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