Friday, September 04, 2015

The Social Meaning of Statutes Allowing Clerks to Opt Out of Marriage

by Michael Dorf

In yesterday's brief post announcing my latest Verdict column, I promised to return on Monday with a longer accompaniment. Well, I couldn't stop myself, so I'm posting the follow-up today.

The column raises the possibility that someone like Kim Davis (but probably not Kim Davis herself, given how the litigation has proceeded) might be able to succeed by raising an objection under the state RFRA. As I explain, the SCOTUS approach in Hobby Lobby and Wheaton College indicates that federal courts applying the federal RFRA will take at face value a religious claimant's statement that her religion forbids her from doing just about anything. If the claimant says "I can't sign the form seeking an exemption from providing contraception insurance because signing the form is tantamount to performing an abortion," the Court (in Wheaton College) appears to accept that as a sincere religious belief. The Court treats the substantial burden inquiry as focused on the cost of non-compliance absent an exception, not on the burden of complying with the regulation in the first place.

Now admittedly, Wheaton College was an interim order that purported not to be an expression of a view on the merits. It's possible that if and when these issues return to the Supreme Court, the Justices will be a bit more skeptical of seemingly attenuated claims of this sort. Indeed, I suggested as much in my initial post on Wheaton College last year, and the subsequent lower federal court cases involving non-profits seeking RFRA exceptions beyond what the ACA itself affords tend to view burden claims more skeptically than the Court arguably did in Wheaton College. In what might be described as a mini-symposium on Hobby Lobby, last year Professors Buchanan, Colb, and I wrote multiple entries on the decision. (One of the last in the series is here, with links to the others therein.) Although I criticized some of the criticisms of Hobby Lobby as ill-founded, the ultimate bottom line of these posts and columns was skeptical of the approach of Hobby Lobby. Thus when I say in the latest column that Hobby Lobby and Wheaton College--if followed as an approach to the Kentucky RFRA--could provide considerable support for people like Davis, I am making a descriptive and predictive statement; I do not mean to say that I would welcome that result.

One reason why courts might choose not to follow the approach of Hobby Lobby/Wheaton College in future cases like Davis is the difference between public and private actors. As some of the comments on my short post yesterday indicated, it may be tempting to draw a distinction between government as regulator--where religious exceptions may sometimes be justified--and government as employer--where religious exceptions are harder to administer. My view on that question, for what it is worth, is that a RFRA should not be categorically unavailable to government employees. If the county clerk's office is open on weekends (to accommodate a hardworking local population) and has a general rule that each deputy clerk must work one Saturday and one Sunday each month, then I would think it completely appropriate for the state RFRA to provide exceptions to this policy for people who cannot work on either Saturday or Sunday because of their sabbath observance--even if they took the job of deputy clerk knowing full well that work on their sabbath was a requirement of the job.

Other kinds of exceptions for public servants may be more difficult to grant without upsetting the functioning of the government. To my mind, that means that courts ought to be relatively solicitous of government arguments that there is a compelling interest in the orderly and fair administration of the law. Thus, substantial burdens on religion that might be impermissible in the government-as-regulator context will sometimes be permissible in the government-as-employer context.

If the disadvantage of applying a state RFRA in cases of this sort is the potential disruption of government in many areas, a seemingly better alternative might be presented by what North Carolina and Utah do. North Carolina's law, which was enacted over the governor's veto in June, permits officials ordinarily responsible for issuing marriage licenses to recuse themselves from issuing all such licenses if they have a religious objection to any of the marriages. It also then designates substitute officials to issue licenses. Utah's law, which became effective in May, is roughly to the same effect, permitting a county clerk to designate someone to be available at all times to issue marriage licenses and to solemnize marriages. Thus, in both states, a government official whose duties would otherwise include issuing marriage licenses or solemnizing marriages can opt out on religious grounds from all marriages but crucially: (1) there is no official who assists in opposite-sex but not same-sex marriages; and (2) there is always at least one official available to serve the public with respect to marriage.

Given those two conditions, it would appear that the North Carolina and Utah laws accommodate religious objections of officials without putting the state in the position of treating same-sex marriages as second class in any sense. Win-win, right?

Maybe not. In 2011, I published an article in the Virginia Law Review--Same-Sex Marriage, Second Class Citizenship, and Law's Social Meanings--arguing that laws and government policies that have the social meaning of treating some people as second-class citizens are, ipso facto, unconstitutional. When the states of North Carolina and Utah chose just this one government function--providing government services for marriage--as specially eligible for opt-outs based on religion, they effectively communicated that of all the religious objections that a government official might have to any of his or her duties, this one is especially weighty. Although the laws do not say what the religious objection to performing marriages might be, it is obvious to everyone that the laws were enacted in response to the likelihood of legal same-sex marriage. The effect of the state laws is not to communicate state opposition to same-sex marriage at the point of licensing or solemnization but they do seem to communicate that message at the point of enactment.

Of course, here, as elsewhere, law's social meaning is multivocal. (That's why my article title refers to social meanings in the plural.) North Carolina and Utah could be said to be communicating accommodation for religion, not homophobia--and no doubt that is part of the motivation. But at least relative to the application of a general state RFRA, which provides religious accommodations solely based on individuals' religious practices, the special purpose North Carolina and Utah laws look more like an endorsement of opposition to same-sex marriage.

In my 2011 article, I noted that case law only weakly supports a justiciable freestanding norm against state messages communicating second-class citizenship. Thus I think that the courts will likely uphold the North Carolina and Utah laws if they are challenged and that maybe this is even the right result in a judicial setting. But it does not follow that, from the perspective of a conscientious legislator, the North Carolina/Utah approach is better than the application of a general state RFRA. At least from the perspective of social meaning, it appears to be worse.