by John Shu
On June 26, 2015, the U.S. Supreme Court (“SCOTUS”) decided Obergefell v. Hodges, holding that the Equal Protection and Due Process clauses of the 14th Amendment to the U.S. Constitution guaranteed same-gender marriage as a fundamental right. Justice Anthony Kennedy wrote the 5-4 majority opinion. Beyond the right to legally marry, same-gender married couples are now entitled to all of the federal, state, county, and local governmental benefits that opposite-gender married couples have. In terms of employment benefits, all businesses in the United States must treat same-gender and opposite-gender married couples the same. In fact, a large number of corporations filed or signed onto amicus briefs in support of the Obergefell plaintiffs; one of their main claims was that, if SCOTUS found same-gender marriage to be a fundamental right, businesses could reduce their business costs.
In the employment context, most of the federal circuit courts of appeal would likely hold non-profit, tax-exempt institutions, including religious institutions, to the same requirements. For example, the courts could rule that Catholic churches and Catholic schools will not be permitted to deny employment to a job candidate solely because he or she is in a same-gender marriage.
A tougher and broader question is how SCOTUS would rule in a case where its newly-found right of same-gender marriage conflicted with an enumerated First Amendment fundamental right, the Free Exercise Clause. Some would phrase the question as whether the Government (federal, state, or local) may force a citizen to act in a manner contrary to his or her sincerely-held religious beliefs.
While the Court would not likely uphold a law or regulation requiring a religious institution to perform, host, or otherwise sanctify a same-gender marriage, it is unclear as to how the Court would rule regarding a “neutral law of general applicability,” such as laws or regulations requiring businesses to serve all customers, regardless of race, religion, nationality, gender, or affectional preference.
The answer, at this point, is “Only Justice Kennedy knows for sure.” However, the Court’s prior First Amendment jurisprudence, as muddled and confusing as it is, does lend certain clues.
For example, in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court held that Oregon could deny unemployment benefits to Native Americans who were fired for using peyote, an illegal drug, as part of their religious ritual, and that while states may accommodate otherwise illegal acts done as part of religious beliefs, they are not required to do so. Justice Scalia wrote the majority opinion. The Court considered the Oregon law as a “neutral law of general applicability.” The Court stated that the Free Exercise clause does not permit an individual to use his or her religious beliefs as reasons to disobey neutral, generally applicable laws. Justice Scalia wrote that “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” Citing Reynolds v. United States, 98 U.S. 145, 166-167 (1979), Justice Scalia further stated that “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices … To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Accordingly, the Court has held that religious beliefs and/or the Free Exercise clause did not excuse people from complying with laws forbidding polygamy (Reynolds v. United States (1879), Davis v. Beason, 133 U.S. 333 (1890)), child labor laws (Prince v. Massachusetts, 321 U.S. 158 (1944)), Sunday closing laws (Braunfeld v. Brown, 366 U.S. 599 (1961)), laws requiring citizens to register for Selective Service (Gillette v. United States, 401 U.S. 437, 461 (1971)), and laws requiring the payment of Social Security taxes (United States v. Lee, 455 U.S. 252 (1982)).
Comparatively, the cases where SCOTUS permitted the Free Exercise clause to exempt an individual from a neutral, generally applicable law involved the assertion of that right plus some other right. For example, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court held that Amish parents’ First Amendment rights plus their right to direct their children’s education, which SCOTUS determined in Pierce v. Society of Sisters, 268 U.S. 510 (1925), outweighed Wisconsin’s interest in requiring that all Wisconsin children attend school beyond eighth grade. The Court’s key finding was that Wisconsin failed to show that the Amish children needed such schooling in order to function effectively and productively in Amish society. Other examples include Free Exercise clause plus freedom of speech and of the press, such as Cantwell v. Connecticut, 310 U.S. 296 (1940), Murdock v. Pennsylvania, 319 U.S. 105 (1943) and Follet v. McCormick, 321 U.S. 573 (1944).
So far, the bakers, florists, and other small business owners who are litigating against fines or other punishments for refusing to serve, on Free Exercise grounds, same-gender weddings did not assert a hybrid-right argument. The language in some of SCOTUS’ previous Free Exercise clause jurisprudence does not seem to bode well for these litigants. For example, in the business context, Chief Justice Warren Burger wrote for an unanimous Court in United States v. Lee, stating that “Not all burdens on religion are unconstitutional … When followers of a particular sect [the Amish] enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” In Gillette v. United States, Justice Thurgood Marshall wrote that 8-1 opinion in which he wrote that, with respect to the Free Exercise clause, “Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government.”
Interestingly, Justice Kennedy’s Obergefell opinion avoided Reynolds and the petitioner-plaintiffs avoided comparing same-gender marriage and polygamous marriages. Chief Justice Roberts’ dissent, however, specifically wondered why the majority found a fundamental right to same-gender marriage, but not to polygamous marriage.
 For example, Chief Justice Roberts wrote, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage … why would there be any less dignity in the bond amongst three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?” The Chief Justice also foretold Obergefell’s likely adverse impact on religious liberty, stating that “Most alarmingly, the majority opinion never discusses the free exercise of religion. The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
SCOTUS, in Reynolds, upheld Congress’ prohibition on bigamous and polygamous marriages in the Territory of Utah, despite the Mormon Church’s then-belief in such marriages. Mr. Reynolds had argued that as a Mormon, it was his sincere religious belief and religious duty as a male member of the church to practice polygamy if possible. Chief Justice Waite, writing for the full Court, stated
that “A party’s religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.” He also wrote that
“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices … So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.”
The Court furthered Reynolds in Davis v. Beason, 133 U.S. 333 (1890), which again denied Free Exercise clause exemption from laws criminalizing polygamy and which made those convicted of polygamy felons without the right to vote. Justice Field, for the Court, wrote that, with respect to polygamy, “Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment.” He echoed Reynolds when he wrote that “However free the exercise of religion may be, it must be subordinate to the criminal laws of the country,” or else the individuals would face “swift punishment.”
Like RFRA and RLUIPA, Congress has the power, if it chooses to exercise that power, to respond to Obergefell with respect to religious liberty protection. For example, in 2013 Congressman Raul Labrador (R-ID) and Senator Mike Lee (R-UT), perhaps anticipating Obergefell, introduced the “Marriage and Religious Freedom Act.” The bill would have prevented the federal government from taking adverse actions against groups which believe in the traditional definition of marriage, but it went nowhere. On June 17, 2015, Congressman Labrador and Senator Lee introduced the First Amendment Defense Act, which states that the government may not discriminate against people and institutions which speak and act according to their belief that marriage is a union of one man and one woman. In order to become law before January 20, 2017, however, President Obama would have to sign it, which he is unlikely to do, just like the rest of the current Democrat candidates running for president.
 H.R. 2802 and S. 1598, respectively. Both bills are still stuck in committee.
 Chief Justice Waite further noted that “Polygamy has always been odious … and from the earliest history of England, polygamy has been treated as an offence against society … By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death … From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests.”
 Justice Field also wrote that “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect [the Mormon Church] encouraging crime [polygamous marriage] may be carried out without hindrance.”
 H.R. 3133 and S. 1808, respectively. Interestingly, both Congressman Labrador and Senator Lee are Mormons.
Mr. John Shu is an attorney in Newport Beach, CA and author of the Law & Public Policy column. He worked for President George H.W. Bush and President George W. Bush, and clerked for Judge Paul Roney, U.S. Court of Appeals for the 11th Circuit and Chief Judge, Foreign Intelligence Surveillance Court of Review.