By Marcia Coyle, Supreme Court Brief

Note: We are spotlighting interesting amicus briefs in the same-sex marriage cases from time to time. All amicus briefs can be found on the court’s website: www.supremecourt.gov

None of the same sex marriage cases the U.S. Supreme Court will decide this term squarely raises religious liberty as an issue. But many groups involved in the litigation see that as the elephant behind the courtroom’s red velvet curtain.

Nearly 80 amicus briefs supporting marriage equality have been filed with the justices. More than half a dozen of them either counter opponents’ claims that a right to marriage for same-sex couples would infringe the religious rights of others, or urge the high court to be explicit that the rights of both factions can be protected.

“Our support for marriage equality is genuine, but it’s also very important that people who support it also speak out for religious liberty,” said Douglas Laycock (left), a religion scholar of the University of Virginia School of Law. Religious liberty is “often dismissed as obstructionism” in the same-sex marriage debate, said Laycock, who filed a brief on behalf of himself and four other religion scholars.

Laycock expects state officials and other defenders of marriage bans to tell the high court that religious liberty interests are reason to reject outright same-sex marriage.

That expectation is well founded—one of the first amicus briefs supporting the marriage bans at issue in the high court was filed on March 17 by Alabama Gov. Robert Bentley, who told the justices that marriage equality would impose costs on states and their citizens, “especially the loss of religious liberty and other freedoms to distinguish between marriage and non-marital relations.”

“I would hope the justices reject that argument and say religious liberty is not a reason to reject same-sex marriage. But it should be protected,” Laycock said. “I don’t think they can say much more than that, but it would be a terrific signal from our perspective if they say that much.”

Besides the Laycock brief, amicus briefs raising the religious liberty issue came from Americans United for Separation of Church and State, the Seventh-Day Adventists, the Anti-Defamation League, Friends Meeting, Episcopal Church bishops, the California Council of Churches and related groups. They differ in tone and substance but all defend religious liberty.

Americans United, for example, plays down any conflict between religious liberty and a right to same-sex marriage. Such conflicts are “chimerical,” said the brief’s author, Charles Rothfeld of Mayer Brown. “And to the extent that such conflicts are real, they can be fully addressed by existing doctrines and mechanisms for reconciling religious practice with public obligations.”

Still, “novel” issues will arise, Laycock said. “Marriage recognition will increase the conflicts’ frequency and religious intensity. Once same-sex couples are civilly married, the existing discrimination laws suddenly apply to a relationship of profound religious significance, demanding that religious organizations and believers recognize a relationship that they believe is both inherently religious and religiously invalid.”

He asks, for example: “Must pastors, priests and rabbis provide religious marriage counseling to same-sex couples? Must religious colleges provide married student housing to same-sex couples? Must churches and synagogues employ spouses in same-sex marriages, even though such employees would be persistently and publicly flouting the religious teachings they would be hired to promote? Must religious social-service agencies place children for adoption with same-sex couples? Already, Catholic Charities in Illinois, Massachusetts and the District of Columbia has closed its adoption units because of this issue.”

Americans United and Laycock do agree that many tools are available—court doctrines, state constitutions and laws—to protect religious liberty in these situations. “This court should make clear that these tools remain available in a world with same-sex marriage,” Laycock wrote.

The Church of the Seventh-Day Adventists, represented by Eric Rassbach of the Becket Fund for Religious Liberty, takes no position on same-sex marriage. Its brief focuses on how the court, in resolving the question, can best protect religious liberty.

“I think the rationale for whatever ruling they reach could have an impact on statutory accommodations [for religious objectors],” Russbach said. “Religious accommodations exist in a variety of contexts that everyone knows. For example, Quakers don’t have to serve in the military. We tell the justices, ‘Don’t accidentally overrule those.’ ”

The justices might consider a number of theories under the equal-protection clause in ruling on same-sex marriage, he said. “We’re saying, ‘Some of those paths you shouldn’t go down because of their effect on this area of the law, such as the animus argument.’ ”

If the court rules that marriage bans are based in animus or invidious discrimination, Russbach said, many existing and future religious accommodations would be threatened.

Americans United, he said, wants to get same-sex marriages “on the books” and deal with religious liberty issues later. But the basis for any ruling “could throw out religious accommodations throughout the country,” he said. “That’s a significant difference.”

Not everyone, however, is sanguine about the tools available to protect religious liberty. During the past year, 20 states have moved on legislation using religion as a reason to discriminate against LGBT individuals and couples, said Rose Saxe of the ACLU’s Lesbian, Gay, Bisexual, Transgender and HIV Project.

“There’s been a tremendous push to allow individuals and institutions to refuse to respect LGBT people, to treat lawful marriages as invalid, to refuse services in restaurants and inns,” she said. State religious freedom restoration acts (RFRA), sometimes modeled on the federal law, are pending in a number of states, she added, and have a disproportionate impact on LGBT persons “and in some states are explicitly against them.”

But Laycock, who has studied many of those state laws, said, “Most state RFRA cases have nothing to do with any of the culture-war issues. It is also the case that nobody has ever won an exemption from discrimination laws under a state RFRA. Even the cases of very small vendors in the wedding industry, which I find pretty sympathetic, have so far been losers. So all the opposition to these bills, some of it nearly hysterical, is not based on any actual experience.”

For now, he and the other amicus authors hope religious liberty will be a positive part of the justices’ resolution of the constitutional questions in the marriage cases.

“The key question is, can we get [Justice Anthony] Kennedy or some of the liberal justices to think about it,” Laycock said.

IMAGES:

Demonstrators in support of same-sex marriage, outside the U.S. Supreme Court on the day of arguments in the case challenging California’s Prop 8 legislation. March 26, 2013.

Diego M. Radzinschi

For more on this story go to: http://www.nationallawjournal.com/supremecourtbrief/id=1202720970405/Religion-and-Marriage-The-Elephant-in-the-Courtroom#ixzz3Upc2Wz5P