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The Problem With Religious Exemptions to Gay Rights

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The federal judge who released Kim Davis, the Rowan County, Kentucky, clerk, from jail wasn't following the usual protocol: He was trying to effect a compromise on gay marriage. Ordinarily, someone jailed for disobeying a direct judicial order wouldn’t be freed unless she agreed to comply with it. Davis didn’t.

Instead District Judge David Bunning said it was good enough that her office was issuing marriage licenses to same-sex couples through her deputies -- and over her signature. For her part, Davis, who says administering the licenses would violate her Christian faith, now says that all she wants is an exemption (perhaps granted by the Kentucky governor) that would allow her personally not to endorse any marriage licenses for gay couples. She hasn’t said that she wants to block her deputies from issuing the licenses. If she does, she'll find herself back in jail.

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What should we make of the closely related -- though not identical -- compromises sought by the federal judge and by the county clerk? Should we be satisfied in the long run if gay couples are able in practice to marry as easily as straight couples, but certain public officials recuse themselves from issuing the licenses or performing the ceremonies on grounds of religious objection?

The question isn't hypothetical. In June, even before the U.S. Supreme Court announced the fundamental right to gay marriage, North Carolina’s legislature, over a veto by the state's governor, passed legislation that allows an assistant or deputy register of deeds to opt out of issuing marriage licenses “based upon any sincerely held religious objection.” For good measure, the law also allows North Carolina magistrates to refuse to perform any wedding for the same reasons.

The North Carolina law says that marriage licenses will be issued and marriages performed for gay couples even if a particular clerk won't issue a license or a magistrate won’t perform the wedding. In practice, of course, the law could be implemented to make it logistically harder for gay couples to marry. If so, it would certainly violate the Supreme Court's ruling, which relied both on the fundamental right to marry and the equal protection of laws.

But let's assume charitably that the law operates as written, and the recusals don't make it harder for gay couples to marry. This is almost exactly the compromise that Davis says she’s seeking. It's pretty close to what the federal judge who jailed and then freed Davis apparently thinks is permissible.

Is this emergent compromise constitutional?

I suggested back in June that there might well be a serious constitutional problem with the compromise: It arguably violates the establishment clause. I won't repeat the technical aspect of the argument here, but it turns on a more general principle that's worth stating clearly as the issue spreads beyond North Carolina.

The general principle is this: Not all religious accommodations are automatically constitutional. The First Amendment protects the free exercise of religion, and Congress and state legislatures are certainly empowered to go beyond the protection afforded by the Constitution and protect religious liberty further. Yet the very same provision that protects free exercise also prohibits the establishment of religion.

Sometimes, protecting religion can turn into establishing it. There are easy examples: Imagine the Kentucky legislature said that ministers of the Gospel were facing discrimination and that, in order to protect the free exercise of religion, it was going to start paying their salaries. That would clearly be an unconstitutional establishment of religion.

Now imagine a law that exempts all clergy -- but only clergy -- from paying income tax in Kentucky. To make it harder, imagine that some clergy have a religious objection to paying taxes on the salaries they get from their congregants. It’s still unconstitutional -- or so I would argue.

Notice that every rule that exempts religious believers, but only religious believers, from some law has the effect of favoring religion over nonreligion. From here you might reach the conclusion that all laws granting religious exemptions are unconstitutional. But that’s not the case, at least according to Supreme Court doctrine.

So where to draw the line? The court’s answer, in the 1985 case Thornton v. Caldor, has been to require that a religious exemption law contain a balancing test that weighs the interests of the believer against those of the state. The federal Religious Freedom Restoration Act contains such a balancing test, as do the numerous state RFRAs that imitate it.

The underlying rationale for the balancing test is that a law purely exempting religion without regard to the state's interests is, in practice, a law favoring religion -- and thus a law establishing it. If, however, the law balances the interests of religious believers against those of the government, then it isn’t merely favoring or establishing religion. It's genuinely protecting religious liberty.

The North Carolina law contains no balancing test -- so in my view it’s unconstitutional under the Thornton precedent.

But what if it did? What if, say, Kentucky, enacted a similar compromise law that included a balance between the county clerk's interest in religious liberty and the state’s interest in equality and due process?

In my view, such a law might conceivably be constitutional. But applying that balancing test probably wouldn't allow the clerk to recuse herself. The state’s interest in treating all its residents equally and in guaranteeing constitutional rights would seem to outweigh the individual public official’s interest in keeping her post without violating her religious scruples.

Would we really want a world where, for example, you call the police and they ask you if you’re Catholic or Protestant or Jewish before they decide which officer they will send out to help you? Knowing that some officer is coming wouldn't be sufficient to outweigh the harm to our interest in being treated equally by the state when it comes to vindicating our rights.

But I have to acknowledge that some might well see the balance differently. In any case, this issue won't go away so long as compromises like the one involving Kim Davis or the one in North Carolina are still being considered.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net