Hypothetical Statute (building off of Marty's, but designed to raise Nelson's Hosanna-Tabor point more directly):
Michigan passes a statute that says schools can only be licensed if they adhere to nondiscrimination conditions in their employment relations. If Michigan attempted to enforce those nondiscrimination conditions against Hosanna-Tabor with respect to its relations with its called teachers, would it run up against the unconstitutional conditions doctrine? If so, would the same be true of Marty's hypothetical statute? On a related note, Bob and Chip tackled some of the issues we're working through in their 2010 piece, Same-Sex Equality and Religious Freedom: "Although such a coercive policy is politically inconceivable, it could be designed in a constitutionally defensible way. For example, the government could treat the celebration of civil marriage as a public accommodation, and prohibit discrimination by providers of that service. Or, the government could impose a condition on its grant of the authority to solemnize marriages, requiring the celebrant to be willing to serve all couples. In response to fears of this character, the states that have enacted same-sex marriage legislation have provided explicit assurances that neither clergy nor religious communities will be forced to cooperate in these ways.... Lawyers and scholars share a common intuition that the First Amendment, as well as state constitutional guarantees, protect these categories of religious freedom, but thus far there has been little explanation of why this is so. Our analysis of other, less muscular claims of religious liberty will unfold more cleanly if we first explain the conventional wisdom that neither clergy nor faith communities can be directly coerced into celebrating weddings for anyone, same-sex couples included." http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1055&context=njlsp (pp. 282-84) - Jim On Thu, May 7, 2015 at 10:03 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Perhaps the *couple *has an affirmative *due process *right to have the > state grant them a marriage license. (That's one of the issues currently > before the Court.) But even so, if the state can insist that they have > their wedding "solemnized" in order to obtain that license--something that > state laws apparently require, and a condition that I will for present > purposes assume to be constitutional -- do they have a fundamental right to > obtain the license even if they have not had the marriage "solemnized" by > one of the thousands of people who the state has licensed to perform that > function? I'm skeptical. > > In any event, that's not the question I was addressing. You had suggested > that the *ministers* have a *Free Exercise *right to be licensed by the > state to solemnize marriages--i.e., to be designated as one of the persons > whose officiating will be credited for purposes of a civil marriage license > -- even if they are unwilling to live by the (nondiscrimination) conditions > that our (completely hypothetical) state might impose on its > "solemnizing-official" designations. That's the argument I have trouble > with. > > On Thu, May 7, 2015 at 12:36 PM, Nelson Tebbe <nelson.te...@brooklaw.edu> > wrote: > >> >> >> Wow, that's interesting. I think vouchers are quite a bit different. >> Deb Widiss and I characterized civil marriage as a benefit in our piece in >> Penn. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594361. And I >> stand by our arguments there -- you're right that understanding civil >> marriage as a benefit can be useful for understanding some problems, like >> the question of equal access for same-sea couples. But there are strong >> arguments that access to civil marriage performed by clergy is a >> fundamental right. So that's one difference with school vouchers. Also, >> doctrinally, the statute you suggest would run up against Hosanna-Tabor, at >> least insofar as the clergy's actions are governed by theology. But I'm >> actively thinking about all of this right now and may well change my view. >> >> >> >> On May 7, 2015, at 12:10 PM, Marty Lederman <lederman.ma...@gmail.com> >> wrote: >> >> Thanks, Nelson. These really are quibbles, since we all agree -- I'm >> sure everyone on this list agrees -- that ministers are not about to be >> excluded from solemnizing marriages because they refuse to do so for >> same-sex or mixed-religion couples. Justice Kagan's "give me a break" >> response to Scalia was exactly right. >> >> Even so, I agree with Mike that there might be some value in us >> lawprofs trying to figure out precisely why that is--or at least which >> doctrines might need to be addressed. >> >> Norwood is *not *a state action case--that is to say, it's not a case >> about whether the private actors' conduct violates the Constitution because >> they should be "deemed" representatives of the state. It's a case about >> whether *the state itself* violates the Constitution when it knowing >> chooses to confer benefits on *private* discriminators. I think that >> neither theory of unconstitutionality is likely to be fruitful here -- but >> I do think it's important to distinguish between them, because they require >> different analyses. (As an example, we treated them very differently, to >> different effect, in the 2000 OLC memo.) >> >> More importantly, perhaps, I disagree with your First Amendment >> suggestion, for a reason that might be important across various free >> exercise contexts. Let's say a state did decide to grant "solemnization" >> licenses *only* to those persons who agree not to discriminate against >> any couples on the basis of race, religion or sexual orientation. You >> suggest that such a state law would be unconstitutional as applied to >> clergy "who had theological reasons for declining to officiate at certain >> weddings." I don't think so. Of course the state can't stop the clergy >> from performing *religious* marriage ceremonies. But I think if *could *make >> nondiscrimination a condition for obtaining the state *benefit *of a >> state "solemnization" license, in the same way a state can insist that >> vouchers be used only at schools that do not discriminate against students >> on such grounds. >> >>
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