Same-Sex Marriage and Religious Liberty: Emerging Conflicts

Same-Sex Marriage

and Religious Liberty

Same-Sex Marriage

and Religious Liberty:

Emerging Conflicts

Edited by

Douglas Laycock,

Anthony R. Picarello, Jr.,

and Robin Fretwell Wilson

THE BECKET FUND FOR RELIGIOUS LIBERTY

AND

ROWMAN & LITTLEFIELD PUBLISHERS, INC.

Lanham • Boulder • New York • Toronto • Plymouth, UK

ROWMAN & LITTLEFIELD PUBLISHERS, INC.

Published in the United States of America

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Copyright © 2008 by The Becket Fund for Religious Liberty

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher.

British Library Cataloguing in Publication Information Available

Library of Congress Cataloging-in-Publication Data

Same-sex marriage and religious liberty: emerging conflicts / edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson.

p. cm.

Includes index.

ISBN-13: 978-0-7425-6325-4 (cloth : alk. paper)

ISBN-10: 0-7425-6325-1 (cloth : alk. paper)

ISBN-13: 978-0-7425-6326-1 (pbk. : alk. paper)

ISBN-10: 0-7425-6326-X (pbk. : alk. paper)

ISBN-13: 978-0-7425-6564-7 (electronic)

ISBN-10: 0-7425-6564-5 (electronic)

1. Same-sex marriage—Religious aspects. 2. Same-sex marriage—Law and legislation. 3. Freedom of religion. I. Laycock, Douglas. II. Picarello, Anthony R., Jr. III. Wilson, Robin Fretwell.

BL462.S36 2008

346.7301’68—dc22

2008019239

Printed in the United States of America

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI/NISO Z39.48-1992.

In memory of my sister, Martha

—Douglas Laycock

To my wife, Martha

—Anthony R. Picarello, Jr.

This is for my mother, Alice

—Robin Fretwell Wilson

Acknowledgments

We are indebted to the Becket Fund for Religious Liberty for sponsoring the conference that spawned this thought experiment and resulting book. The Becket Fund is a nonpartisan, interfaith, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund is frequently involved as counsel in cases seeking to preserve the freedom of religious institutions to pursue their missions without excessive government interference or entanglement.

The Becket Fund has dedicated significant resources to the neutral, academic study of the impact that changing the definition of the legal term marriage is likely to have on religious liberty. The Becket Fund has represented a wide range of clients—including Agnostics, Buddhists, Christians, Jews, Hindus, Muslims, Sikhs, Unitarians, and Zoroastrians, among many others—who take different positions on the same-sex marriage question.

We are also indebted to Washington & Lee University School of Law and the Frances Lewis Law Center for their support of this project, and to Joseph Mercer and Richard Schlauch for their painstaking assistance with the copy edit. We are grateful to Roger Severino, Eric Rassbach, and Benjamin Dougherty at the Becket Fund for their hard work and assistance. We also thank Professors Cole Durham and Robert Destro for their contributions to the conference that led to this book. Finally, we thank our editors at Rowman & Littlefield, Ashlee Mills and Krista Sprecher, for all their hard work.

Introduction

Anthony R. Picarello, Jr.

This is not a(nother) volume debating the pros and cons of same-sex marriage. Instead, it is a thought experiment in religious freedom carried out by seven outstanding legal scholars and practitioners. The experiment took place in December 2005 and was sponsored by the Becket Fund for Religious Liberty, a non-profit, public interest legal and educational institute dedicated to protecting the free expression of all religious traditions.

The authors gathered for this study represent a wide range of views on same-sex marriage. But they have been asked to avoid that underlying dispute and instead to take as a given that the legal definition of marriage has been expanded to include same-sex couples, and then to explore the religious freedom implications of that legal change.

The questions they explore in their chapters can be grouped into two broad categories. First, what kind of religious freedom conflicts, if any, are likely to emerge as a result of the change in marriage law? In what areas of the law will disputes emerge? Will the disputes be common or rare? Will these likely disputes fall into discernable patterns or categories that warrant distinct legal treatment?

The second set of questions relates to how these potential disputes, once identified, might be resolved. When the disputes come down to First Amendment litigation—whether under the Free Speech, Free Exercise, or Establishment Clauses—who will win, and why? Is it possible to avoid these conflicts altogether through the legislative or executive / regulatory process by foresightful accommodations of religious exercise, or is constitutional litigation inevitable? Are religious exceptions created by the political branches better or worse than, or as good as, exceptions created by the judicial branch? Could the disputes be resolved, in whole or in part, by the separation of religious and civil marriage?

Marc Stern’s chapter traces out the scope of the problem. He identifies a wide range of potential church-state conflicts triggered by redefining legal marriage, some based on current experience where sexual orientation discrimination is prohibited, and some hypothetical. These include restrictions on speech against same-sex marriage in public employment and educational contexts, and elsewhere in the public square;¹ the withholding of licenses and accreditations from professionals and institutions that oppose same-sex marriage;² and civil rights laws that prohibit discrimination in employment, public accommodations, housing, and education.³ Although he does not systematically analyze how these conflicts have turned out to date, Stern notes the uneven and unpredictable character of the litigation outcomes, as well as the wide variation among legislative accommodations for religious exercise.⁴

Jonathan Turley draws a narrower focus, examining more closely two particular anticipated conflicts. The first is the government’s potential decision to deny religious organizations that oppose same-sex marriage the federal Section 501(c)(3)⁵ tax-exempt status they would otherwise enjoy, just as that status was denied Bob Jones University⁶ for its religious opposition to interracial marriage.⁷ The second is the government’s exclusion of opponents of same-sex marriage from state-sponsored charitable giving programs, just as the State of Connecticut recently excluded the Boy Scouts⁸ from such a program for their opposition to same-sex conduct more broadly.⁹ Turley explains that the Supreme Court’s Free Exercise and Free Speech jurisprudence (in each case, respectively) is unfortunately muddled, and so fails to provide lower courts with clear guidance, allowing them to reach opposite results with near-equal justification.¹⁰ He then argues that the Court should resolve the ambiguities strongly in favor of the freedoms of expressive association and religious exercise, in part to assure a genuine diversity in civil society of competing views on controversial questions.¹¹

Robin Wilson draws on an analogous experience from the healthcare context, not only to predict the kinds of religious liberty conflicts that will arise out of same-sex marriage, but also to offer some constructive potential solutions to those conflicts. In particular, she discusses the history of disputes that have arisen where religious individual and institutional healthcare providers refuse to provide abortion or contraception services.¹² That history suggests that proponents of same-sex marriage may seek to harness the power of state and federal governments to withhold funding streams and tax exemptions. In this way, proponents would transform a negative right to be free from government interference in the controversial activity in question, into a positive right to support for that activity, from both government and objecting private actors.¹³ That history also suggests that conscience clauses and other legislative and regulatory exemptions can go a long way toward reducing the number and severity of conflicts between same-sex marriage and religious liberty.¹⁴ Wilson proposes, among other things, that legislatures grant objecting Justices of the Peace an exemption from having to perform civil same-sex marriages, so long as another willing Justice of the Peace is available to perform that service.¹⁵

Douglas Kmiec responds to the preceding chapters, recognizing the same range of potential conflicts, but identifying some considerations that could conceivably enable religious institutions to prevail in those conflicts, whether politically or judicially. He argues that the Internal Revenue Service’s denial of federal tax exemption to Bob Jones University is based on reasoning that cannot easily be extended to religious institutions that oppose same-sex marriage, and that even if the exemption were denied, the Free Exercise Clause rationale of the Bob Jones University decision should be distinguished and ought not control.¹⁶ However, he illustrates both the complexity and difficulty of defending religious doctrine that may soon be portrayed as antisocial. Should jurisdictions begin to follow the California Supreme Court’s finding that sexual orientation is a suspect, highly protected classification, Kmiec predicts that state-level tax exemptions will be particularly vulnerable to attack, adding that they may be withdrawn not only through the regulatory process, but through direct challenge in court.¹⁷ He joins Jonathan Turley in his strong critique of the Free Speech Clause reasoning of the United States Court of Appeals for the Second Circuit in Boy Scouts v. Wyman.¹⁸ He also explores whether the participation of religious institutions in the government function of solemnizing civil marriages might subject them to the constraints of the constitution as state actors, concluding that they would not.¹⁹

Chai Feldblum’s chapter focuses on how to resolve these disputes when they arise, and more particularly what constitutional analysis should apply. She first emphasizes the importance of acknowledging both that there are genuine—and, in important respects, similar—liberty interests at stake on both sides of these disputes,²⁰ and that, nevertheless, one of the interests ultimately must prevail at the expense of the other.²¹ She then argues that these mutually exclusive interests should be analyzed under the substantive Due Process protection of the Fifth and Fourteenth Amendments, as interpreted by Justice Souter in his concurring opinion in Washington v. Glucksberg,²² rather than under the Free Exercise or Free Speech Clauses of the First Amendment.²³ On this analysis, claims of freedom to observe religious beliefs should not be treated any differently than those based on analogous secular beliefs and should rarely, if ever, prevail over claims of sexual liberty.²⁴ She concludes by proposing some narrow legislative exceptions that would describe the limited set of circumstances under which she believes that religious liberty interests should prevail.²⁵

Charles Reid’s chapter critically examines a proposed solution to some of these conflicts, which is to disjoin legal and religious marriage. He first provides a brief history of the institution of marriage in Europe and the United States, including its religious origins, and the deeply intertwined and occasionally indistinguishable roles of religion and the law within it.²⁶ This history suggests that any attempt at separating them completely would represent an extreme discontinuity with the past, creating confusion and alienation from the institution.²⁷ He adds that law has an inherently moral and religious dimension—as it both reflects the morality of society, which is most often religion-based, and instructs society in morality. Reid argues that the law of marriage is no different and, indeed, bears especially intimate ties with the moral and religious life, as it implicates ultimate questions and fundamental life experiences.²⁸ In this context, disjoining legal and religious marriage appears undesirable and unworkable, if not simply incoherent.²⁹

Douglas Laycock’s afterword wraps up this volume, first by dividing the conflicts between religious and sexual liberty into the avoidable (but, alas, unlikely to be avoided) and the unavoidable.³⁰ He then evaluates the contrasting approaches for resolving these conflicts offered by Feldblum (sexual liberty almost always prevails) and Wilson (religious liberty prevails if the same-sex couple can obtain services elsewhere), ultimately aligning with Wilson.³¹ He also critiques Reid’s opposition to the separation of religious and legal marriage—or, to use the refined vocabulary Laycock would propose, religious marriage and civil unions—and concludes that the separation is not only possible but desirable.³² Although it would helpfully reduce the emotional intensity of the debate and correct a long-standing anomaly in American church-state law, this separation would not preclude or resolve entirely the conflicts examined in this volume.

For all its breadth and depth, this volume only begins to explore this new, exciting, and rapidly changing area of inquiry. It is my hope that it will stimulate a broader conversation about the relationship between religious liberty and the civil and legal definition of marriage, and so prompt others to examine these topics more deeply in the years to come.

CHAPTER ONE

Same-Sex Marriage and the Churches

Marc D. Stern¹

California’s legislative effort to legalize same-sex marriage, recently vetoed by Governor Schwarzenegger,² contained only one provision dealing with religion. Section 7 of Assembly Bill 849 provided:

No priest, minister, or rabbi of any religious denomination, and no official of any nonprofit religious institution authorized to solemnize marriages, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion guaranteed by the First Amendment to the United States Constitution or by Section 4 of Article I of the California Constitution.³

Modeled after the Canadian same-sex marriage legislation,⁴ Section 7 deals with the official intrusion into religious liberty with regard to same-sex marriage that is least likely to occur. No one seriously believes that clergy will be forced, or even asked, to perform marriages that are anathema to them.⁵ Nonetheless, this chapter argues that same-sex marriage would work a sea change in American law. That change will reverberate across the legal and religious landscape in ways that are unpredictable today. The most obvious will be in family law, a topic explored elsewhere in this volume.⁶

This chapter illustrates that the foreseeable collisions between religion and the reframed institution of marriage far exceed the narrow focus of Section 7 on solemnization. Part I examines the impact of same-sex marriage on the freedom to preach—in the church, public schools, or elsewhere in the public square. Parts II and III then consider how entities that require a license to operate or receive governmental funding will likely fare if they oppose same-sex marriage. Part IV assesses how recognizing same-sex marriage will push the existing boundaries of civil rights laws—from housing, to employment, to access to public property. Finally, part V briefly explores whether the Religious Freedom Restoration Act⁷ or the Free Exercise Clause or state equivalents will insulate individuals objecting to the application of civil rights laws in ways that burden religious exercise.

I. The Freedom to Preach Against Same-Sex Marriage

First and foremost, religious institutions have the duty to spread the word, first to their own believers, and then to others. Faiths differ in the degree to which they feel obligated to spread the faith, some being focused on reaching existing believers, and others being more outwardly directed. In today’s mass media society, even believers are often addressed by their own faith leaders through widely disseminated newspapers, books, radio, television, and the internet, rather than only through in-church sermons or Sunday school classes.

Will speech against same-sex marriage continue unfettered? Under the American regime of freedom of speech, the answer ought to be easy. The First Amendment guarantee of freedom of speech protects speech that is highly critical of particular racial, religious, or ethnic groups, or religious ideas, even speech that crosses the boundary into raw bigotry.⁸ It also protects speech that sharply criticizes existing law, so long as it falls short of direct incitement to imminent unlawful action and does not constitute fighting words.⁹ There are signs that this robust vision of speech is eroding across Europe and elsewhere in the Western world, including the United States.

A. The Picture Abroad

Abroad, hate speech is illegal. Most European nations suppress hate speech in the name of protecting the equality rights of those defamed. European courts routinely uphold criminal convictions for racist speech, despite claims that these prosecutions impair freedom of speech. Great Britain recently considered government-sponsored legislation that would have made it a crime to incite religious hatred by criticizing a religion. The bill was defeated in the House of Lords.

Oriana Fallaci was prosecuted in Italy for defaming Islam by being sharply critical of its antimodern tendencies, a prosecution abated only by death. Upholding that complaint, a judge wrote that the complaint sufficiently alleged that Fallaci’s published works were unequivocally offensive to Islam.¹⁰

In Canada, a Protestant minister was fined by the Saskatchewan Human Rights Board of Inquiry for distributing bumper stickers with a circle and a slash together with a slogan categorizing homosexual behavior as sinful, quoting biblical verses condemning homosexuality.¹¹ The Queen’s Bench of Saskatchewan upheld the administrative fine over the minister’s free speech claim:

The Board concluded that the stick figures combined with the biblical passages would expose homosexuals to hatred and ridicule.

[T]he Board states:

Having reviewed all of the evidence, the Board accepts that the universal symbol for forbidden, not allowed or not wanted, consisting of a circle with a slash through it, may itself not communicate hatred. However, when combined with the passages from the Bible, the Board finds that the advertisement would expose or tend to expose homosexuals to hatred or ridicule, or may otherwise affront their dignity on the basis of their sexual orientation. It is a combination of both the symbol and the biblical references which have led to this conclusion.¹²

The court also held that prohibiting this speech was a reasonable limit on the right to freedom of expression.¹³

This decision was reversed in a nuanced opinion four years later.¹⁴ The Saskatchewan Court of Appeal held that the circle and slash and Biblical quotations did not violate the statute, at least in 1997, when equal rights for gays were newly established in Canada, same-sex marriage had not yet been legalized, and an active debate continued. The Court of Appeal also thought that the Biblical source of the quotations made them somewhat less offensive and less likely to be taken literally. But it did not say whether the same advertisement would be protected in 2006.

Canada’s recognition of same-sex marriage and its addition of sexual orientation to Canada’s hate speech law sparked fears that further prosecutions would be forthcoming.¹⁵ And to some extent, that has happened. The Saskatchewan Queen’s Bench has interpreted the Court of Appeal’s decision not to preclude a proceeding for civil penalties against a defendant who distributed flyers accusing gays of desiring sex with children.¹⁶

Government authorities have attempted to regulate speech by religious groups with mixed success. In Trinity Western University v. College of Teachers, the Canadian Supreme Court considered the legality of the action of the teaching credentialing authority, the British Columbia College of Teachers (BCCT), to refuse to accredit a religious university’s (Trinity) teacher training program.¹⁷ As a condition of admission, Trinity students had to sign an acknowledgment that their conduct would comport with the school’s policy that homosexuality was sinful. Despite this promise, there was no evidence that Trinity’s students acted on their beliefs about homosexuality in their public school student teaching.

BCCT refused to accredit Trinity’s program. It argued that Trinity-educated teachers would espouse anti-gay viewpoints in the public schools and that their mere presence would send a message of exclusion to gay students. The Canadian Supreme Court held that it was premature to deny Trinity’s accreditation. It took note of Canada’s commitment to equality, but also of its commitment to religious liberty. It also rejected BCCT’s claim that Trinity’s statement of faith illegally discriminated against homosexuals, who could not in good conscience sign it.

A dissent, however, would have upheld the decision of the BCCT:

There can be no doubt that the attempt to foster equality, respect and tolerance in the Canadian educational system is a laudable goal. But the additional driving factor in this case is the nature of the educational services in question: we are dealing here with the education of young children. . . .

The burden placed on expression is rationally connected to the … goal of ensuring a welcoming and supportive atmosphere in classrooms. The expression at issue, namely the signing of [Trinity’s admission] contract, is itself the source of the … concern about the educational implications of teachers completing … training [under Trinity’s auspices]. Therefore a burden on this expression is a rational response to the … mandate to protect the public interest. … [T]he [BCCT] had a reasonable apprehension of harm to the classroom environment; there is no need for scientific proof of cause and effect between the objective and the means.¹⁸

This last point may well be the dispositive one. Does one need actual proof of harm to justify silencing speech or is a reasonable apprehension of harm sufficient to carry the government’s burden?

More recently, complaints have been filed with federal and provincial human rights commissions in Canada against a radio talk host and several websites, alleging that they violated Canadian human rights laws with broadcasts, a letter to the editor, and Web postings. The Alberta Human Rights panel recently decided that a minister violated Alberta’s equality ordinance by sending a crude letter attacking homosexuals as wicked and calling for a war against their agenda, which included using tax funds to pay for schools to advocate that agenda. Although the individual parties sparred over whether the speech was political—and after the newspaper agreed never again to publish such a hateful letter—the hearing officer found that the letter written for publication violated Alberta’s equality ordinance. It is, she said, in my view nonsensical to enact broad and paramount and remedial legislation … to protect the dignity and human rights of Albertans only to have it overridden by the expression of opinion in all forms.¹⁹ Subsequently, the defendant was banned from further violations and instructed to request publication of an apology.²⁰

In an earlier case, the Canadian Supreme Court upheld the firing of a teacher, Malcolm Ross, who expressed anti-Semitic sentiments in a letter to a local newspaper and in books, articles, and pamphlets. These had become the subject of local controversy:

[T]he testimony of the students did not establish any direct evidence of an impact upon the school district caused by the respondent’s off-duty conduct. Notwithstanding this lack of direct evidence, the Board concluded as follows:

Although there was no evidence that any of the students making anti-Jewish remarks were directly influenced by any of Malcolm Ross’ teachings, given the high degree of publicity surrounding Malcolm Ross’ publications it would be reasonable to anticipate that his writings were a factor influencing some discriminatory conduct by the students.²¹

In upholding the dismissal, the Canadian Supreme Court noted the central role of schools in communicating values:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate. … [A] school board has a duty to maintain a positive school environment for all persons served by it.

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community’s perception of the ability of the teacher to fulfill such a position of trust and influence, and upon the community’s confidence in the public school system as a whole. . . .

By their conduct, teachers as medium must be perceived to uphold the values, beliefs and knowledge sought to be transmitted by the school system. The conduct of a teacher is evaluated on the basis of his or her position, rather than whether the conduct occurs within the classroom or beyond. Teachers are seen by the community to be the medium for the educational message and because of the community position they occupy, they are not able to choose which hat they will wear on what occasion; teachers do not necessarily check their teaching hats at the school yard gate and may be perceived to be wearing their teaching hats even off duty.²²

An American court has reached similar conclusions with regard to a teacher who belonged to the North American Man-Boy Love Association.²³ The teacher had not introduced the fact of his membership into the school, nor had he acted on his beliefs in school. Nevertheless, students knew of his membership in the association from the press. The courts upheld the discharge of that teacher for many, but not all, of the reasons given by the Canadian Supreme Court.

In Sweden, a pastor prosecuted for urging that homosexuality is sinful was convicted of a hate crime by a trial court. That conviction, however, was reversed by the intermediate court of appeals, and the Swedish Supreme Court upheld the dismissal of the charges.²⁴

A document entitled Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, published in 2007 by distinguished experts in … human rights law, gives some sense of how far the scales are tilted against expressions critical of homosexuality. With regard to sexual orientation, these guidelines provide:

States shall:

A. Take all necessary legislative, administrative and other measures to ensure the right of persons, regardless of sexual orientation or gender identity, to hold and practice religious and non-religious beliefs, alone or in association with others, to be free from interference with their beliefs and to be free from coercion or the imposition of beliefs;

B. Ensure that the expression, practice and promotion of different opinions, convictions and beliefs with regard to issues of sexual orientation or gender identity is not undertaken in a manner incompatible with human rights.²⁵

The right to speech to promote different opinions, i.e., critical views of homosexuality, is limited by the need not to be incompatible with human rights, but no such restriction is applicable to speech in favor of equal treatment of homosexuals. While it is too early to know whether these guidelines will have any impact, Human Rights Watch has hailed the Yogyakarta Principles as a milestone for human rights.²⁶

How do these cases translate to the United States? At first glance, not well. There are no hate speech laws on the books in the United States. The American constitutional regime of free speech is far sturdier than those in place overseas. Equality is less central to the American constitutional universe than it is in Canada or Europe.

A reflexive dismissal is, however, too glib a conclusion. There are recent efforts at American universities to judge the fitness of education students to become teachers on the basis of their moral attitudes.²⁷ So far, there is no evidence that these efforts extend to attitudes about homosexuality. It is reasonable to expect that they will. And, indeed, the Bush Administration’s nominee for Surgeon General was recently sharply questioned about a paper he wrote fifteen years ago for a religious group debating its stand on homosexuality.²⁸

The future course of events will partially depend on whether, and to what degree, American courts will be influenced by the decisions of foreign courts. The outlook for the long term is not certain. The prediction that opponents of same-sex marriage would be prosecuted under Canada’s hate speech law did not come to pass when that very subject was debated across Canada. Still, the foreign cases are indications of a line of judicial thinking.

B. American Cases

There is nevertheless reason to worry now in the United States. Principles governing sexual harassment in the workplace could easily encompass expressions by religious institutions and persons that oppose same-sex marriage. Consider Krell v. Gray, a California decision upholding an injunction against a former teacher picketing in front of his former school with a sign identifying the principal as a racist.²⁹ Beginning with precedents on workplace harassment, the intermediate court found that the picketing interfered with the rights of school children because picketing would deny them a safe, secure and peaceful school environment.³⁰ It is no long jump from Krell to an injunction banning picketing in front of a school to protest a curriculum on same-sex marriage, on the theory that such picketing would deny some students a safe and peaceful environment.

Consider also a recent controversy at William Paterson University, a public university in New Jersey. The tenured head of an academic department at that public university sent an email invitation to fellow employees to view a film with gay/lesbian themes. A non-tenured member of the staff (not a faculty member) sent back an email asking not to be sent material describing perversions. He threatened no one with exclusion from the university, called no one a name, and physically touched no one. The staff member was disciplined for threatening a tenured professor and engaging in harassment based on sexual orientation, in violation of state policy forbidding derogatory or demeaning remarks.³¹

A single derogatory or demeaning remark that does not seek immediate, actual sexual gratification, or threaten the loss of job security, will rarely constitute harassment under either state or federal law.³² In a regime of free speech, no grown-up, not even a tenured faculty member, enjoys any legitimate expectation that the law will protect her against being exposed to disagreeable speech. Our entire regime of free speech depends on that principle. The United States Supreme Court has repeatedly refused to allow for hecklers’ vetoes in the interest of communal peace, instead insisting that a thick skin is a requirement of democratic citizenship.³³

The Attorney General of New Jersey took a different approach, however. The Attorney General found that William Paterson University was within its rights in disciplining the staff member.³⁴ Without analysis, and brushing past the question of whether the offending remark constituted workplace harassment in the first place, the Attorney General concluded that clearly speech which violates a nondiscrimination policy is not protected. This was so clear to the writer that she cited not a single case or law review article in support, although she might readily have cited the California Supreme Court.³⁵ The case ultimately went to arbitration, and the arbitrator concluded that the sexual harassment charge was not supported.³⁶

The United States Supreme Court spoke to these questions in Pittsburgh Press v. Pittsburgh Commission on Human Relations, which ought to be controlling.³⁷ There a newspaper ran paid want-ads on a sex-segregated basis. The question was whether this practice violated an antidiscrimination ordinance. The Court upheld the application of the antidiscrimination ordinance, but concluded that:

We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial.³⁸

Presumably this view will preclude a hostile environment case based on a religious institution’s spreading its message to outsiders and, perhaps, to employees generally (as opposed to targeting a single employee as a sinner). It likewise should have protected the employee in the William Paterson case and the picketer in Krell.

Employees in the private workplace have so far by and large fared poorly in asserting a right to express vocal opposition to the gay-rights movement and employers’ celebration of sexual diversity. Those cases, discussed below,³⁹ are distinguishable, because they also raise questions of the employer’s right to speak and act against intolerance in the workplace. Nevertheless, they are indicative of a general trend.⁴⁰

What of the church as employer? And what of church-affiliated agencies, especially those offering primarily secular services, such as healthcare, to the general public? Could an employee or client of such an agency successfully assert a hostile environment claim because the employer actively campaigned against gay rights or same-sex marriage and asserted that these practices were irredeemably sinful? Would it matter whether the speech was not aimed at the workplace? Conversely, would an employee of a church-affiliated institution have a right to be accommodated in his religious beliefs in support of gay rights or same-sex marriage? Could an employee of, for example, Catholic Charities act on deep religious conviction by wearing a gay-rights t-shirt or by signing a newspaper ad in favor of abortion choice and then be denied religious accommodation?⁴¹

C. Exemption Statutes and Harassment – A Short Introduction

The answers to these questions will depend on the vagaries of state and federal statutes, discussed below. Some states wholly exempt religious institutions from the civil rights laws.⁴² Others, following the federal model, permit only religious discrimination. These states allow religious identity discrimination (e.g., we hire believers only) but not religiously motivated discrimination (i.e., the discharge of employees who engage in sexual relations the religious employer deems religiously unacceptable). Still other states expand the scope of exempted religious discrimination to permit discrimination when the employee has religious responsibilities.⁴³ And other states have no special exemption for religious institutions at all.⁴⁴

Employment decisions about ministers are generally off limits to courts. But ministers often represent only a small percentage of the employees of church-affiliated institutions.⁴⁵ Thus, exemptions do not protect all religiously motivated speech by church-affiliated organizations critical of same-sex marriage, at least when that speech trenches upon interests protected by civil rights laws.

Moreover, substantial questions surround what sorts of religiously affiliated institutions fall within the scope of religious exemptions. The National Labor Relations Board and reviewing courts are all over the map in deciding what is a religious institution under NLRB v. Catholic Bishop,⁴⁶ a case which arguably rests on theories of the Establishment and Free Exercise Clauses that are no longer valid.⁴⁷ Some courts look to organizational documents, some to actual practices, and some to whether the institution has secular counterparts. Predictability is hard to come by.

Overarching all this is a pivotal question: does the exemption disappear when an institution accepts government funds? Professors Carl Esbeck, Stanley Carlson-Thies, and Ronald J. Sider assert that the answer is no in the employment context.⁴⁸ At least one federal district court has held that employers must choose between funding and an exemption.⁴⁹ The opinion of the United States Court of Appeals for the Second Circuit, in the child-care version of Dickens’s Bleak House, Wilder v. Bernstein,⁵⁰ reached the same conclusion.

The Bush Administration has taken the position that acceptance of funds is not fatal to an assertion of religious exemption for employment discrimination, based in part on the Religious Freedom Restoration Act.⁵¹ However, there is substantial political and legal opposition to that position (which may not survive the next presidential election).

The Administration’s position is being challenged on constitutional grounds in a pending case with a gay-rights background, Lown v. Salvation Army.⁵² There the United States district court issued a ruling mostly favorable to the Salvation Army, holding that receipt of government funds was not incompatible with asserting a Title VII exemption, although it left for further litigation the question of whether the Salvation Army could receive government funds in the first place. If the matter is not settled, an appeal is certain. No significant scholarly voice now argues that service providers that receive government funds ought to be able to discriminate against clients, but that issue is also sure to arise.

If the contraceptive insurance-coverage cases are any guide, only the house of worship itself can count on accommodation from the legislature or courts. In both New York and California, the courts upheld schemes that require church-affiliated social service agencies to provide contraceptive coverage, although churches themselves—defined as institutions in which a majority of employees (and clients and members) are of the same faith—need not do so.⁵³ These actions treat the church and its social welfare agencies as if they inhabit separate universes, a result at odds with other cases, notably the integrated-auxiliary tax cases.⁵⁴

The media trumpeted the decisions as evidence that Catholic institutions could be compelled to provide contraceptives in furtherance of the state’s compelling interest in sexual equality.⁵⁵ Of course, since employers were not seeking to discharge employees who used contraceptives, the real fight was over who paid. That payment was at stake should have undercut the states’ claim to act in pursuance of a compelling interest, but it did not.

More worrying is a second aspect of both cases: that without breaching religious freedom or equal protection guarantees, the legislature may distinguish between the church as a place of worship and as a social welfare agency. It may also refuse to accommodate the latter’s religious beliefs because of its greater openness to employees and clients of different faiths. Of course, there are decisions pointing decisively the other way in other contexts.⁵⁶ The message may be to stay small and intensely parochial if an institution wants to be absolutely certain of its eligibility for recognition as a religious institution.

D. Advocacy in the Public Schools

The picture in the nation’s public schools is mixed. Schools generally have properly tolerated both a day of silence in support of harassed gay students, and counter-protests, mostly manifested in wearing t-shirts with relevant slogans or biblical verses. To judge from a representative sample of news clippings, schools have done a good job of applying the relevant free speech standards, although in one sample reviewed elsewhere, school officials were slightly more likely to suppress speech opposing gay rights than speech in support of them.⁵⁷ Obviously, results vary depending on where in the country the issue arises.

At least two cases discuss the free speech rights of students to oppose gay rights in the public schools.⁵⁸ In both cases, students wore t-shirts with citations from biblical verses indicating that homosexuality is sinful. In both, school officials told the students that they could not wear the shirts because they would interfere with the right of gay students to feel safe and secure. In neither was there actual evidence of disruption of education or harm to others.

The courts have reached conflicting results in these cases. In one, Harper v. Poway Unified School District, the court rejected the school board’s motion to dismiss but gave substantial weight to its concerns about the safety and well being of gay students in avoiding plainly offensive speech. The United States Court of Appeals for the Ninth Circuit upheld the refusal to issue a preliminary injunction protecting the wearing of the t-shirt. In the other case, Nixon v. Northern Local School District, a federal district court concluded that the speech on the t-shirt was fully protected. In yet another matter that never reached court, the Civil Liberties Union of Massachusetts urged school officials to permit students to wear such t-shirt messages.⁵⁹

These courts disagree on two central points. The Supreme Court in its Tinker, Fraser, and Kuhlmeier trilogy allowed school officials to regulate student speech if it is plainly offensive.⁶⁰ The Poway court refused to limit the plainly offensive category to sexual innuendo or racial epithets. It did not reach any final conclusion whether the phrase homosexuality is shameful is or is not plainly offensive in the public school context. The Nixon court, by contrast, limited the scope of the plainly offensive category to sexual innuendo and calls for drug use. It specifically excluded from that category offensive political and religious points of view.

The second point of dispute between these cases is whether the Tinker category of harm to others is implicated by anti-gay t-shirts. The Poway court thought it might be because the school district had an obligation to keep gay students safe.⁶¹ The court reasoned that criticism of homosexuality might engender fear and feelings that homosexual students were unwanted. The court acknowledged, however, that the school could not allow t-shirts supporting gay rights while banning anti-gay ones. In Nixon, the court rejected outright the claim that the silent, passive expression of opinion violated other students’ rights. In the Supreme Court’s most recent venture into these waters, Morse v. Frederick (also known as the Bong Hits 4 Jesus case), the Court considered the free speech rights of a student to display a banner that school officials reasonably believed to advocate illegal drug use.⁶² The majority opinion acknowledged Tinker’s broad protection of student free speech, but did not explicitly decide whether it was still good law.⁶³ Two concurring justices,