Or for poorer? How same-sex marriage threatens religious liberty

Harvard Journal of Law and Public Policy

Volumn 30, Issue 3, 2007, Pages 940-982

  Severino, Roger ^a  

^a NONE

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EID: 36048960532     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (189)

1. Reference re Same-Sex Marriage, [2004] S.C.R. 698, 700 (advisory opinion holding proposed national same-sex marriage legislation consistent with Canadian Charter of Rights and Freedoms).
2. 798 N.E.2d 941, 967-70 (Mass. 2003) (ordering the Massachusetts state legislature to amend its marriage statutes within 180 days to allow for same-sex marriage).
3. See id. at 961 ("[W]e conclude that the marriage ban does not meet the rational basis test for either due process or equal protection.").
4. See infra Part III.
5. Goodridge, 798 N.E.2d. at 965 n.29.
6. See, e.g., Memorandum from Barry R. Bedrick, Assoc. Gen. Counsel, Gen. Accounting Office, to Hon. Henry J. Hyde, Chairman, H. Comm. on the Judiciary (Jan. 31, 1997), available at http://www.lmaw.org/freedom/docs/ GAORept-1,049FederalLaws.pdf (citing 1,049 federal laws that are contingent on marital status).
7. See Goodridge, 798 N.E.2d at 973 (Greaney, J., concurring).
8. See, e.g., Miller-Jenkins v. Miller-Jenkins, 637 S.E.2d 330, 337-38 (Va. Ct. App. 2006) (full faith and credit must be given to the custody and visitation orders of the Vermont court), recognizing Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951, 956 (Vt. 2006) (ruling that a former partner in a Vermont civil union entitled to "parent-child" contact and visitation rights over child in Virginia notwithstanding lack of biological parentage).
9. See Leviticus 18:6-18 (setting forth requirements for valid marriages).
10. See Marriage Act, 32 Hen. 8 c. 38 (Eng.) ("No Reservation or Prohibition, God's law except, shall trouble or impeach any Marriage without the Levitical Degrees.") (recognizing as lawful all marriages not prohibited by consanguinity rules specified by the Book of Leviticus); see also Clandestine Marriages Act, 1753, 26 Geo. 2. c. 33 (Eng.) (abolishing English common law marriage and requiring civil marriages "be solemnized in . . . Parish Churches or Chapels . . . and in no other Place whatsoever"). Henry VIII's infamous dispute with the Catholic Church over marriage turned precisely on its religious, not civil, definition. When he disagreed with the Church's ecclesiastical verdict binding him to his first marriage, which produced no children, the King did not turn to civil law for a divorce. He instead achieved his goal by founding the Church of England and declaring himself its Supreme Head.
11. Daniel DeVise, More Couples Choose to Wed Their Way, WASH. POST, July 2, 2006, at C1 (noting that "clergy still perform most weddings," rather than purely secular civil authorities, although the gap has narrowed since the 1970s). For example, in 2005, 84.7% of marriages in the District of Columbia and 56.4% of marriages in Maryland were solemnized in religious rather than civil ceremonies. Id.
12. It is no answer to say that personal freedom of belief is preserved if one cannot reflect those beliefs through his religious institution's policies. For millions of Americans, faith is far more than an internal mental exercise - it is an overarching guide for proper living in private, group, and public life.
13. To be sure, there are many constitutional and statutory defenses for religious liberty, and these defenses are based on substantial legal precedents, but an in-depth analysis of the this body of law is beyond the scope of this Article.
14. See generally Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
15. See generally Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Employment Div. v. Smith, 494 U.S. 872 (1990).
16. See McClure v. Salvation Army, 460 F.2d 553, 559-61 (5th Cir. 1972) (reviewing cases in which the U.S. Supreme Court had placed matters of church government and administration beyond regulation of civil authorities, and holding that application of Title VII of the Civil Rights Act of 1964 to employment relationships between ministers and houses of worship involves prohibited intrusion into matters of ecclesiastical concern); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (DC Cir. 1996) (holding that entertaining a professor's sex discrimination claim against a religious university would require the court to excessively entangle itself with religion).
17. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993).
18. Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (holding that the First Amendment prevents New Jersey's public accommodation law from forcing the Boy Scouts to accept homosexual Scout leaders over the Scouts' moral objections).
19. 494 U.S. 872 (1990) (finding government-imposed "substantial burdens" on religious expression need not be justified by compelling interests if arising from "neutral" and "generally applicable" laws).
20. 540 U.S. 712 (2004) (holding that the state's targeted exclusion of devotional theology majors from an otherwise inclusive scholarship program does not violate the Constitution).
21. See infra Part II.B.
22. 539 U.S. 558 (2003).
23. Defense of Marriage Act of 1996, Pub. L. No. 104-199, § 3a, 110 Stat. 2419, (codified at 1 U.S.C. § 7 (2000) and 28 U.S.C. § 1738C (2000)). DOMA defines marriage for federal purposes as being between only one man and one woman; it seeks to prevent the automatic spread of same-sex marriage to unwilling states by way of "married" same-sex couples moving to another state and then seeking legal recognition of their union under the Constitution's Full Faith and Credit Clause. See 28 U.S.C. § 1738C (2000).
24. See infra Appendix A.
25. See, e.g., Anonymous v. Anonymous, 325 N.Y.S.2d 499, 500-01 (N.Y. Sup. Ct. 1971) (finding a marriage between two males null, notwithstanding that one male partner believed the other was a female at time of ceremony and that "she" subsequently had a sex-change operation); In re Estate of Gardiner, 42 P.3d 120, 136-37 (Kan. 2002) (holding that a marriage between a post-operative male-to-female transsexual and a man is void as against public policy). But see M.T. v. J.T., 355 A.2d 204, 211 (N.J. Super. Ct. App. Div. 1976) (holding as valid a marriage between a male and a transsexual who had surgically changed his external sexual anatomy from male to female).
26. See Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (concluding that a marriage statute implicated Hawaii Constitution's Equal Protection Clause), remanded sub nom. Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *18 (Haw. Cir. Ct. 1996) ("The sex-based classification in [Hawaii's marriage statute], on its face and as applied, is unconstitutional and in violation of the Equal Protection Clause of article I, section 5 of the Hawaii Constitution."), aff'd, 950 P.2d 1234 (Haw. 1997), superseded by constitutional amendment, HAW. CONST. art. I, § 23 (amended 1998).
27. See infra Part II.B.
28. See Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *4 (Alaska Super. Ct. Feb. 27, 1998) (concluding opposite-sex marriage statute violated right to privacy provision in Alaska Constitution), superseded by constitutional amendment, ALASKA CONST. art. I, § 25 (amended 1999).
29. See Baker v. State, 744 A.2d 864, 867 (Vt. 1999) (concluding opposite-sex marriage statute violated the Vermont Constitution's common benefits clause).
30. See, e.g., THE JUDGE ADVOCATE GENS. SCH., U.S. ARMY, 263, LEGAL ASSISTANCE FAMILY LAW GUIDE ch.1 at 3-4 (1998) ("[T]he [military] generally follow[s] the [Department of Defense] practice of recognizing a marriage that is valid under the laws of the jurisdiction where it was contracted. Ceremonial marriages are presumed valid . . . . [T]he military will defer to state law on whether a valid marriage exists . . . .").
31. U.S. CONST. art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.").
32. Conceptual problems with this state of affairs are legion. Consider the case where a same-sex spouse dies in a car accident after moving to a traditional marriage state; can the surviving same-sex partner claim the body and inheritance rights? If the accident was due to negligence, can the surviving partner sue for loss of consortium? Conversely, consider the case of a same-sex partner who moves to a traditional marriage state, not to claim marriage benefits, but to avoid marital obligations after a separation. Will that former spouse be required to pay alimony? Will that former spouse be required to pay child support if she is not the biological mother of a child of a same-sex marriage?
33. See 28 U.S.C. § 1738C (2000); 1 U.S.C. § 7 (2000).
34. See HAW. CONST, art. I, § 23 (amended 1998) ("The legislature shall have the power to reserve marriage to opposite-sex couples."); ALASKA CONST. art. I, § 25 (amended 1999) ("To be valid or recognized in this State, a marriage may exist only between one man and one woman.").
35. See Baker, 744 A.2d at 224-25 ("We do not purport to infringe upon the prerogatives of the Legislature to craft an appropriate means of addressing this constitutional mandate.").
36. An Act Relating to Civil Unions, Pub. Act No. 91, § 3 (2000), Vt. Acts and Resolves 72 (codified as amended at VT. STAT. ANN. tit. 15, §§ 1201-1207 (2001)).
37. Litigation stemming from Vermont's early experiences with civil unions (and civil dissolutions) should be illustrative of the litigation to come. See, e.g., Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006) (described supra note 8); see also Rosengarten v. Downes, 802 A.2d 170, 184 (Conn. App. Ct. 2002) (finding that because Connecticut did not recognize civil unions from Vermont, it had no authority to dissolve one); Langan v. St. Vincent's Hosp. of N.Y., 765 N.Y.S.2d 411, 413, 422 (Sup. Ct. 2003) (allowing surviving member of a same-sex couple to sue for wrongful death because they had "lived together as spouses . . . and were joined legally as lawful spouses" through a civil union in Vermont).
38. See Goodridge, 798 N.E.2d at 968 ("The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason."); id. at 958 ("[H]istory must yield to a more fully developed understanding of the invidious quality of the discrimination.").
39. The court's remedial discussion, id. at 968-70, "refined the common law meaning of marriage" to mean "the voluntary union of two persons as spouses, to the exclusion of all others" without expressly retaining any option for the state legislature to adopt a nominally different scheme, on the model of civil unions.
40. There have been at least seven California cases. Six were consolidated and decided in In re Marriage Cases, JCCP No. 4365, 2005 WL 583129 (Cal. Super. Ct. 2005) (holding that California's traditional marriage definition, adopted by public referendum, violates California's Equal Protection Clause), aff'd in part, rev'd in part, 49 Cal. Rptr. 3d 675 (Ct. App. 2006), cert. granted, 149 P.3d 737 (Cal. 2006).
41. See Rosengarten, 802 A.2d at 184; Lane v. Albanese, No. FA044002128S, 2005 WL 896129, at *1, 5 (Conn. Super. Ct. Mar. 18, 2005) (holding that the court lacks subject matter jurisdiction to annul civil, same-sex marriage between couple who, as Connecticut residents, participated in a civil marriage in Massachusetts). In 2005, the Connecticut legislature passed a statute granting same-sex couples "civil union" status while reserving the term "marriage" for the union of couples of the opposite sex. See An Act Concerning Civil Unions, Pub. Act No. 05-10, 2005 Conn. Acts 13 Reg. Sess. (codified as amended at 46 CONN. GEN. STATE ANN. §§ 38aa-ii (West Supp. 2006)), upheld in Kerrigan v. State, 909 A.2d 89 (Conn. 2006).
42. See Wilson v. Ake, 354 F. Supp. 2d 1298, 1309 (M.D. Fla. 2005) (upholding Florida's traditional marriage laws and the federal DOMA).
43. See Morrison v. Sadler, 821 N.E.2d 15, 35 (Ind. App. 2005) ("[T]he Indiana Constitution does not require the governmental recognition of same-sex marriage.").
44. See Varnum v. Brien, No. CV5965 (Iowa Dist. Ct. Dec. 13, 2005), available at http://www.domawatch.org/stateissues/iowa/varnumvbrien.html (follow "Complaint" hyperlink) (challenging denial of marriage licenses to same-sex couples).
45. See Forum for Equality PAC v. McKeithen, 893 So.2d 715, 716 (La. 2005) (up-holding state constitution's "Defense of Marriage" amendment).
46. See Deane v. Conaway, No. 24-C-04-005390, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006) (holding that statute allowing only heterosexual marriage violates Equal Rights Amendment).
47. See Nat'l Pride at Work, Inc. v. Governor of Mich., No. 265870, 2007 WL 313582, at *1, *11 (Mich. App. Feb. 1, 2007) (holding state marriage amendment precluded public employers from extending same-sex domestic partnership benefits).
48. See Citizens for Equal Prot., Inc. v. Bruning, 368 F. Supp. 2d 980, 995, 1002 (D. Neb. 2005) (holding that Nebraska's marriage amendment "imposes significant burdens on both the expressive and intimate associational rights of plaintiffs' members . . . [and] has no rational relationship to any legitimate state interest"), rev'd, 455 F.3d 859 (8th Cir. 2006).
49. Lewis v. Harris, 908 A.2d 196, 220-21 (N.J. 2006) (finding that New Jersey's opposite-sex marriage laws violate the equal protection guarantee of the New Jersey Constitution and ordering same-sex marriage or its equivalent within 180 days). The New Jersey legislature subsequently adopted Vermont-style "civil unions," stopping short of calling the arrangement marriage. N.J. STAT. ANN. § 37:1-31 (West 2007). The Lewis court, however, had already signaled that this option may yet be found unconstitutional in a subsequent suit. See Lewis, 908 A.2d at 221.
50. See Hernandez v. Robles, 794 N.Y.S.2d 579, 604 (Sup. Ct. 2005) (finding "no legitimate State purpose that is rationally served by a bar to same-sex marriage"), rev'd, 805 N.Y.S.2d 354 (App. Div. 2005); cf. Samuels v. N.Y. State Dep't of Health, 811 N.Y.S.2d 136 (App. Div. 2006) (holding that a statute limiting marriage to members of the opposite sex does not discriminate on the basis of gender or violate equal protection or free speech rights); Storrs v. Holcomb, 645 N.Y.S.2d 286 (Sup. Ct. 1996).
51. See Bishop v. Oklahoma, 447 F. Supp. 2d 1239, 1258-59 (N.D. Okla. 2006) (ruling that plaintiffs lack standing to challenge certain provisions of DOMA and Oklahoma marriage amendment, though equal protection and substantive due process challenges were permitted to go forward to summary judgment stage).
52. See Li v. State, No. 0403-03057, 2004 WL 1258167, at *10 (Or. Cir. Ct. Apr. 20, 2004) (holding that Oregon's opposite-sex marriage statutes violate the Rights and Privileges Clause of the Oregon Constitution and that "all [same-sex] marriages that have been performed must be recorded" (emphasis omitted)), rev'd, 110 P.3d 91 (Or. 2005).
53. See Andersen v. King County, No. 04-2-04964-4-SEA, 2004 WL 1738447, at *8 (Wash. Sup. Ct. Aug. 4, 2004) (finding that a prohibition on marriage between same-sex individuals violated the privileges and immunities clause and equal protection clause of the Washington Constitution because "it is circular reasoning, not analysis, to maintain that marriage must remain a heterosexual institution because that is what it historically has been" (quoting Goodridge, 798 N.E.2d at 961 n.23)); see also Castle v. State, No. 04-2-00614-4, 2004 WL 1985215 (Wash. Super. Ct. Sept. 7, 2004) (holding that DOMA violated privileges or immunities clause of state constitution).
54. See In re Kandu, 315 B.R. 123, 148 (Bankr. W.D. Wash. 2004) (dismissing same-sex couple's petition in bankruptcy and holding that "DOMA does not violate the principles of comity, or the Fourth, Fifth, or Tenth Amendments to the U.S. Constitution").
55. See Anglen v. McKinley, No. JAT-05-11, (Jud. App. Trib. Cherokee Nation 2005), available at http://www.lmaw.org/freedom/docs/US%20- %20CherkeeDismissal.pdf (finding that private citizens had no standing to void a same-sex marriage license issued by clerk but not registered by the tribal court).
56. Lewis v. Harris, 908 A.2d 196, 220-21 (N.J. 2006).
57. See In re Marriage Cases, JCCP No. 4365, 2005 WL 583129 (Cal. Super. Ct. Mar. 14, 2005) (holding that California's traditional marriage definition, adopted by public referendum, violates California's Equal Protection Clause), aff'd in part, rev'd in part, In re Marriage Cases, 49 Cal. Rptr. 3d 675 (Ct. App. 2006), cerf. granted, 149 P.3d 737 (Cal. 2006).
58. See U.S. Census Bureau, Population Division, "Table 1: Annual Estimates of the Population for the United States, Regions, and States and for Puerto Rico: April 1, 2000 to July 1, 2006 (NST-EST2006-01)," http://www.census.gov/popest/states/NST-ann-est.html. The population estimates show California's population as approximately 12.18% of the national population; adding Massachusetts with 2.15% of the national population yields a total of 14.33%.
59. Connecticut was the first state to create the functional equivalent of marriage through civil unions without judicial intervention, see CONN. GEN. STAT. §§ 46b-38aa-gg (2005), and remains the only state to do so. Even so, Connecticut still faces a same-sex marriage challenge. See Deane v. Conaway, 2006 WL 148145 (Md. Cir. Ct. Jan. 20, 2006).
60. See U.S. Census Bureau, supra note 58.
61. See supra notes 41, 44, 46, 51.
62. The Goodridge court relied most heavily on Lawrence v. Texas, 539 U.S. 558 (2003) (striking down all laws criminalizing homosexual sodomy for lack of rational justification). See also Romer v. Evans, 517 U.S. 620 (1996) (striking down state constitutional amendment prohibiting the definition of a specially-protected class based on sexual orientation as a violation of equal protection).
63. The Netherlands, Belgium, Spain, Canada, and South Africa have legalized same-sex marriage, while Croatia, Denmark, England, Finland, France, Germany, Hungary, Iceland, New Zealand, Norway, Portugal, Scotland, Sweden, and Wales provide the functional equivalent of marriage to same-sex couples. See Int'l Gay & Lesbian Human Rights Commission, Where You Can Marry: Global Summary of Registered Partnership, Domestic Partnership, and Marriage Laws (Nov. 2003), http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=91. But see French High Court Rejects Gay Marriage, GUARDIAN UNLIMITED (London), Mar. 14, 2007, available at http://www.guardian.co.uk/worldlatest/story/0,-6478741,00.html.
64. Same-sex marriage "incrementalists" have used a variety of approaches to erode resistance to same-sex marriage. Most notably, they have petitioned for legal recognition of their unions as legal "families" fully equivalent to heterosexual ones. See, e.g., Elisa B. v. Emily B., 117 P.3d 660, 666 (Cal. 2005) (holding that a lesbian who helped raise partner's children, but did not adopt, is considered a parent to the children and stating that "[w]e perceive no reason why both parents of a child cannot be women."); In re the Parentage of L.B., 122 P.3d 161, 177 (Wash. 2005) ("[H]enceforth in Washington, a de facto [same-sex] parent stands in legal parity with an otherwise legal parent, whether biological, adoptive or otherwise."); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (finding that a former domestic partner, who was not a biological parent, to be a "psychological parent" and entitled to child visitation rights). But see In re Bonfield, 780 N.E.2d 241 (Ohio 2002) (concluding that a cohabiting same-sex partner of biological mother was not a parent).
65. Legislatively, incrementalists have lobbied municipal and state government to provide an array of partner benefits approaching marriage through "domestic partner" laws which grant, for example, government employee health insurance benefits and inheritance rights. See Maine Domestic Partner Registry, 22 M.R.S.A. § 2710; New York City Domestic Partners Law, NYC Admin. Code § 3-240 et seq.; DC Health Care Benefits Expansion Act, DC Law 9-114 (codified at D.C. CODE § 32-701 et seq. (2001)). The most notable examples are Connecticut, which grants full civil union status, see supra note 59, and California, which granted domestic partners all the benefits of marriage excepting joint tax filing and state solemnizing of partnerships. See CAL. FAMILY CODE § 297.5a (Deering 2006). Maryland's proposed domestic partner law was vetoed.
66. See John Wagner, Ehrlich Vetoes Bill Extending Rights to Gay Couples, WASH. POST, May 21, 2005, at A1.
67. See Lockyer v. City and County of San Francisco, 95 P.3d 459 (Cal. 2004) (issuing a writ of mandate against San Francisco's mayor preventing issuance of additional same-sex marriage licenses and voiding 4,000 already issued); Hebel v. West, 803 N.Y.S.2d 242 (App. Div. 2005) (enjoining mayor of New Paltz, New York from issuing any additional marriage licenses to homosexual partners); Li v. State, 110 P.3d 91 (Or. 2005) (holding that officials in Multnomah County, Oregon, did not have the authority to issue marriage licenses for 3,000 same-sex couples); T.R. Reid, Glad to Be Wed, If Only One Day; Opposing Edicts Leave N.M. Gays' Nuptials in Legal Limbo, WASH. POST, Feb. 22, 2004, at A13 (noting the issuance of same-sex marriage licenses by Sandoval County, New Mexico);
68. San Jose Recognizes Gay Marriage, CHICAGO TRIB., Mar. 10, 2004, § 1, at 16 (noting that San Jose would recognize gay marriages performed in other jurisdictions).
69. For a continuously updated catalog of same-sex marriage laws by state, see The Heritage Foundation, Marriage in the 50 States, http://www.heritage.org/ Research/Family/Marriage50States.cfm (last visited on Mar. 15, 2007); see also Stateline.org, State Policies on Same-Sex Marriage, http://www.stateline.org/live/digitalAssets/310_GayMarriageChart.pdf (last visited on Mar. 15, 2007). These two statutes or constitutional amendments are sometimes called "state DOMAs."
70. 1 U.S.C. § 7 (1996).
71. Congress fears that judges will find that the U.S. Constitution's Full Faith and Credit Clause requires states to recognize same-sex marriages contracted out of state even if such marriages cannot be contracted in state. Cf. generally RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 283(2) (1971) ("A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognized as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage . . . .").
72. 28 U.S.C. § 1738C (1996).
73. See, e.g., Hennefeld v. Twp. of Montclair, 22 N.J. Tax 166, 187 (Tax Ct. 2005) ("New Jersey cannot be mandated to accept more of another state's law [Vermont], with regard to same-sex relationships, than New Jersey's Legislature intended. To hold otherwise would offend the spirit, intent, and substance of DOMA."). But see Godfrey v. Spano, No. 16894/06, 2007 WL 749692, 2007 N.Y. Slip Op. 27105 (Sup. Ct. Mar. 12, 2007) (dismissing taxpayer suit against a New York County Executive who issued an executive order officially "recognizing" samesex marriages contracted out of state).
74. See, e.g., LAURENCE H. TRIBE, 1 AMERICAN CONSTITUTIONAL LAW 1247 n.49 (3d ed. 2000) (arguing that DOMA violates the Full Faith and Credit Clause);
75. Mark Strasser, Baker and Some Recipes for Disaster: On DOMA, Covenant Marriages, and Full Faith and Credit Jurisprudence, 64 BROOK. L. REV. 307 (1998) (arguing that the Full Faith and Credit and Due Process Clauses preclude the enactment of DOMA and prevent states from refusing to recognize marriages validly entered into in other states);
76. see also Andrew Koppelman, Dumb and DOMA: Why the Defense of Marriage Act is Unconstitutional, 83 IOWA L. REV. 1 (1997);
77. Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965 (1997);
78. Mark Strasser, Marriage, Transsexuals, and the Meaning of Sex: On DOMA, Full Faith and Credit, and Statutory Interpretation, 3 HOUS. J. L. & POL'Y 301 (2003).
79. See In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (dismissing constitutional challenge of DOMA by a lesbian couple married in Canada seeking federal spousal bankruptcy rights); Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (finding DOMA "constitutionally valid" where a same-sex couple that married in Massachusetts challenged DOMA's constitutionality in their home state of Florida); Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (CD. Cal. 2005) ("DOMA [defining 'marriage' as 'a legal union between one man and one woman'] does not violate the equal protection or due process guarantees of the Fifth Amendment."), aff'd in part, rev'd in part, 447 F.3d 673 (9th Cir. 2006).
80. Elaine Silvestrini, Appeals Dropped On Gay Marriage, TAMPA TRIB., Jan 26, 2005, at 1 (noting voluntary dismissals of challenges to the federal DOMA and quoting an activist as saying, "We are all trying to avoid being in federal court . . . . Now does that mean forever? No . . . we've got to do the work to get ready for a case to be a win . . . .");
81. see also Developments in the Law - The Law of Marriage and Family, 116 HARV. L. REV. 1996, 2004-27 (2003).
82. Anti-death penalty advocates successfully followed an analogous "states first" strategy which recently culminated in a significant victory against the juvenile death penalty. See Roper v. Simmons, 543 U.S. 551, 564-67 (2005). In examining the new "trend" against the juvenile death penalty, the Roper Court opined that "it is not so much the number of these States that is significant, but the consistency of the direction of change." Id. at 566 (citing Atkins v. Virginia, 536 U.S. 304, 315 (2002)).
83. See supra note 37 (discussing several such "hard cases").
84. Indeed, there may be no limit to a court's creativity on this issue if it seeks a particular result. See, e.g., United States v. Costigan, 2000 WL 898455, at *4 n.10 (D. Me. June 16, 2000) ("Through the passage of the Defense of Marriage Act ('DOMA'), Congress has defined the term spouse to refer only to persons of the opposite sex. Thus, a gay partner is not a 'spouse or former spouse.' However, Congress' definition does not clearly foreclose the finding that a member of a same sex couple may be cohabiting 'as a spouse.'") (citations omitted) (emphasis added).
85. 539 U.S. 558 (2003); see also Romer v. Evans, 517 U.S. 620, 634 (1996) (using the Equal Protection Clause to strike down a state constitutional amendment deemed "born of animosity" for prospectively removing homosexuality as a protected class under state law).
86. Lawrence, 539 U.S. at 578-79. Interestingly, the Court hesitated to establish a fundamental right to homosexual conduct, but instead struck down the statute for failing rational basis review. See id. at 586 (Scalia, J., dissenting) ("[N]owhere does the Court's opinion declare that homosexual sodomy is a 'fundamental right . . . .'").
87. Id. at 578 (majority opinion) ("The present case . . . does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.").
88. Id. at 604-05 (Scalia, J., dissenting) (citations omitted).
89. See Goodridge, 798 N.E.2d at 948.
90. See, e.g., Lawrence, 539 U.S. at 574 ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.") (quoting Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)).
91. Id. at 577 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
92. Id. at 567.
93. See, e.g., United States Conference of Catholic Bishops, Between Man and Woman: Questions and Answers About Marriage and Same-Sex Unions (Nov. 12, 2003), http://www.nccbuscc.org/laity/manandwoman.shtml ("Marriage, whose nature and purposes are established by God, can only be the union of a man and a woman and must remain such in law.").
94. See id. ("To uphold God's intent for marriage, in which sexual relations have their proper and exclusive place, is not to offend the dignity of homosexual persons. Christians must give witness to the whole moral truth and oppose as immoral both homosexual acts and unjust discrimination against homosexual persons.").
95. Proposals to ban such sexual orientation discrimination under Title VII have been rejected by Congress repeatedly. See Employment Non-Discrimination Act of 2001, S. 1284, 107th Cong., 1st Sess. (2002); Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975).
96. See HUMAN RIGHTS CAMPAIGN, STATE OF THE WORKPLACE REPORT 2005-2006, at 12 (2006), available at http://www.hrc.org/Template.cfm?Section= Get_Informed2&CONTENTID=32936&TEMPLATE=/ContentManagement/ ContentDisplay.cfm.
97. The argument, put simply, is that if Cindy and Bill both seek to marry Jane, only Cindy would face dismissal for actually marrying her on account of Cindy's sex. Cf. Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) (finding that the city police department violated a homosexual transvestite officer's rights under Title VII by demoting officer on the basis of sexual stereotyping; the city was ordered to pay the employee $320,000 in addition to $550,000 in attorney fees and costs), cert. denied, 126 S. Ct. 624 (2005).
98. For citations to all 20 statutes, see Unmarried America, State StatutesProhibiting Marital Status Discrimination in Employment, http://www.unmarriedamerica.org/ms-employment-laws.htm (last visited Mar. 15, 2007).
99. See id.
100. See 42 U.S.C. § 2000e-1(a) (2000) (creating a statutory exemption to Title VII permitting religious organizations to define their religious character through their employment practices). This exemption was upheld in Lown v. Salvation Army, 393 F. Supp. 2d 223, 246 (S.D.N.Y. 2005) ("The broad language of the federal exception bars all of plaintiffs' Title VII claims. The narrower language of the state and city exceptions precludes plaintiffs' discrimination claims, but not their retaliation claims. Application of none of the exceptions runs afoul of the Constitution.").
101. See, e.g., MASS. GEN. LAWS ch. 151B § 1(5) (2004) ("[N]othing [in these antidiscrimination laws] shall be construed to bar any religious or denominational institution or organization . . . from giving preference in hiring or employment to members of the same religion or from taking any action with respect to matters of employment, discipline, faith, [or] internal organization . . . which [is] calculated by such organization to promote the religious principles for which it is established or maintained."); N.Y. EXEC LAW § 296(11) (McKinney 2005) ("Nothing contained in this [anti-discrimination law] shall be construed to bar any religious or denominational institution or organization . . . from limiting employment . . . to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained."); CITY OF N.Y., N.Y. ADMIN. CODE & CHARTER § 8-107(12) (2003) (same).
102. For a comprehensive list of state-by-state employment anti-discrimination statutes and their applicable religious exemptions, see Religious Institutions Practice Group, Sidley Austin Brown & Wood, Religious Employer Exemptions: A State by State Guide, http://www.sidley.com/db30/cgi-bin/pubs/ final_religious%20institutions%20practice%20group.pdf (last visited Mar. 15, 2007).
103. Of course, state legislatures cannot repeal federal constitutional protections for religious freedom; but, as stated earlier, a full analysis of federal constitutional law is beyond the scope of this Article.
104. For example North Carolina and Virginia have no religious exemptions to their anti-discrimination statutes at all. See Equal Employment Practices Act (codified at N.C. GEN. STAT. §§ 143-416.1-422.2 (2006)); Virginia Human Rights Act (codified at VA. CODE ANN. § 2.2-2639 (2006)).
105. See, e.g., McClure v. Sports & Health Club, 370 N.W.2d 844 (Minn. 1985) (holding employer liable for marital status discrimination for refusing to hire co-habiting job applicants due to sincere religious beliefs despite statutory religious exemption).
106. No. MC 93-21375, 1994 WL 315620 (Minn. Dist. Ct. June 3, 1994), aff'd 527 N.W.2d 107 (Minn. Ct. App. 1995).
107. Id. at *5.
108. Id. at *9.
109. 482 N.W.2d 121 (Wis. Ct. App. 1992).
110. Id. at 123 (rejecting a lesbian's claim that her employer unlawfully discriminated against her for failing to extend spousal benefits to her lesbian partner).
111. Alaska Civil Liberties Union v. State, 122 P.3d 781 (Alaska 2005) (holding that a state employer's exclusion of same-sex couples from "spousal" health insurance benefits violates Alaska's Equal Protection Clause despite that 1998 marriage amendment); see also Tumeo v. Univ. of Alaska, No. 4FA-94-43 Cir., 1995 WL 238359 (Alaska Super. Ct. Jan. 11, 1995) (finding "marital status discrimination" in university's denial of health insurance coverage for same-sex partners), aff'd sub nom Univ. of Alaska v. Tumeo, 933 P.2d 1147 (Alaska 1997).
112. Koebke v. Bernardo Heights Country Club, 115 P.3d 1212 (Cal. 2005).
113. Catholic Charities of Maine, Inc. v. City of Portland, 304 F. Supp. 2d 77 (D. Me. 2004) (forcing religious charity to extend employee spousal benefit programs not preempted by ERISA to registered same-sex couples or else lose access to all city housing and community development funds).
114. See Smith v. Fair Employment & Housing Comm'n, 913 P.2d 909 (Cal. 1996) (finding no substantial burden on religion in forcing landlord to rent to unmarried couples despite sincere religious objections because the landlord could avoid the burden by exiting the rental business); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 282 (Alaska 1994) (per curiam) (holding that compelling state interests support the prohibitions on marital status discrimination in housing over federal and state Free Exercise objections). But see State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990) (stressing that state constitutional protection of religious conscience exempted landlord from ban on marital status discrimination in housing); Att'y Gen. v. Desilets, 636 N.E.2d 233, 240 (Mass. 1994) (clarifying that state's prohibition of marital status discrimination in housing could not, by itself, overcome "the substantial burden on the defendants' free exercise of religion" where defendants refused to rent to an unmarried couple, but leaving open the possibility of such a finding in particular cases).
115. In fact, married couples would seem to merit stronger protection since public policy generally favors marriage as an institution.
116. 96 N.E.2d 1099 (N.Y. 2001).
117. Id. at 1101-02. The students' marital status discrimination claim was dismissed. Id. at 1101. Curiously, it does not appear that Yeshiva University, a Jewish school, raised any religious liberty defenses. See id. at 1101 n.1.
118. Courts could not turn to federal law as no federal remedy exists for marital status or sexual orientation discrimination in housing. See 42 U.S.C. §§ 3602(k), 3604; see also Swanner v. Anchorage Equal Rights Comm'n., 513 U.S. 979, 981 (1994) (Thomas, J., dissenting from denial of cert.) ("[T]he federal Fair Housing Act does not prohibit people from making housing decisions based on marital status.").
119. See, e.g., supra note 89.
120. See infra notes 119-25.
121. For an extended list of state antidiscrimination codes, see Brief for Becket Fund for Religious Liberty et al. as Amid Curiae Supporting Petitioners at 4 n.5; Boy Scouts v. Wyman, 541 U.S. 903 (2004) (No. 03-956), available at http://www.becketfund.org/litigate/boyscoutsvwyman-amicus.pdf.
122. The minority includes California, Connecticut, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia. See Human Rights Campaign Foundation, Non-Discrimination Laws: State by State, http://www.hrc.org/Template.cfm?Section=Get_In-formed2&Template=/ TaggedPage/TaggedPageDisplay.cfm&TPLID=66&ContentID=20650 (last visited Mar. 20, 2007).
123. See, e.g., ARIZ. REV. STAT. ANN. § 41-1492.07 (2004); IDAHO CODE ANN. § 67-5910(1) (2006); KAN. STAT. ANN. § 44-1002(h) (2000); N.Y. EXEC LAW § 292(9) (McKinney 2005 and Supp. 2007) ("[A] corporation incorporated under . . . the religious corporations law shall be deemed to be in its nature distinctly private."); Id. § 296(11) (McKinney 2005 and Supp. 2007) ("Nothing contained in this section shall be construed to bar any religious or denominational institution or organization . . . from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.").
124. See, e.g., CONN. GEN. STAT. § 46a-64(b)(4) (2005) (exempting nursing homes "owned, operated by or affiliated with a religious organization"); IOWA CODE § 216.12(1) (2000) (exempting housing); ME. REV. STAT. ANN. tit. 5, § 4573-A (2002) (stating that the anti-discrimination statute does not prohibit any "religious corporation, association, educational institution or society from giving preference in employment to individuals of its same religion"); N.J. STAT. ANN. § 10:5-5(1) (West Supp. 2006) (exempting "any educational facility operated or maintained by a bona fide religious or sectarian institution"); UTAH CODE ANN. § 13-7-2 (2005) (exempting "any institution, church, any apartment house, club, or place of accommodation which is in its nature distinctly private except to the extent that it is open to the public"); WASH. REV. CODE § 49.60.040(10) (2006) (exempting "any educational facility, columbarium, crematory, mausoleum, or cemetery operated or maintained by a bona fide religious or sectarian institution").
125. See infra Appendix B. For a comprehensive list of state-by-state employment anti-discrimination statutes and their applicable religious exemptions, see Sidley Austin Brown & Wood, supra note 95.
126. See infra Appendix C.
127. See supra note 113.
128. See World Net Daily, Lesbians Target Innkeeper Over Same-sex Wedding (June 30, 2005), http://worldnetdaily.com/news/article.asp?ARTICLE_ID= 45073 (noting a lesbian couple's use of Vermont's public accommodations law to sue the owners of a small inn for expressing concern that, as Roman Catholics, they would have moral difficulty hosting a same-sex civil union on their premises); see also, Smith v. Knights of Columbus, 2005 BCHRT 544 (B.C. Human Rights Trib. 2005) (fining Catholic fraternal organization for refusing to rent a hall for use for a same-sex couple's wedding reception).
129. See Dale v. Boy Scouts of America, 734 A.2d 1196 (N.J. 1999) (clarifying that the Boy Scouts are sufficiently open to the public to qualify as a place of public accommodation), rev'd on other grounds, Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); see also Chicago Area Council of Boy Scouts of Am.v. City of Chicago Comm'n on Human Relations, 748 N.E.2d 759, 769 (III. App. Ct. 2001) (finding that narrowly tailored injunction based on public accommodations law may issue if applicants are denied "nonexpressive" positions in the Boy Scouts because of homosexuality). But see Welsh v. Boy Scouts of Am., 993 F.2d 1267 (7th Cir. 1993) (holding that the Boy Scouts are not a place of public accommodation); Curran v. Mount Diablo Council of the Boy Scouts of Am., 952 P.2d 218 (Cal. 1998) (same); Seabourn v. Coronado Area Council, Boy Scouts of Am., 891 P.2d 385 (Kan. 1995) (same); Schwenk v. Boy Scouts of America, 551 P.2d 465 (Or. 1976) (same); see also Boy Scouts of Am. v. D.C. Comm'n on Human Rights, 809 A.2d 1192, 1193-94 (D.C. 2002) (finding that Boy Scouts v. Dale prevented the District of Columbia from requiring the Boy Scouts to grant avowed homosexuals memberships, obviating the need to determine if the Scouts qualified as a public accommodation).
130. 734 A.2d at 1210.
131. Id. at 1211.
132. See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).
133. See id. at 656 (stating that application of public accommodations law "runs afoul of the Scouts' freedom of expressive association").
134. Cf. Nathanson v. MCAD, 16 Mass. L. Rptr. 761, 765 (Super. Ct. 2003) (holding that an ostensibly "private" law firm fell under public accommodations regulations notwithstanding the firm's free speech concerns).
135. New Jersey specifically exempts religious educational facilities, but not religious institutions generally, from its public accommodations law. Many other jurisdictions do not even go that far in exempting religious institutions. See supra note 114.
136. 536 A.2d 1 (D.C. 1987) (en banc).
137. Id. at 5.
138. See id. at 39.
139. See id. at 21.
140. See id. at 38.
141. 206 Cal. Rptr. 866, 877 (Ct. App. 1984).
142. 85 P.3d 67 (Cal. 2004) (denying a religious charity a "religious employer" exemption from employment discrimination laws).
143. Id. at 292 (emphasis added) (quoting CAL. HEALTH & SAFETY CODE § 1367.25(b)).
144. Id. at 313.
145. Id. at 312.
146. See MASS. GEN. LAWS ch. 176B, § 4W(b) (2002).
147. See Catholic Charities of Diocese of Albany v. Serio, 859 N.E.2d 459 (N.Y. 2006).
148. Goodridge, 798 N.E.2d at 959-69.
149. See Christopher Chorba, The Danger of Federalizing Hate Crimes, 87 U. VA. L. REV. 319, 347-48 nn.130-32 (cataloging hate crimes statutes and penalty enhancements in 46 states).
150. See Human Rights Campaign, Statewide Hate Crimes Laws, http://www.hrc.org/Template.cfm?Section=Your_Community&Template=/ ContentManagement/ContentDisplay.cfm&ContentID=19445 (last visited on Mar. 15, 2007).
151. Pennsylvania's hate crimes statute, 18 PA. CONS. STAT. § 2710, bans "ethnic intimidation" (that is, hate speech) on the basis of sexual orientation if the message is "motivated by hatred;" Massachusetts' hate speech law, MASS. GEN. LAWS 151B § 4(4)(A), makes it unlawful to "intimidate" another person in the "exercise or enjoyment" of the right to be free from sexual orientation discrimination in employment and housing, but currently exempts religious institutions. See MASS. GEN. LAWS 151B §§ 1(5), 4(18).
152. In 2004, an organized group of Christians was arrested for "ethnic intimidation" under hate crimes laws for peacefully protesting at a Philadelphia gay pride event even though the event was open to the public and held on city streets and sidewalks. Although the criminal hate crime charges against the protesters were eventually dismissed, the protesters' subsequent civil suit against the city for violations of their civil rights was also dismissed. See Startzeil v. City of Philadelphia, No. 05-05287, 2007 WL 172400, at *6 (E.D. Pa. Jan. 18, 2007) (slip op.) (finding that "once the City issued a permit to Philly Pride for OutFest, it was empowered to enforce the permit by excluding persons expressing contrary messages").
153. See Stacey v. Campbell et al., 2002 BCHRT 35 (B.C. Human Rights Trib. 2002) (permitting a suit under hate crimes law against a pastor who was brought before the British Columbia Human Rights Tribunal for "express[ing] his view of religious teachings concerning homosexuality" in a paid newspaper ad).
154. Racial and Religious Hatred Act, 2006, c. 1 (Gr. Brit.) (outlawing "stirring up hatred against a person" on religious or racial grounds), available at http://www.opsi.gov.uk/acts/acts2006/20060001.htm.
155. See Islamic Council of Victoria v. Catch the Fire Ministries, VCAT No. A392/2002 (Vict. Civ. Adm. Trib. Dec. 17, 2004) (finding pastor liable for "vilifying" Islam during a religious seminar), vacated and remanded by Catch the Fire Ministries, Inc. v. Islamic Council of Victoria, Inc., [2006] VSCA 284 (Dec. 14, 2006), available at http://www.austlii.edu.au/ au/cases/vic/VSCA/2006/284.html.
156. See Riksåklagaren v. ÅG, No. B-1050-05, [HD] [Supreme Court], Nov. 29, 2005 (Sweden), (overturning Swedish Pentecostal minister's sentence to prison for "inciting hatred" against homosexuals after reciting Biblical condemnations of homosexuality in a sermon).
157. 289 F.3d 648 (10th Cir. 2002).
158. See e.g., Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1179-80 (2006) (holding that a student's religious speech opposing school support of homosexuality could be banned as such "injurious remarks" "intrude[] upon . . . the rights of other students"), appeal dismissed as moot and decision vacated by 2007 WL 632768 (U.S. Mar. 5, 2007).
159. Charitable choice is now part of at least three federal social service programs. See Welfare Reform Act of 1996, 42 U.S.C. § 604 (2000); Community Services Block Grant Act of 1998, 42 U.S.C. § 9920 (2000); and the Children's Health Act of 2000, 42 U.S.C. 300x-65 (2006). Additionally, President George W. Bush has issued supplemental Executive Orders. See Exec. Order No. 13,199, 66 Fed. Reg. 8,499 (Jan. 29, 2001) (creating the White House Office of Faith-Based & Community Initiatives); Exec. Order No. 13,279, 67 Fed. Reg. 77,141 (Dec. 12, 2002) (requiring equal protection for faith-based and community organizations in the distribution or reception of federal financial assistance in social service programs); see also Lambda Legal, The Continuing Push to Give Tax Dollars to Religious Organizations: Why It's So Dangerous (May 3, 2004), http://www.lambdalegal.org/our-work/ publications/facts-backgrounds/page.jsp?itemID=31989074.
160. 461 U.S. 574 (1983).
161. Id. at 604 (emphasis added).
162. Goodridge, 798 N.E.2d at 958 (emphasis added).
163. The court even went so far as to say that government sanction of discrimination by sexual orientation "demeans basic human dignity." See id. at 958 n.17.
164. This omission is unsurprising since this precise question was not before the Goodridge court.
165. See Bob Jones Univ., 461 U.S. at 592; cf. Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000) (affirming the IRS's revocation of a church's tax exempt status due to intervention in a political campaign through paid newspaper advertising).
166. Richard A. Epstein, Letter to the Editor, Same-Sex Union Dispute: Right Now Mirrors Left, WALL ST. J., July 28, 2004 at A13 ("[P]rivate churches losing their tax exemptions for their opposition to homosexual marriages . . . are among the very dangers from the left against which I warned.").
167. 465 U.S. 555 (1984); see also id. at 579 (Powell, J., concurring) ("[T]he Department [of Education] has prevailed, having taken this small independent college, which it acknowledges has engaged in no discrimination whatever, through six years of litigation with the full weight of the federal government opposing it. I cannot believe that the Department will rejoice in its 'victory.'"). The U.S. Congress has since provided a legislative correction to the Department of Education's and the Supreme Court's interpretation of Title LX. See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988) (codified at 20 U.S.C. § 1687).
168. Exec. Order No. 13, 160, § 1-102, 65 Fed. Reg. 39,775 (June 23, 2000) ("No individual, on the basis of race, sex, color, national origin, disability, religion, age, sexual orientation, or status as a parent, shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination in, a Federally conducted education or training program or activity.").
169. See Locke v. Davey, 540 U.S. 712 (2004) (permitting state to revoke a student's educational scholarships after the student beneficiary chose devotional theology as a major).
170. See supra notes 97-98 and accompanying text.
171. See Patricia Wen, Archdiocesan Agency Aids in Adoptions by Gays, BOSTON GLOBE, Oct. 22, 2005, at A1 (reporting on Catholic Charities being forced to "choose between its mission of helping the maximum number of foster children possible and conforming to the Vatican's position on homosexuality").
172. See Maggie Gallagher, Banned in Boston, The Coming Conflict between Same-sex Marriage and Religious Liberty, WKLY. STANDARD, May 15, 2006, available at http://www.weeklystandard. com/Content/Public/Articles/000/000/012/191kgwgh.asp.
173. See Under 21 v. City of New York, 481 N.Y.S.2d 632, 643 (Sup. Ct. 1984) (noting that, in the context of private government service providers, government cannot provide funds to support or encourage the discriminatory conduct of others, including discrimination against homosexuality).
174. 393 F. Supp. 2d 223 (S.D.N.Y. 2005) ("The broad language of the federal exception bars all of plaintiffs' Title VII claims. The narrower language of the state and city exceptions precludes plaintiffs' discrimination claims, but not their retaliation claims. Application of none of the exceptions runs afoul of the Constitution.").
175. See Title VII § 702, 42 U.S.C. § 2000e-1(a) (2000) (the "federal exception"); N.Y. EXEC. LAW § 296(11) (1995) (the "state exception"); N.Y.C. ADMIN. CODE 8-107(12) (1991) (the "city exception").
176. See Barnes-Wallace v. Boy Scouts of America, 275 F. Supp. 2d 1259 (S.D. Cal. 2003) (revoking use of publicly leased park land to avoid violating the Establishment Clause based on the Scouts' required belief in God).
177. See Evans v. City of Berkeley, 127 Cal. Rptr. 2d 696 (Ct. App. 2002) (affirming revocation of a boat berth subsidy at public marina due to Scouts' exclusion of atheists and homosexuals), aff'd, 129 P.3d 394 (Cal. 2006).
178. See Boy Scouts of Am., S. Fa. Council v. Till, 136 F. Supp. 2d 1295 (S.D. Fla. 2001) (preliminarily enjoining a school board from continuing to exclude the Boy Scouts from school facilities based on their anti-gay viewpoint).
179. See Boy Scouts of Am. v. Wyman, 335 F.3d 80 (2d Cir. 2003) (holding that the Boy Scouts may be excluded from the state's workplace charitable contributions campaign for denying membership to homosexuals).
180. At least in the public school context, the Boy Scouts and religious groups have secured some legislative protection for faculties access. See Boy Scouts of America Equal Access Act, 20 U.S.C.A. § 7905 (2000); Equal Access Act, 20 U.S.C.A. §§ 4071-4074 (2000); see also Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 859 (2d Cir. 1996) (holding that a school district could not bar access to after-school facilities to a Bible club for limiting their leadership to Christians only, for "the [Equal Access] Act contains an implicit right of expressive association when the goal of that association is to meet for a purpose protected by the Art"); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (clarifying that the government could not withhold funds from university student groups that express overtly religious viewpoints).
181. "We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage . . . a wholly secular institution." Goodridge, 798 N.E.2d at 954. According to the court, "there are three partners to every civil marriage: two willing spouses and an approving State." Id. "In short, for all the joy and solemnity that normally attend a marriage, governing entrance to marriage, is a licensing law." Id. at 952 (emphasis added and internal citations omitted).
182. See, e.g., Gould v. Gould, 61 A. 604, 610 (Conn. 1905) (Hammersley, J., concurring) (noting that clergymen were first authorized to join persons in marriage for civil law purposes in Connecticut in 1694 and that the policy had remained unchanged).
183. See, e.g., MASS. GEN. LAWS ch. 207 § 45 (2004) ("The record of a marriage made and kept as provided by law by the person by whom the marriage was solemnized, . . . shall be prima facie evidence of such marriage."); MASS. GEN. LAWS ch. 207 § 38 (2004) (requiring that civil marriage be solemnized only by priests, deacons, rabbis, imams, ministers of the Gospel, various other religious officiants, and justices of the peace).
184. Some state legislation prohibits officials conducting marriage ceremonies from discriminating in certain ways. The Texas Family Code, for example, forbids persons authorized to conduct a marriage ceremony - including religious officials - "from discriminating on the basis of race, religion, or national origin." See TEX. FAM. CODE ANN. § 2.205 (2006). Marriage codes such as Texas' could easily be amended to include a prohibition on discrimination based on sex or sexual orientation and made to apply to all persons authorized to solemnize civil marriage.
185. Brady v. Dean, 790 A.2d 428, 435 (Vt. 2001).
186. Pam Belluck, Massachusetts Arrives at Moment for Same-Sex Marriage, N.Y. TIMES, May 17, 2004, at A16.
187. See Alan Dershowitz, To Fix Gay Dilemma, Government Should Quit the Marriage Business, L.A. TIMES, Dec. 3, 2003, at B15 (advocating complete separation of civil and religious aspects of marriage).
188. A lawsuit requesting that a court directly order an unwilling religious institution to perform a same-sex marriage is almost certain to fail under the Free Exercise Clause. However, lawsuits alleging improper application of religious law and doctrine are not unprecedented. In Hutchison v. Thomas, 789 F.2d 392 (6th Qr. 1986), for example, a pastor sued his church for "improperly appl[ying] provisions of The Discipline of the United Methodist Church, governing the appointment and placement of ministers."
189. "This generation does not have a monopoly on either knowledge or wisdom. Before abandoning fundamental values and institutions, we must pause and take stock of our present social order." State by Cooper v. French, 460 N.W.2d 2, 11 (Minn. 1990).