Northwestern Journal of Law & Social Policy
The case for accommodating religious objectors to same-sex marriage has met significant resistance on a number of fronts. Some believe that religious exemptions permit objectors to dodge legal duties to serve same-sex couples that would otherwise apply. Critics charge that, if extended to public employees, such exemptions would burden the ability of same-sex couples to marry. Others argue that exemptions coddle wrong-headed people who really do not have a legitimate reason for objecting and who, therefore, should not be legally excused. A review of the nearly half-dozen new same-sex marriage laws enacted in the past year suggests that the least sympathetic of these potential objectors is the government employee whose labor is supported by taxpayers, heterosexual and homosexual alike. The states that have embraced meaningful religious liberty protections have exempted religious groups and individuals authorized to preside over marriage ceremonies. But not a single state has shielded the government employee at the front line of same-sex marriage, such as a marriage registrar who, if she has a religious objection to same-sex marriage, will almost certainly face a test of conscience.
This article takes up what is arguably the hardest case for accommodation: exemptions for government employees, namely clerks, working in a state marriage registrar’s office. This article argues that government employees who have religious objections should be permitted to step aside from facilitating same-sex marriages when it poses no hardship for same-sex couples. It is incumbent upon a pluralistic liberal democracy to avoid forcing a needless choice between one’s beliefs and one’s livelihood. When another willing clerk is available, a religious objector should be able to step aside. In the case where another willing clerk is not available, however, the employee’s religious objection must yield because the state has granted same-sex couples the right to marry. This article documents the very real human costs that would flow from denying an accommodation and recounts a rash of dismissals, disciplinary proceedings, fines, and warnings leveled at government employees who object for religious reasons to assisting with same-sex marriage. This article then presents a proposed exemption that would allow government employees to step aside from facilitating same-sex marriages only when it poses no hardship to same-sex couples. Finally, this article addresses two commonly articulated reasons for dismissing the need to accommodate government employees: that a religious liberty accommodation would unconstitutionally burden the right to marry, and that government employees owe taxpayers service untainted by their private religious beliefs.
Robin Fretwell Wilson, Insubstantial Burdens: The Case for Government Employee Exemptions to Same-Sex Marriage Laws, 5 Nw. J. L. & Soc. Pol'y 318 (2010).