The Supreme Court ruled last month that same-sex marriage is a constitutional right. Now many supporters hope (and many opponents fear) that this decision will take away the rights of those who, for religious or free-speech reasons, do not want to participate in gay weddings. Just as the state can force a baker to design a wedding cake for a black couple, the argument goes, so the state can force all bakers to design cakes for gay weddings.
This argument misunderstands a crucial part of Justice Kennedy’s opinion. Granted, many of his statements about marriage are platitudes, but one thing is clear: In Obergefell v. Hodges, the Court did not rule that sexual orientation is a suspect class, and that makes all the difference in the world. Let me explain.
The Court has ruled many times that race is a “suspect class,” subject to “strict scrutiny,” under the Equal Protection clause. Translated into plain English, that means that laws that discriminate on the basis of race (except for the special exception of affirmative action) are invalid. The Court does not balance “suspect class” rights against others. In Obergefell, the Court found a gay-marriage right implied in due process and equal protection. The Court routinely balances implied rights with what the First Amendment specifically guarantees — free expression and free exercise of religion.
In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), gays, lesbians, and bisexuals sought to march as a group in the St. Patrick’s Day parade. The parade’s organizers refused, and the state courts ruled that this exclusion violated Massachusetts’s public-accommodation law, prohibiting discrimination because of sexual orientation. Justice Souter, for a unanimous Court, ruled that requiring the defendants to alter any expressive content of their parade violated free speech. The Court noted that the parade organizers in Hurley did not exclude gays as individuals; they did exclude a gay-pride float, and the First Amendment protected that exclusion.
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) involved the Santerias, who engage in ritual sacrifice of animals such as doves. When a Santeria church planned a house of worship in Hialeah, the city passed several ordinances to forbid the animal-killing that would occur there. Justice Kennedy, for the Court, invalidated them. To survive a Free Exercise challenge, the law must be neutral and of general applicability. For example, a state law that forbids all murder applies to a religion that believes in child sacrifice. In contrast, the law in Babalu fails that test because, the Court explained, it allowed animal deaths for nonreligious reasons, such as fishing or extermination of rats in the home. There were no dissents.
These cases apply to those who, on free-speech or free-exercise grounds, do not want to participate in gay marriages. For example, the state could provide that a photographer cannot refuse to take a passport photo of a customer because the customer is gay. Taking passport photos is not a work of art, and neither is it a participation in anything. However, the passport photographer is different from a wedding photographer, because designing a wedding portfolio is a work of art, and the wedding photographer does more than take a photo: He participates in the gay marriage. Hurley indicates that the state cannot force this participation.
Similarly, creating a wedding cake (unlike selling a cupcake) is a work of art, and entails participation (or refusal to participate) in a wedding, and that is a part of free expression, like a parade that excludes a gay-pride float.
Remember, in Babalu the Court said that the law must be neutral and of general applicability to be valid under Free Exercise. The laws forbidding discrimination on the basis of sexual orientation are not neutral if they do not prohibit a photographer or baker from refusing participation in a wedding for other reasons. For example, “You cuckolded me, and now you are marrying my ex-wife.” Or: “I will not participate in your wedding by taking photographs because you intentionally ran over my dog yesterday.” Hurley, Babalu, and similar cases all suggest that the state could force the photographer to take passport photos or the baker to sell cupcakes but could not force them to participate in gay weddings, because sexual orientation is not a suspect class.
At the oral argument in Obergefell, the government said that the tax-exempt status of religious institutions would be in doubt if they did not accommodate gay marriage. This administration in particular exercises no self-restraint respecting religious free exercise. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the administration argued that the Equal Employment Opportunity Commission had jurisdiction over discrimination claims by a Lutheran minister just as it would have over any other employee. The unanimous Court rejected that and ruled that the First Amendment prohibits the EEOC from interfering with the church. That precedent applies here.
Polls show that most people approve of Obergefell, which reflects a libertarian strain in American thought. If people want to marry, let them. The same libertarian impulses that support gay marriage also support the rights of others not to participate in those marriages if they have conscientious objections. We do not have to share those conscientious objections in order to protect them. For years, homophobia was common. It still exists but less so. There is no need to discriminate against those who have conscientious objections to participating in gay marriage. Turnabout is not fair play.
— Ronald Rotunda is Distinguished Professor of Jurisprudence at Chapman University, Fowler School of Law, where he holds the Doy & Dee Henley Chair.