Friday, September 04, 2015

The Social Meaning of Statutes Allowing Clerks to Opt Out of Marriage

by Michael Dorf

In yesterday's brief post announcing my latest Verdict column, I promised to return on Monday with a longer accompaniment. Well, I couldn't stop myself, so I'm posting the follow-up today.

The column raises the possibility that someone like Kim Davis (but probably not Kim Davis herself, given how the litigation has proceeded) might be able to succeed by raising an objection under the state RFRA. As I explain, the SCOTUS approach in Hobby Lobby and Wheaton College indicates that federal courts applying the federal RFRA will take at face value a religious claimant's statement that her religion forbids her from doing just about anything. If the claimant says "I can't sign the form seeking an exemption from providing contraception insurance because signing the form is tantamount to performing an abortion," the Court (in Wheaton College) appears to accept that as a sincere religious belief. The Court treats the substantial burden inquiry as focused on the cost of non-compliance absent an exception, not on the burden of complying with the regulation in the first place.

Now admittedly, Wheaton College was an interim order that purported not to be an expression of a view on the merits. It's possible that if and when these issues return to the Supreme Court, the Justices will be a bit more skeptical of seemingly attenuated claims of this sort. Indeed, I suggested as much in my initial post on Wheaton College last year, and the subsequent lower federal court cases involving non-profits seeking RFRA exceptions beyond what the ACA itself affords tend to view burden claims more skeptically than the Court arguably did in Wheaton College. In what might be described as a mini-symposium on Hobby Lobby, last year Professors Buchanan, Colb, and I wrote multiple entries on the decision. (One of the last in the series is here, with links to the others therein.) Although I criticized some of the criticisms of Hobby Lobby as ill-founded, the ultimate bottom line of these posts and columns was skeptical of the approach of Hobby Lobby. Thus when I say in the latest column that Hobby Lobby and Wheaton College--if followed as an approach to the Kentucky RFRA--could provide considerable support for people like Davis, I am making a descriptive and predictive statement; I do not mean to say that I would welcome that result.

One reason why courts might choose not to follow the approach of Hobby Lobby/Wheaton College in future cases like Davis is the difference between public and private actors. As some of the comments on my short post yesterday indicated, it may be tempting to draw a distinction between government as regulator--where religious exceptions may sometimes be justified--and government as employer--where religious exceptions are harder to administer. My view on that question, for what it is worth, is that a RFRA should not be categorically unavailable to government employees. If the county clerk's office is open on weekends (to accommodate a hardworking local population) and has a general rule that each deputy clerk must work one Saturday and one Sunday each month, then I would think it completely appropriate for the state RFRA to provide exceptions to this policy for people who cannot work on either Saturday or Sunday because of their sabbath observance--even if they took the job of deputy clerk knowing full well that work on their sabbath was a requirement of the job.

Other kinds of exceptions for public servants may be more difficult to grant without upsetting the functioning of the government. To my mind, that means that courts ought to be relatively solicitous of government arguments that there is a compelling interest in the orderly and fair administration of the law. Thus, substantial burdens on religion that might be impermissible in the government-as-regulator context will sometimes be permissible in the government-as-employer context.

If the disadvantage of applying a state RFRA in cases of this sort is the potential disruption of government in many areas, a seemingly better alternative might be presented by what North Carolina and Utah do. North Carolina's law, which was enacted over the governor's veto in June, permits officials ordinarily responsible for issuing marriage licenses to recuse themselves from issuing all such licenses if they have a religious objection to any of the marriages. It also then designates substitute officials to issue licenses. Utah's law, which became effective in May, is roughly to the same effect, permitting a county clerk to designate someone to be available at all times to issue marriage licenses and to solemnize marriages. Thus, in both states, a government official whose duties would otherwise include issuing marriage licenses or solemnizing marriages can opt out on religious grounds from all marriages but crucially: (1) there is no official who assists in opposite-sex but not same-sex marriages; and (2) there is always at least one official available to serve the public with respect to marriage.

Given those two conditions, it would appear that the North Carolina and Utah laws accommodate religious objections of officials without putting the state in the position of treating same-sex marriages as second class in any sense. Win-win, right?

Maybe not. In 2011, I published an article in the Virginia Law Review--Same-Sex Marriage, Second Class Citizenship, and Law's Social Meanings--arguing that laws and government policies that have the social meaning of treating some people as second-class citizens are, ipso facto, unconstitutional. When the states of North Carolina and Utah chose just this one government function--providing government services for marriage--as specially eligible for opt-outs based on religion, they effectively communicated that of all the religious objections that a government official might have to any of his or her duties, this one is especially weighty. Although the laws do not say what the religious objection to performing marriages might be, it is obvious to everyone that the laws were enacted in response to the likelihood of legal same-sex marriage. The effect of the state laws is not to communicate state opposition to same-sex marriage at the point of licensing or solemnization but they do seem to communicate that message at the point of enactment.

Of course, here, as elsewhere, law's social meaning is multivocal. (That's why my article title refers to social meanings in the plural.) North Carolina and Utah could be said to be communicating accommodation for religion, not homophobia--and no doubt that is part of the motivation. But at least relative to the application of a general state RFRA, which provides religious accommodations solely based on individuals' religious practices, the special purpose North Carolina and Utah laws look more like an endorsement of opposition to same-sex marriage.

In my 2011 article, I noted that case law only weakly supports a justiciable freestanding norm against state messages communicating second-class citizenship. Thus I think that the courts will likely uphold the North Carolina and Utah laws if they are challenged and that maybe this is even the right result in a judicial setting. But it does not follow that, from the perspective of a conscientious legislator, the North Carolina/Utah approach is better than the application of a general state RFRA. At least from the perspective of social meaning, it appears to be worse.


Shag from Brookline said...

Query: Should the references to "second-class citizens" and " citizenship" be modified non-citizens who are here legally? In any event, such smell of a caste system.

Michael C. Dorf said...

Shag is right. My article used "second-class citizenship" as a term of art that was not strictly limited to distinctions among citizens as opposed to distinctions among persons. And of course the relevant constitutional provisions--due process and equal protection--protect persons rather than only citizens.

Eric Segall said...

I think the world would be a much better place, and the meaning of the religion clauses better expressed, if we precluded all religious exemptions for government employees. A person who can't work on Saturday for the government because of attending temple should not be preferred over an employee who can't work on Saturday because he doesn't have child care or really really wants to attend ACLU meetings. Any other rule is religious supremacy not religious liberty.

Joe said...

The 1A specifically says free exercise of "religion," not "child care" or "taking care of mom," and does so because the U.S. & now international human rights law has determined religion is particularly important.

So, I think some voluntary exemptions, balancing interests, can make religion somewhat special. This would include let's say a government official who asks for an exemption regarding the Sabbath or the right to longer beard length for religious reasons. The government official does have special duties too, especially when serving the public, so to me is not in equal position as a baker though.

Thus, probably generally with Prof. Dorf here, including concern for special exemptions that in the process favor certain groups. This is a major concern of mine, which to me warrants more attention, when exemptions are singled out for opponents of contraceptives or abortion (or "abortion" since some apply that word to cover non-implanted fertilized eggs for which that word is dubious). There are a myriad of possible religious based beliefs, including those who morally (and I think "religion" should be understood broadly) think abortion is COMPELLED in certain cases. The Hyde Amendment to me is in part an Establishment Clause violation.

Eric Segall said...

There is nothing First Amendment about exemptions as Scalia said in Smith. The government is not supposed to treat religion as "special." It is supposed to treat it no better or worse because it is "religion."

Joe said...

Oregon v. Smith says that exemptions of general applicable laws are not required but allowable. As a matter of discretion, they have been around since the Founding. At least one is found in the Constitution -- affirmation is accepted as a recognition that some religions find swearing problematic. So, conscientious objector status to military service is not guaranteed, but has always seen as in some way warranted, since a religious based opposition over other things, was understood since the Founding to be "special."

The 1A doesn't bar establishment of political, economic or social views. It does specifically, specially, bar laws respecting the establishment of "religion." Likewise, free exercise of a range of things are not specifically referenced (advocacy is, so "ACLU meetings" might be granted), but "of religion" is. Again, specially.

Finally, if we want to name check Scalia, he joined a later opinion that provided "special" protection to religious specifically regarding internal affairs. Not, an open-ended internal affairs rule; he personally didn't even protect a constitutional right of parents upheld by courts. But, "religion"? Yes. Likewise, even in Smith, freedom of belief was protected. Not freedom of all things. Belief in particular. Again, special.

Don Smith said...

If Judge Bunning lifts the contempt order and Davis returns to work, pitches a fit and fires everyone except her little boy for insubordination, and reinstates the "no license" policy (a scenario I view as more likely than not), does that mean we get to watch this circus repeated? If Kentucky's state RFRA is applicable, it looks like the best case result is going to be that Mrs. Davis keeps her job and her salary, and gets paid for sitting in jail while her deputies do the job for her (just so she can't interfere with them), until the Kentucky authorities determine whether or not she's entitled to relief under Kentucky law and work out a reasonable accommodation if appropriate - or she is impeached by the legislature.

Joe said...

ETA: to forestall confusion, I'm aware of the 9A, so unenumerated rights are important too, but "religion" is specifically cited. Also, it's a balancing process, especially when actions are involved. See, e.g., Cantwell v. Connecticut.

Shag from Brookline said...

Regarding special exemptions based upon religious beliefs, perhaps it can be expected that with religion defined broadly more and more special exemptions will be explored by clever attorneys. Too many exemptions may overwhelm the rule. In fact that seems to be the goal regarding same sex marriage.

As to Smith, Mark Tushnet has an interesting post at Balkinization.

David Ricardo said...

One reason for the diversity of posts on this topic is the failure of many people to understand that this is not about protecting an individual's religious freedom. Radical religious groups with the help of conservative Republicans and the judiciary have co-oped laws like RFRA in order to use them to impose their religious beliefs on those who do not share them.

The owner's of Hobby Lobby have the freedom to not use any contraceptive methods they deem violate their religion, what they want is the right to use the power of the employer to deny access to family planning products to as many people as possible. The Kentucky clerk is not suffering from an impingement on her freedom of religion, she is trying to deny same sex marriage to those legally entitled to it. People like Ted Cruz and Mike Huckabee are not running for President, they are running for the office of Chief Ayatollah of the United States.

This is not a legal issue, the legal issues are clear and unambiguous, everyone has to obey the laws of the United States. This is a policy issue, whether or not any group can enact their religious tenets into law.

pvine said...

A state actor/government employee whose purported exercise of a personal constitutional right (to freely exercise their religious beliefs) directly denies another person's constitutional right (to the equal protection of the law) is not equivalent to a state actor/government employee whose exercise of a constitutional right (not to work on the Sabbath) has no impact on the constitutional rights of any other person.

אלון הראל said...

A short comparative comment. In Israel abortions require a decision of a committee based on specified conditions. Once it is approved the abortion is free and is performed in state hospitals. But any doctor can refuse to perform an abortion if it conflicts with her beliefs.

Peter Gerdes said...

Given your argument that the North Carolina and Utah laws send the message that homosexuals are second class citizens why don't you also believe that signalling out religious beliefs for special protection, while excluding non-religious beliefs sends the message that atheists are second class citizens?

Note several important points. While the RFRA may accommodate nonreligious philosophical beliefs these also tend to be rejected by the hard core/vocal atheist community so can't negate the implied second class status.

Secondly, while not a philosophical principle many equally important and meaningful life practices for atheists run afoul of workplace rules in just as substantial a way (the atheist meetup which is the only place an employee feels at home conflicts with his work schedule).

I certainly get the message from RFRA law loud and clear. Hey Atheists, what you care about in your life and especially your deeply held belief that you shouldn't ever be required to grant someone special accommodation because they believe in the supernatural just doesn't matter as much as religion.

Joe said...

Atheists can have "religious" beliefs and the exemptions there tend to apply to "conscientiousness" or "moral" beliefs that do not require a belief in God.

The hard core/vocal atheist community have philosophical beliefs of various types. I'm not sure how that term is being used. What particular "life practices" of "atheists" specifically are we talking about here? A "meetup" is cited. Fine enough. Since atheism is a expression of free exercise as much as silence is an expression of speech, the meetup is on equal standing as a required church meeting.

Thus, e.g., ethical societies - back to the 1950s -- were treated the same for tax break purposes as churches. The "message" heard is somewhat mistaken -- if atheists, based on atheism, have certain requirements, they too should be covered. Likewise, atheists who belong to the Unitarian Church or an atheistic Jew (a sizable class) feels compelled by means of the religion they join to do some ritual, it is protected by RFRA.

The message seems to be such atheists don't really count, since they keep on being ignored by those who say atheists don't have a "religion." Michael Newdow, e.g., the famous atheist rejects that sentiment.

Michael C. Dorf said...

Peter Gerdes: My Virginia Law Review article, linked in the post, draws heavily on the case law and literature discussing the communicative impact of various laws on non-believers.

Joe said...

ETA: Without reading the cited article, to be clear, I realize AS APPLIED religious exemptions can very well be applied selectively & this is a major concern of mine. And, "religious" over something else like "conscientious" is an issue.

OTOH, it is not a compelled thing & numbers-wise, the issue probably affects more actual theists (with minority faiths) often enough than atheists.