First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Monday, June 29, 2015

The First Amendment and the Gay Marriage Decision

The Supreme Court's decision in Obergefell v. Hodges, recognizing marriage equality for same-sex couples, is an enormously important milestone on the road to full equality for the LGBTQ community.  Its detractors vow to resist the ruling, claiming in particular that vendors should be able to refuse to provide food, flowers, etc. at gay weddings, and that protesting officiants should be able to opt out of performing such marriages.

These challenges find little, if any, support in the First Amendment.  Forcing a rabbi or priest or other member of the cloth who opposes gay marriage for religious reasons to conduct a same-sex wedding would directly intrude on religion.  But, having a disagreeable county clerk officiate such a wedding would not violate the First Amendment. 

The continuing battle will be whether religion can serve as a justification for discrimination based on sexual orientation and gender identity under laws other than the First Amendment.  It cannot and should not, but there is more legal work to be done.

The First Amendment Is No Defense To A General Law

The First Amendment's Free Exercise Clause states that Congress (or, by extension, local and state governments) shall not prohibit the free exercise of religion.  The Free Exercise Clause does not, however, exempt people from following neutral laws of general applicability.  That means:  laws meant to apply to everyone do not give anyone a free pass simply because religion is invoked.

The rule comes from Employment Division v. Smith, a case where the Supreme Court held that Native Americans could not use peyote (a Schedule I controlled substance -- i.e., an illegal drug), even for religious rituals, and also claim unemployment benefits.  The Court ruled that, because no one was supposed to use peyote, and the individuals at issue were legitimately discharged from their jobs for using peyote (for religious reasons), the State could fairly deny them unemployment compensation.  Who wrote the decision for the Court in that landmark case?  Justice Scalia.

Following the logic in Justice Scalia's opinion, jurisdictions that disallow discrimination based on sexual orientation and/or gender identity (including in federal government contracting) cannot rely on the First Amendment's religious freedom guarantee as a defense to a discrimination claim.  For example, the New Mexico Supreme Court recently held, over First Amendment objections, that a photographer could not refuse to photograph a gay wedding because that State has a public accommodation law, a neutral law of general applicability, that forbids discrimination based on sexual orientation.

But not all jurisdictions in America bar discrimination based on sexual orientation.  Yesterday, the Los Angeles Times told the story of Katrina Martir, a teacher in Kentucky who was fired for revealing that she is lesbian, with no legal recourse because neither her county nor her State barred such discrimination.  In such unfortunate cases, the party discriminating needs no First Amendment "defense" because the law did not forbid the discrimination in the first instance.

Now, however, under Obergefell, it is not legal for the government to deny marriage licenses to same-sex couples anywhere in the U.S.  Thus, a pastor or other religious figure (i.e., not a government agent) could legitimately raise deeply-held religious objections to performing a gay wedding.  But, a county clerk or magistrate judge no longer has a such an argument.

Ken Paxton, the Attorney General of Texas defiantly vowed to resist Obergefell by telling government employees in Texas that they have a First Amendment right not to officiate same-sex marriages.  The Attorney General's edict fundamentally misunderstands the law.  Government employees who officiate marriage ceremonies are not members of the clergy nor are they random citizens entitled to exercise their religious rights.  They are on the job.  Their job includes following the law, and it is disgraceful for the highest-ranking law enforcement official in their state to instruct them otherwise.  A county clerk who officiates marriages is acting as the face of the government, not a religion and not their own personal perspective.  The First Amendment does not permit the government to refuse marriage licenses based on religion.  That would squarely violate another clause in the First Amendment, which forbids the establishment of religion. 

Religious Freedom Restoration Act 

In response to the Supreme Court's decision in Employment Division v. Smith, Congress (apparently very concerned about Native Americans' right to use peyote for religious reasons) passed the Religious Freedom Restoration Act, giving a statutory right to invoke religious freedom in response to otherwise generally applicable federal laws.  RFRA -- not the Free Exercise Clause of the First Amendment -- has later been used as a justification for allowing people, and even corporations, to avoid laws of general applicability.

The most recent, famous application of RFRA was in Burwell v. Hobby Lobby, when the Supreme Court, in a decision side-stepping the First Amendment, ruled that a closely-held (family owned) corporation with religious objections did not need to provide employees with insurance coverage to obtain contraceptive drugs despite Obamacare regulations.

In the Burwell v. Hobby Lobby decision, the Court addressed an important issue: would RFRA allow businesses to invoke religion to discriminate based on race?  Of course not, the Court wrote, in an opinion authored by Justice Alito and joined by Justice Scalia (author of Employment Division v. Smith) and Justice Kennedy (author of Obergefell v. Hodges): "Our decision today provides no such shield [against racial discrimination].  The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."  This rule barring racial discrimination, even for religious reasons, follows on decades of cases and laws ensuring that people of all races are permitted to participate in society equally.

As sweeping and monumental as the Obergefell decision is, it does not clearly resolve a lingering issue about whether the government has a compelling interest in stopping sexual orientation discrimination the way it does with racial discrimination.

But, it is quite clear from Obergefell, that, in the context of weddings at least, same-sex couples have equal rights to opposite-sex couples to government recognition, and that the First Amendment cannot be used as a justification to treat same-sex couples differently.  The Court explained that laws and other government actions banning same-sex marriage "abridge central precepts of equality" and are unconstitutional under the Equal Protection Clause of the 14th Amendment.  Apparently the Texas Attorney General missed that page in the opinion.

The Obergefell decision expressly acknowledges -- as it must -- that the First Amendment still protects vocal opposition to gay marriage; "The Constitution, however, does not permit the State to bar same sex couples from marriage on the same terms as accorded to couples of the opposite sex."  The decision also acknowledges that one of the bases for recognizing marriage as a fundamental right comes from the right of association, which is grounded in the First Amendment.

"It's certainly going to be an issue"

During oral argument in the Obergefell case, Justice Alito noted that a religious school lost its tax exempt status for opposing interracial marriage and asked if the same thing could happen to a religious school that opposed same-sex marriage.  Solicitor General Donald Verrilli (who was arguing in favor of gay marriage for the federal government) candidly responded:  "... It's certainly going to be an issue."  It is an issue because of the inconsistency in the law, nationwide, in disallowing discrimination based on sexual orientation.  As I noted, many states do not outlaw discrimination based on sexual orientation, and many states have their own versions of RFRA.

The So-Called "First Amendment Defense Act"

One week before the Court issued its decision in Obergefell Senator Mike Lee (R-UT) and Representative Paul Labrador (R-ID) introduced the "First Amendment Defense Act."  The law is meant to stop "discrimination" against people who believe (or act on their belief, whether religious or "moral") that marriage is limited to one man and one woman. In other words, the law basically says:  "Don't discriminate against people who discriminate." The proposed law would be unconstitutional.

First, this proposed law assumes that the First Amendment itself is no defense.  If this is really what the First Amendment meant, we wouldn't need a new law to "defend" it because the First Amendment is part of the Constitution, the supreme law of the land.   

Second, this proposed law would enshrine and essentially endorse discrimination against same-sex couples, contrary to the holding in Obergefell.  Imagine if it read:  the federal government will not deny taxpayer-funded government contracts or grants to anyone who, for religious or other "moral" reasons, acts on their opposition to interracial marriage.  Wrong.  Bad.  Now, replace the word "interracial" with "same-sex".  The proposed law simply cannot be squared with what the Court just held in Obergefell -- that the due process clause of the 14th Amendment to the Constitution protects "personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."  A contrary system would consign same-sex couples "to an instability many opposite-sex couples would find intolerable in their own lives."

What if a person who believes firmly in supporting gay marriage for religious or moral reasons refuses to help fund a government contract or grant award to a person who disagrees with gay marriage?  Under the proposed law, there would be no support in the law for the pro-gay marriage religious or moral conviction. Such a viewpoint-based law, like all viewpoint-based laws, would be presumptively unconstitutional, and could not survive First Amendment scrutiny.  Ironic, isn't it?  The "First Amendment Defense Act" would violate the First Amendment.

Final Thoughts

Obergefell was decided correctly.  I look forward to the day when the law will not countenance discrimination based on sexual orientation or gender identity in any context.  We are not there yet.

As strongly as I believe in full equality, I do have a problem with forcing members of the clergy to perform marriage ceremonies antithetical to their strongly-held beliefs.  That is a line I think is fairly drawn in favor of religion -- no matter how unfortunate I perceive those religious views to be.   I have no problem, however, with telling county clerks -- who are the face of the governments that employ them -- to perform gay marriages even if their religious beliefs (or their moronic Attorneys General) dictate otherwise.

In order to fully realize the equal dignity recognized in Obergefell, we need more laws making clear that discrimination against those who are LGBTQ has no place in our society or under our Constitution.


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