Abstract
This chapter places U.S. religious liberty principles in historical context. The 1960s to present day are examined, providing a provocative analysis of religious liberty cases and the ongoing role courts play in this debate, coupled with the legalization of same-sex marriage. A legal analysis is provided for Supreme Court cases.
TopIntroduction
The role of religion in a free society, once a subject of benign and lofty discourse, has become a raging controversy in both the private and public realms. While few Americans challenge the multiple benefits of religion to the individual believer and to society, there are sharply divergent views as to the extent to which the idea of religious liberty immunizes religiously based conduct from sanction when it interferes with health, safety, and welfare, or the provision of goods and services.
Often with the assistance of legislatures and courts, religious entities have adopted a presumptive constitutional right to avoid the law pursuant to federal and state free exercise of religion guarantees, arguing that the First Amendment1, the Due Process Clause2, and separation of powers3 render them immune from some legal requirements and precepts. Opponents have argued that this approach is at odds with American culture and with legal tradition.
On June 26, 2015, the U.S. Supreme Court issued a historic decision that extended the constitutionally protected fundamental right to marry to same-sex couples (Obergefell v. Hodges, 2015). The decision was a culmination of at least a four-decade-long legal war, but it hardly ended the accompanying legal and political battles. Those battles had started well before Obergefell, as states and sometimes municipalities enacted same-sex marriage per se4 or some sort of marriage-like recognition of same-sex couples such as “reciprocal beneficiaries” or “civil unions.” Opposition has come from state and local officials refusing to issue marriage licenses, perform weddings, issue documents listing same-sex spouses, etc. (Wetzstein, 2015) and from private businesses providing public accommodations such as wedding venues, photographers, and florists.
The court’s decision triggered a new brand of anti-same-sex marriage activism. Opponents of same-sex marriage galvanized political support and successfully lobbied legislators to minimize or block the aftershock of an anticipated decision favoring same-sex marriage rights. These legislative responses took various forms. At the state level, state religious freedom restoration acts (RFRAs) took center stage (National Conference of State Legislatures, 2015). Although many states had existing RFRA statutes, other states adopted laws far more protective of religious freedom than the federal RFRA.
The backlash to the Obergefell decision is underway. Having lost in the courts, the opponents of same-sex marriage have altered their battle cry. Invoking religious freedom rather than defending their right to discriminate, they now claim to be the victims of discrimination. This chapter focuses on the tension between those advocating for LGBT-inclusive laws and those seeking protection from what they characterize as religious discrimination under state mini-RFRAs to resist the trend toward LGBT equal rights. It provides an analysis of key Supreme Court cases and examines how those cases intersect with marriage equality.
Key Terms in this Chapter
Sherbert Test: A three-prong test for courts to use in determining whether the government has violated an individual’s constitutionally protected right to the free exercise of religion. The first prong investigates whether government has burdened the individual's free exercise of religion. If government confronts an individual with a choice that pressures the individual to forego a religious practice, whether by imposing a penalty or withholding a benefit, then the government has burdened the individual's free exercise of religion. However, under this test not all burdens placed on religious exercise are constitutionally prohibited. If the first prong is passed, the government may still constitutionally impose the burden on the individual's free exercise, if the government can show: it possesses some compelling state interest that justifies the infringement (the compelling interest prong); and no alternative form of regulation can avoid the infringement and still achieve the state's end (the narrow-tailoring prong).
Equal Protection Clause: Constitutional guarantee embodied in the Fourteenth Amendment to the Constitution.
Substantive Due Process: Requires that all legislation further a legitimate governmental objective.
Procedural Due Process: Guarantees procedural fairness where the government would deprive someone of property or liberty.
Rational Basis: A method of constitutional analysis under the equal protection clause is used to determine whether a challenged law has a legitimate governmental objective. It is used when constitutional objection is raised regarding a law’s reasonableness and not when constitutional rights violations are alleged.
Strict Scrutiny: Involves determining whether the law violates the equal protection clause unless the state can show it is necessary to further a compelling government interest and is accomplished by the least intrusive means.
Fourteenth Amendment: Guarantees citizens of the United States due process and equal protection of the laws. The due process clause has been the vehicle for applying nearly all the guarantees in the first 10 amendments to state action.