In recent months litigation in federal courts has resulted in the lifting of a ban on same-sex couples access to civil marriage in 33 states. (This number is changing almost every day as new jurisdictions are ordered to lift the ban on marriage for same-sex couples.) In the wake of this wave of successes for the marriage equality movement, some policy-makers have proposed that public officials responsible for officiating over civil marriages and/or issuing marriage licenses be granted an exemption from presiding over the marriages of same-sex couples if doing so would offend their conscience or sincerely held religious beliefs. Some of these proposals suggest that officials who have religious or conscience-based objections to issuing a marriage license could lawfully delegate responsibility for issuing that license to deputies or assistants who do not have the same objections. These advocates assert that these proposals lawfully balance the constitutional rights of same-sex couples to marry with the religious liberty rights of public officials. While there are a number of such proposals being put forward in jurisdictions across the country, we will refer to them collectively in this memorandum as “marriage license exemption proposals.”
This legal memorandum analyzes the legality of these “marriage license exemption proposals” under the First and Fourteenth Amendments to the U.S. Constitution and Title VII of the Civil Rights Act of 1964. (The memorandum does not examine their legality under the federal Religious Freedom Restoration Act, or RFRA, as RFRA does not apply to state or local employees. ) The memorandum concludes that nothing in the Constitution or in Title VII requires such exemptions. Instead, adopting such exemptions by statute or policy would violate fundamental constitutional rights secured by the Fourteenth Amendment Equal Protection clause and the First Amendment’s prohibition against the establishment of religion.
The legal memorandum is available here.
(cross-posted from the Gender & Sexuality Law Blog here