Religion clauses

  • May 6, 2015
    Guest Post

    by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal. Ms. Taylor is a member of the Advisory Board the Chicago Lawyer Chapter.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

    A victory in Obergefell would be transformative. Our 

    struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

    However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

    As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).

  • April 28, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    The Supreme Court’s forthcoming decision in Obergefell v. Hodges brings the issue of marriage equality once again to a place of prominence in the national conversation.  Unsurprisingly, the intensity of opposition from those with religious convictions against “changing” the definition of marriage to include gay and lesbian couples has only grown, fueled by the prospect that the Court may extend its decision in United States v. Windsor and hold that the Constitution requires all 50 states to treat same-sex couples equally.

    The gathering storm is easy to see.  A federal court ruling striking down Alabama’s ban on marriage recognition was met with a furious, theologically-driven backlash led by state supreme court Chief Justice Roy Moore, who explained his opposition to marriage equality by saying, “It takes away the very definition ordained of God.  A different definition destroys the definition of marriage.”  On the legislative front, Indiana passed a “Religious Freedom Restoration Act” (RFRA) at the urging of anti-gay religious activists, carving out protection for those with religious objections aghast at even the potential they might be compelled by anti-discrimination laws to participate in marriage ceremonies.  Assuming that the pure rejectionist camp is unsuccessful in trying to engage in 1950s-style “massive resistance” to a pro-equality ruling in Obergefell, the real issue comes down to what, if any, sort of religious exemptions should be considered for those who do not wish to participate in the weddings of same-sex couples.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • February 16, 2015
    Guest Post

    by Harvey Fiser, Associate Professor of Business Law at Millsaps College

    All eyes are once again focused on our southern states and their leaders for again defying federal court orders.  This time, as last, is about violating the constitutional rights of its citizens.  The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore.  Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage. 

    On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect.  The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t. 

    Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order.  Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior.  The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again.  Surely this satisfied Moore’s Sunday declaration.  Except, it didn’t.

  • January 22, 2015
    BookTalk
    Madison's Music: On Reading the First Amendment
    By: 
    Burt Neuborne

    by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

    We honor James Madison as the driving force behind the Bill of Rights.  We recognize him as Thomas Jefferson’s indispensable political lieutenant.  We applaud him as the nation’s fourth president.  But we will never do Madison full justice until we revere him as a great poet.

    Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

    Today, we hear only broken fragments of Madison’s music.  Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

    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.