Free Exercise and Same Sex Marriage: A Response to Mike Dorf

Mike Dorf  has a characteristically elegant column (here) arguing in favor of two conclusions with which I disagree: first, religious objections to same sex marriage  are so tainted with prejudice that they should not be entertained, or, at least,  are substantively less worthy than those presented by other religions in most cases; second, even if those conclusions are false, a Town Clerk with religious objections to recording a marriage may not constitutionally delegate the job of recording the marriage to a deputy clerk even if the deputy clerk is willing to do so and the recording meets legal requirements. In Dorf’s view, a recording of the marriage by a town clerk is too remote from participation in the marriage to justify conscientious objection. Dorf’s discussion is based on an actual incident involving the actions of Rose Belforti, the Town Clerk in Ledyard, New York who delegated the task of recording a same sex marriage to a deputy clerk. Apparently, the married couple involved is contemplating a law suit.

Dorf argues that religious objections to same sex marriage are offensive. They are rooted in prejudice and they stigmatize vulnerable minorities. No doubt the religious conclusions of millions opposed to same sex marriage are fueled by prejudice.  But passages in the Bible particularly from St. Paul I think would compel fundamentalist readers to the view that same sex relations are condemned. Those Christians who reject the conclusion suggested by these passages either engage in a strained reading of Paul, or they reject fundamentalism and argue that Paul’s condemnation was a reflection of his culture and not the message of God, or they deny the claim that the Bible is divinely inspired, but treat it as an important reflection of what important  Jewish writers have believed.

Dorf suggests that because different religious believers reach different conclusions reaching the same text, they have made a choice to reach that conclusion and from that perspective those who take the literal reading of Paul do so out of prejudice. Of course, results-oriented hermeneutics is not uncommon, but it seems to me that the commitment to fundamentalism is based on an impoverished conception of interpretation – not in prejudice. Even if the source of a religious belief is prejudice, it is still a religious belief within the meaning of the Constitution and, in my view, it should be. I think Dorf would agree (though he could be read the other way); his apparent argument is that the existence of prejudice diminishes the force of the constitutional claim. I do not think government should be making such assessments. There are Establishment Clause concerns implicated in officially deciding that some religions are better than others.

Dorf also argues that actions based on religious objections to same sex marriage are offensive because they stigmatize a vulnerable minority. I agree. But this does not make the religious view any less religious. (Even if prejudice were the source of a Minister’s views and recognizing that the views stigmatize a vulnerable minority, surely Dorf would not say that a minister could be forced to marry a same sex couple). What Dorf’s point calls for is the weighing of the burden on free exercise against the harm to those who want a same sex marriage recorded by the Town Clerk. Although I would hold for the same sex couple against a Town Clerk if the Clerk were the sole person authorized to record the marriage, in my view, forcing someone to engage in an act that is religiously forbidden to her (when an alternative to doing so is available) is a more serious intrusion than the insult delivered to the same sex couple. I understand that there is an accompanying equality concern. If New York State adopted a two tier system for recording marriages (the Town Clerk for heterosexual marriages; the Deputy Clerk for same sex marriages), serious constitutional questions should arise. But the system in place in the Belforti incident is not one in which government endorses a distinction between marriages based on sexual orientation. The government is accommodating a religious view, not endorsing it. This sharply mitigates the equality concern. Although our society is divided about same sex marriage, we may already have arrived at the day in which the extremist Town Clerk in Ledyard is part of a sizeable, but diminishing minority. And, if we are not there yet, we are on our way.

Comments regarding Dorf’s participation arguments later

 

Comments

[Susan Stabile]

Steve: If the person to whom the task is delegated is available to the same extent as the clerk, I agree with you. What was unclear to me from the original NYT article (which spoke of having to make an appointment with the deputy) I read on this was whether this is the case. That is, if a heterosexual couple could walk in any time the office is open and have the Clerk sign the certificate but a same-sex couple had to make an appointment that might require them to wait a couple of weeks, that seems to me a problem. I don't know factually that this is the case, but I do think it matters how it works out in practice.

[Steve Shiffrin]

Susan
Thanks for commenting. I agree that a differential burden weakens the free exercise claim. I do not think any differential burden should be sufficient to override a free exercise claim. And I am not sure a two week discrepancy would be enough for me, but it might be.
Steve

[Jimbino]

The whole conservative position makes no sense to me. Consider this thought experiment:

The State sets up two marriage tracks: Straight and Gay, both conferring identical rights. Only the former is considered biblical by many. So they don't consider the others married at all.

OK, so what? Who cares what the christianists think of other peoples' relationships? Most evangelicals do not consider Mormons to be christian, and many don't consider Roman Catholics to be christian either. So what?

If one of these bigots is in the Army and filling out a form for what type of headstone to put on the soldier's grave, will he refuse to put in "Christian" at a Mormon's insistence or at a Roman Catholic's insistence? Or even a Jew's insistence?

This is all a tempest in a teapot. The real conflict is over the 1000+ special privileges accorded married folks in taxes, inheritance, visitation, immigration and other areas--privileges historically denied to gay couples and still denied to singles and cohabiting straights.

I say: let's rid ourselves of the right of the government to use not only the distinctions, but the very words referring to male/female, gay/straight and single/married from every statute in the country, just as no statute now maintains white/black/brown/red distinctions or the words denoting race of a person.

That would solve all these problems in one swell foop, putting myriad judges, administrators and lawyers out of work but letting the christianist priests go on promoting their pro-marriage and pronatalist bigotry.

[Felapton]

Only a gay man could think ridding the government of the right to use the distinctions male/female, gay/straight, single/married. would "solve all these problems."

It is not the government that discriminates, but Nature. Women get pregnant. Pregnancy puts a person in a genuinely unique position of vulnerability, physically, socially and financially. Nothing that happens to men is even remotely comparable to pregnancy. Women are and always have been a solid majority of the poor and the destitute because they get pregnant.

Marriage is not a especially good vehicle for alleviating the disadvantages of pregnancy, but it's all there is. Those 1000+ "special privileges" are millions of women's lifeline, the tiny shred of a remnant of a safety net that keeps their lives bearable. That's what "marriage" is to straight women.

For gay men, "marriage" is a chance to preen in front of cameras and get their pictures in the newspaper of record wearing wedding gowns. Just before they run off and whine and snivel about what a "vulnerable minority" they are.

[Jimbino]

Felapton:

A man has conceived and delivered in very recent history. Furthermore, laws could easily cover all the events of pregnancy without ever mentioning the sex, age, race, marital status, height or weight of the person involved.

Get it?