrimination law would use the Supreme Court marriage cases to try and get them. That said, their concerns are misplaced, for several reasons.
First, there is no risk that either the Constitution or civil-rights statutes would force clergy or churches to perform or host wedding ceremonies that violate their religious beliefs. In response to Justice Antonin Scalia’s suggestion to the contrary, “Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination.” Everyone agrees that the Free Exercise Clause prevents the government from forcing ministers to perform certain types of wedding ceremonies.
Second, more and more places will prohibit discrimination on the basis of sexual orientation whether or not same-sex couples have the right to get married. In response to questioning at oral argument, U.S. Solicitor General Donald Verrilli (who joined the plaintiffs in arguing that the Constitution requires marriage equality) pointed out that concerns about religious objections to discrimination law arise even in non-marital ceremonies. He cited a New Mexico case in which a commercial photographer refused to provide service to a same-sex couple’s commitment ceremony—that is, not a wedding. The New Mexico Supreme Court refused to exempt the commercial photographer from anti-discrimination law, and the U.S. Supreme Court declined to hear the case.
This case from New Mexico highlights that attempts to use religion to justify discrimination can and will arise whether or not same-sex couples can get married. As we explained in AU’s friend-of-the-court brief, “[t]he Court’s recognition of a right to marry will not automatically extend or alter any protections for same-sex couples currently available under federal or state antidiscrimination laws.”
Finally, even if marriage equality would increase the number or strength of anti-discrimination protections, it takes real chutzpah to argue that same-sex couples should forfeit one set of civil rights in exchange for another. Gays and lesbians have experienced a brutal history of discrimination: until recently, they could not serve in the military (let alone serve openly) or, in many places, adopt children.
Until 2003, states could and did criminalize sexual activity between same-sex people. In many states, it is still legal to discriminate against gays and lesbians in hiring and public accommodations. It would be an odd interpretation of the Constitution to suggest that gays and lesbians must be prohibited from marrying in order to ensure that they can be discriminated against more easily in other settings. Consider an analogy: if for hundreds of years Christians had been barred from attending church or reading the Bible, nobody would argue that they should gain those free exercise rights only if they were willing to be discriminated against in other contexts.
There’s also another parallel with bans on interracial marriage. Many people held strong religious objections to marriage between two members of different races when the Supreme Court decided, in Loving v. Virginia, that miscegenation bans violated the Equal Protection Clause. But there was no quid pro quo: the court didn’t say that Mildred and Richard Loving could marry only if bakers and florists gained the right to refuse to provide service for the Loving wedding. On the contrary, just a few years later, the Supreme Court ruled unanimously that a free exercise justification for maintaining segregated lunch counters was “patently frivolous.”
Gays and lesbians deserve to be treated as full citizens. Like other citizens, they are entitled to the dignity of marriage. And like other citizens, they shouldn’t have to barter some of their civil rights in exchange for others.
Greg Lipper is senior litigation counsel at Americans United. Follow him on Twitter at @theglipper.