Vows to collide: The burgeoning conflict between religious institutions and same-sex marriage antidiscrimination laws

University of Pennsylvania Law Review

Volumn 158, Issue 1, 2009, Pages 179-230

  Bold Jr , Fredric J ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 74049126016     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (275)

1. In re Marriage Cases, 183 P.3d 384,451-52 (Cal. 2008).
2. Leo H. Carney, Ocean Grove Tries to Keep Its Old Charm in New Times, N.Y. TIMES, June 29, 1986, at NJ1 (quoting the charter of the Ocean Grove Camp Meeting Association).
3. Op. NJ. Att'y Gen., Div. on Civil Rights, No. PN34XB-03008 (Dec. 29, 2008), available at http://www.nj.gov/oag/newsreleases08/pr20081229a- Bemstein-v-06CMA.pdf;
4. see also Associated Press, Lesbian Pair Wins Ruling over Refusal of Ceremony, N.Y. TIMES, Dec. 30, 2008, at A22 (reporting on the New Jersey ruling that Ocean Grove's refusal to host a lesbian wedding ceremony was a violation of anti-discrimination laws).
5. After this ruling, Ocean Grove filed suit in federal district court seeking declaratory and injunctive relief, asserting that the state acceptance and investigation of antidiscrimination suits violated Ocean Grove's First Amendment rights. Ocean Grove Camp Meeting Ass'n of the United Methodist Church v. Vespa-Papaleo, No. 07-3802, 2007 WL 3349787, at *2 (D.N.J. Nov. 7, 2007). The district court dismissed the case based on abstention principles.
6. Id. at *6. On appeal, the United States Court of Appeals for the Third Circuit remanded the case to the federal district court to decide Ocean Grove's request for declaratory relief clarifying its rights as to the use of the rest of its property. Ocean Grove Camp Meeting Ass'n of the United Methodist Church v. Vespa-Papaleo, Nos. 07-4253, 07-4543, 2009 WL 2048914, at *l-2 (3d Qr. July 15, 2009).
7. See, e.g., Defense of Marriage Act (DOMA), 1 U.S.C. §7 (2006) (defining marriage as "a legal union between one man and one woman");
8. U.S.C. §1738C (2006) (providing that states need not give effect to laws in other states providing for same-sex marriage). For information on state DOMAs, see infra note 85.
9. See Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (holding that the state's definition of marriage requiring that couples be of the opposite sex implicated the state's Equal Protection Clause), reh'g granted in part, 875 P.2d 225 (Haw. 1993), remanded sub nom. Baehr v. Miike, No. 91-1394, 1996 WL 694235, at *18 (Haw. Cir. Ct. 1996) (striking down the state's opposite-sex definition of marriage on Equal Protection grounds and finding neither a compelling state interest nor narrow tailoring), affd, 950 P.2d 1234 (Haw. 1997), superseded by constitutional amendment, HAW. CONST, art. I, §23 (amended 1998).
10. See Brause v. Bureau of Vital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, at *4-5 (Alaska Super. Ct Feb. 27, 1998) (applying strict scrutiny standard to opposite-sex marriage laws and finding "the decision to choose one's life partner [is] a fundamental right"), superseded by constitutional amendment, ALASKA CONST, art. I, §25 (amended 1999).
11. See Baker v. State, 744 A.2d 864, 867 (Vt 1999) (holding that the State was "constitutionally required to extend to same-sex couples the common benefits and protections" of marriage but allowing the legislature to determine the name and form of the protection).
12. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 968 (Mass. 2003) ("The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.").
13. See Lewis v. Harris, 908 A.2d 196, 220-21, 224 (N.J. 2006) (holding that state opposite-sex marriage laws violate New Jersey equal protection rights and providing a 180-day deadline for establishing same-sex marriage or its equivalent). The New Jersey legislature complied and established civil unions widiout denominating them marriages. NJ. STAT. ANN. §37:1-31 (West 2007). Although concluding at the time that the court would "not presume that a difference in name alone is of constitutional magnitude," one might expect future litigation to require calling these civil unions "marriages," as the plaintiff argued in Lewis. 908 A.2d at 221-22.
14. See In re Marriage Cases, 183 P.3d 384, 435 (Cal. 2008) (holding that California equal protection law requires that same-sex couples have a right to "marriage" and not merely civil unions).
15. See Kerrigan v. Comm'r of Pub. Healdi, 957 A.2d 407, 418 (Conn. 2008) (holding under intermediate scrutiny that despite civil union laws same-sex couples have an equal protection right to civil marriage).
16. See Varnum v. Brien, 763 N.W.2d 862, 906 (Iowa 2009) (holding unanimously that the state equal protection clause requires recognition of same-sex marriage).
17. Gary Emerling, D.C. to Recognize State Gay Marriages, WASH. TIMES, Apr. 8, 2009, at Al, available at 2009 WLNR 6631146.
18. David Abel, Vermont Legalizes Same-Sex Marriage: 11th Hour Change of Heart Ends Veto, BOSTON GLOBE, Apr. 8, 2009, at 1, available at 2009 WLNR 6539576.
19. See Daniel Burke et al., Scorecard: Who Won, Who Lost on Election Day, CHRISTIAN CENTURY, NOV. 28, 2006, at 13 (describing the 2006 voter-approved amendments banning gay marriage in Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, and Wisconsin);
20. Thomas Roberts & Sean Gibbons, Same-Sex Marriage Bans Winning on State Ballots: 11 States Approve Constitutional Amendments to Outlaw Gay Nuptials, CNN.COM, NOV. 3, 2004, http://www.cnn.com/2004/ ALLPOLITICS/11/02/ballot.samesex.marriage/index.html (reporting the 2004 voter-approved amendments banning gay marriage in Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah).
21. See Ariz. Sec'y of State's Office, Proposition 102 Unofficial Results for the 2008 General Election (Nov. 25, 2008), http://www.azsos.gov/ results/2008/general/BM102.htm (citing that 56% of voters approved a constitutional amendment to limit marriage to opposite-sex couples); Cal. Sec'y of State's Office, Proposition 8 Election Night Results (Nov. 4, 2008), http://www.sos.ca.gov/elections/sov/2008-general/maps/returns/props/prop-8.htm (citing 52% pproval for a constitutional ban on same-sex marriage); Fla. Dep't of State, Div. of Elections, Proposition 2 Official Results (Nov. 4, 2008), http://election.dos.state.fl.us/eIections/resultsarchive/Index.asp? ElectionDate=11/4/2008 (citing 62% approval for a constitutional amendment to limit marriage to opposite-sex couples).
22. See Burke, supra note 16.
23. See Bob Egelko, Judge Sets January Trial for Prop. 8 Lawsuit, S.F. CHRON., Aug. 20, 2009, at D3.
24. The Netherlands (2000), Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2008), and Sweden (2009) all permit same-sex marriage. See THE PEW FORUM ON RELIGION & PUBLIC LIFE, GAY MARRIAGE AROUND THE WORLD (2009), http://pewforum.org/docs/?DocID=423;
25. see also Kees Waaldijk, Others May Follow: The Introduction of Marriage, Quasi-Marriage, and Semi-Marriage for Same-Sex Couples in European Countries, 38 NEW ENG. L. REV. 569, 585-89 (2004) (discussing steps taken by European countries to recognize same-sex relationships).
26. See, e.g., Adelle M. Banks, Think You Know What Americans Believe About Religion? You Might Want to Think Again, RELIGION NEWS SERVICE, June 23, 2008, http://pewforum.org/news/display. php?NewsID=15907 (finding that 57% of Americans who attend religious services weekly believe that "homosexuality should be discouraged by society"); News Release, The Pew Forum on Religion & Public Life & The Pew Research Ctr. for the People & the Press, Religious Beliefs Underpin Opposition to Homosexuality (Nov. 18, 2003), available at http://pewforum.org/docs/index.php?DocID=37 (finding that "those with a high level of religious commitment now oppose gay marriage by more than six-to-one");
27. cf. Pew Research Ctr. for the People & the Press & Pew Forum on Religion & Public Life, Most Still Oppose Gay Marriage, but Support for Civil Unions Continues to Rise (Oct. 9, 2009), http://pewresearch.org/pubs/ 1375/gay-marriage-civil-unions-opinion [hereinafter Pew Research Ctr., Most Still Oppose Gay Marriage] ("More than three-quarters of white evangelical Protestants (77%) and two-thirds of black Protestants (66%) oppose same-sex marriage, as do half of white mainline Protestants (50%). Catholics are evenly divided on the issue, with 45% favoring same-sex marriage and 43% opposing it Most of those unaffiliated with any particular religion support same-sex marriage (60%)."). It is clear that among religiously identified respondents-those who attend services more frequendy and are presumably more devout-the alignment is starker.
28. See id. ("Overall, a strong majority of those who attend services at least weekly oppose same-sex marriage (71%), while about half of those who seldom or never attend religious services favor it (54%). Most regularly attending white Catholics in the survey oppose same-sex marriage, while most white Catholics who attend Mass less often favor it. Among white evangelicals, 85% of those who attend services at least weekly oppose same-sex marriage, 21 percentage points higher than among lessobservant white evangelicals.").
29. See, e.g., SAMUEL P. HUNTINGTON, WHO ARE WE? THE CHALLENGES TO AMERICA'S NATIONAL IDENTITY 82 (2005) (arguing that popular uproar over Michael Newdow's lawsuit challenging the phrase "under God" in the Pledge of Allegiance indicates "the extent to which Americans are one of the most religious people in the world, particularly compared to the peoples of other highly industrialized democracies"). Huntington also cites statistics that support the common view of America's religiosity: 92% of Americans believe in God, 85% believe that the Bible is in some way the word of God, and 63 to 66% of Americans claim membership in a church or synagogue. Id, at 86-87;
30. see also Carolyn A. Deverich, Comment, Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary- Accommodationist Argument for the Constitutionality of God in the Public Square, 2006 BYU L. REV. 211, 212 (citing similar statistics indicating that Americans are relatively religious compared to citizens of other industrialized countries).
31. U.S. CONST, amend. I.
32. See Michael W. McConnell, Why Is Religious Liberty the "First Freedom"?, 21 CARDOZO L. REV. 1243, 1244 (2000) (discussing why the First Congress made religious freedom the subject of the First Amendment) ;
33. see also City of Boerne v. Flores, 521 U.S. 507, 563 (1997) (O'Connor, J., dissenting) (viewing the Free Exercise Clause's substantive guarantee of liberty as "no less important" than the Free Speech or Takings Clauses); PAUL G. KAUPER, RELIGION AND THE CONSTTTUTION 17 (1964), quoted in City of Boerne, 521 U.S. at 563 (O'Connor, J., dissenting) ("[O]ur whole constitutional history. supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances."). Despite the brevity and deceptive simplicity of the First Amendment's text, the Religion Clauses are some of the most hotly contested words in the Constitution, and there is no shortage of secularists who decline to accord the Clauses much importance.
34. See, e.g., Suzanna Sherry, Enlightening the Religion Clauses, 7 J. CONTEMP. LEGAL ISSUES 473, 477 (1996) (calling the Free Exercise Clause "a limited aberration in a secular state").
35. See Michael Novak, The First Institution of Democracy. Tocqueville on Religion: What Faith Adds to Reason, 6 EUR. VIEW 87, 92 (2007) (arguing with survey data that "empirical evidence does not show that religion has lost public salience in recent times");
36. Peter Baker, Bush Tells Group He Sees a "Third Awakening, " WASH. POST, Sept. 13, 2006, at A6 (noting that some "scholars and writers have debated for years whether a Third Awakening has been taking place").
37. 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 74 (3d ed., New York, E.B. Clayton &James van Norden 1836).
38. David F. Forte, The Framers' Idea of Marriage and Family, in THE MEANING OF MARRIAGE: FAMILY, STATE, MARKET, & MORALS 103 (Robert P. George & Jean Bethke Elshtain eds., 2006);
39. see also id. at 106 (noting that the Founders' synthesizing of marriage as a political institution and an entity governed by Christian norms "gave the institution of marriage and the family more power, authority, and inner strengdi than at any time in [the] history of the West").
40. In re Marriage Cases, 183 P.3d 384, 451-52 (Cal. 2008).
41. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 965 n.29 (Mass. 2003).
42. Indeed, conflicts in this area abound. In 2006, Massachusetts prevented adoption agencies from declining to place children with same-sex couples, and the decision forced the state's largest such agency, Catholic Charities, to exit the adoption business altogether. See Maggie Gallagher, Banned in Boston, THE WEEKLY STANDARD, May 15, 2006, at 17. Litigation is currendy pending in a case regarding a New Mexico wedding photographer who faces $6,600 in attorneys' fees for declining to take pictures of a lesbian civil commitment ceremony and in the case of a Christian counselor in Georgia who declined to advise a woman in a lesbian relationship and referred her to another therapist Jacqueline L. Salmon, Faith Groups Increasingly Lose Gay Rights Fights, WASH. POST, Apr. 10, 2009, at A4.
43. Roger Severino, Or for Poorer? How Same-Sex Marriage Threatens Religious Liberty, 30 HARV. J.L. & PUB. POLV 939, 957-58, 964 (2007) (arguing that antidiscrimination laws in these areas pose potential threats to religious liberty).
44. See infra text accompanying notes 88-91.
45. See infra note 81 (describing the pervasiveness of hate-crime laws referencing sexual orientation).
46. See David Blankenhom &Jonathan Rauch, A Reconciliation on Gay Marriage, N.Y. TIMES, Feb. 22, 2009, at WK11 (proposing that Congress grant federal civil union status to state same-sex marriages and grant exemptions for religious institutions in states with religious-conscience exceptions).
47. Especially helpful as a catalog of potential areas for legal skirmishes between religious actors who oppose same-sex marriage and same-sex marriage proponents is SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008).
48. The same-sex marriage controversy does not mark the first time Christians have attempted to enforce their own views of marriage against a competing secular definition. Ancient Roman law forbade slaves from marrying unless their unions were characterized as concubinage; because the early Church would not tolerate the denial of "proper married status" to any Christian, bishops gave slaves special permission to marry and kept it secret from the Roman authorities.
49. See ROSEMARY HAUGHTON, No. 23: THE THEOLOGY OF MARRIAGE 41 (Edward Yarnold ed., Fides Publishers Inc. 1971). As Pope Leo XIII declared in his encyclical Arcanum Divinae Sapientiae,
50. Let no one, then, be deceived by the distinction which some civil jurists have so strongly insisted upon-the distinction, namely, by virtue of which they sever the matrimonial contract from the sacrament. [I]n Christian marriage the contract is inseparable from the sacrament for this reason, the contract cannot be true and legitimate without being a sacrament as well. Pope Leo XII, Encyclical Letter Arcanum Divinae Sapientiae 1 23 (Feb. 10, 1880), http://www.vatican.va/holy-father/leo-xiii/encyclicals/documents/ hf-l-xiii-enc-10> 021880-arcanum-en.html.
51. For the sake of simplicity and brevity, this Part includes a number of generalizations that will pertain to some-I would argue many-but not all Christian institutions in the United States. The nature of this discussion should not obscure the variety of views on marriage held by American religious institutions. See generally Mark Strasser, Same-Sex Marriages and Civil Unions: On Meaning, Free Exercise, and Constitutional Guarantees, 33 LOY. U. CHI. LJ. 597, 604-10 (2002) (discussing the multiplicity of religious views regarding the permissibility of same-sex marriage).
52. See, e.g., Richard John Neuhaus, Columnists Say It., FIRST THINGS, Nov. 2, 2005, http://www.firstthings.com/ onthesquare/2005/11/rjn-11205-columnists-say-it(noting that, with 66 million members in the United States, Cathoucism is the largest Christian denomination in the country).
53. CATECHISM OF THE CATHOLIC CHURCH §1210 (2d ed. 1997).
54. Id. §1131.
55. Id. §1210.
56. See, e.g., DOUGLAS J. BROUWER, BEYOND "I Do": WHAT CHRISTIANS BELIEVE ABOUT MARRIAGE 21-23 (2001) (describing a covenant as an unbreakable, enduring bond possessing religious significance).
57. Appealing to scriptural authority rather than tradition or Catholic Church authority, Protestants limited the sacraments they recognized to two: baptism and communion. In doing so, they did not necessarily demean the religious significance of concepts not designated as sacraments. Two of the hallmarks of Protestantism are preaching and Bible study, yet neither is a sacrament
58. Michael G. Lawler, Marriage, in THE OXFORD COMPANION TO CHRISTIAN THOUGHT 410 (Adrian Hastings et al. eds., 2000).
59. One commentator describes the mischaracterization as follows: There is a not uncommon assumption to the effect that Christian marriage is essentially ethical marriage, that is, that a couple have a Christian marriage if they live together with at least a minimum level of respect, love, and decency. But if Christianity is no more than that, there is no such thing as the Christian religion. HENRY A. BOWMAN, A CHRISTIAN INTERPRETATION OF MARRIAGE 19 (1959).
60. CATECHISM OF THE CATHOLIC CHURCH, supra note 40, §1660.
61. See Genesis 2:18 (quoting God as saying, "It is not good that the man should be alone; I will make him a helper as his partner");
62. Id. 2:24 ("Therefore a man leaves his father and his mother and clings to his wife, and they become one flesh.").
63. See JOHN L. THOMAS, THE CATHOLIC VIEWPOINT ON MARRIAGE AND THE FAMILY 56 (John J. Delaney ed., rev. ed., Image Books 1965) (1958) ("Catholic teaching on marriage and the family must be viewed within this wider context, embodying a concept of the Church's mission, the nature of man, and the nature of grace.").
64. See CHARLES P. KINDREGAN, A THEOLOGY OF MARRIAGE 14-15 (1967) ("Man, complete and whole, is not created until male and female come together in a union of one flesh which makes them a whole being.... [A person] makes himself fully human by finding in his spouse the remedy for his own inadequacies as a male or female.").
65. See Lawler, supra note 45, at 410 ("The root of Christian ideas about the sacramentality of marriage goes back to the prophet Hosea's enthronement of marriage as a prophetic symbol of the covenant between God and Israel.").
66. OUR SUNDAY VISITOR'S ENCYCLOPEDIA OF CATHOLIC DOCTRINE 414 (Russell Shaw ed., 1997).
67. Lawler supports the idea that marriage is analogous to and revelatory of God's love: The conscious presence of Christ, that is, of grace in its most ancient Christian meaning, is not something extrinsic to Christian marriage. It is something essential to it, something without which it would not be Christian at all. Christian marriage reveals the love of the spouses for one another; but, in the image of their love, it also reveals the love of God and of God's Christ for them. It is in this sense also that, in the Catholic tradition, it is said to be a sacrament of the presence of Christ and of the God he reveals. Lawler, supra note 45, at 410. Other commentators describe an even deeper connection between God and marriage: Christian marriage has a real, essential, and intrinsic reference to the mystery of Christ's union with His Church. It is rooted in this mystery and is organically connected with it, and so partakes of its nature and mysterious character. Christian marriage is not simply a symbol of this mystery or a type that lies outside it, but an image of it growing out of the union of Christ with the Church, an image based upon this union and pervaded by it. For it not only symbolizes the mystery but really represents it. It represents the mystery because the mystery proves active and operative in it. MATTHIAS J. SCHEEBEN, MYSTERIES OF CHRISTIANITY 601-02 (1946). The symbol of the universal Church and Christ united as a bride and groom is a central analogy in Christian theology and pervades the New Testament.
68. See e.g., John 3:28-29;
69. Matthew 9:14-15;
70. Ephesians 5:31-33;
71. Revelation 19:6-9.
72. Pope John Paul II, Apostolic Exhortation Familiaris Consortio §13 (Nov. 22, 1981), http://www.vatican.va/holy-father/john-paul-ii/ apost-exhortations/documents/hf-jp-ii-exh-19811122-familiaris-consortio-en.html (describing marriage as "a typically Christian communion of two persons because it represents the mystery of Christ's incarnation and the mystery of His covenant").
73. CATECHISM OF THE CATHOLIC CHURCH, supra note 40, §1601. Bolstering the link between theological arguments and real-world impact, empirical research suggests a link between greater religious commitment and stronger marriages. See, e.g., Rieran T. Sullivan, Understanding the Relationship Between Religiosity and Marriage: An Investigation of the Immediate and Longitudinal Effects of Religiosity on Newlywed Couples, J. FAM. PSYCHOL. 610, 617 (2001) (finding that more religious husbands and wives exhibited stronger feelings of aversion to divorce and a greater willingness to seek help to preserve the marriage).
74. See BOWMAN, supra note 46, at 22 ("The couple's bodies will permit them to establish a sexual, a procreative relationship. Their God-centered orientation will permit them to establish a spiritual, a creative relationship.");
75. cf. Pope Pius XI, Encyclical Letter Casti Connubii (Dec. 31, 1930) 1 80, http://www.vatican.va/holy-father/pius-xi/encyclicals/ index.htm (describing marriage as "the means of transmitting life, thus making the parents the ministers, as it were, of the Divine Omnipotence").
76. See SECOND VATICAN ECUMENICAL COUNCIL, GRAVISSIMUM EDUCATIONIS [DECLARATION ON CHRISTIAN EDUCATION] art. 3 (1965), http://www.vatican.va/ archive/hist-councils/ii-vatican-council/index.htm (noting that it is "particularly in the Christian famlly, enriched by the grace and the office of the sacrament of matrimony, that children should be taught from their early years to have a knowledge of God according to the faith received in Baptism, to worship Him, and to love their neighbor").
77. Justice Scalia has put the problem this way: Church and state would not be such a difficult subject if religion were, as the Court apparendy thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one's room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals. Lee v. Weisman, 505 U.S. 577, 645 (1992) (Scalia, J., dissenting); see also Mary Ann Glendon, Individualism and Communitarianism in Contemporary Legal Systems: Tensions and Accommodations, 1993 BYU L. REV. 385, 408 (noting that the Supreme Court has "repeatedly characterized [religion]. as a purely private individual experience" and that the Court has "ignored the fact that for many individuals religious freedom has important associational and institutional aspects").
78. 932A.2d571 (Md. 2007).
79. See Severino, supra note 31, at 943 ("The specific consequences that will likely flow from legalizing same-sex marriage include both government compulsion of religious institutions to provide financial or other support for same-sex married couples and government withdrawal of public benefits from those institutions that oppose same-sex marriage.").
80. See generally STEVE BRUCE, GOD IS DEAD: SECULARIZATION IN THE WEST 20 (2002) (arguing that "the privatization of religion removes much of the social support that is vital to reinforcing beliefs. and encourages a defacto relativism that is fatal to shared beliefs").
81. See United States v. Seeger, 380 U.S. 163, 174-75 (1965) (noting the great variety of belief within religious groups, evidenced by the multiplicity of denominations within those groups).
82. Describing the vocation of humanity, the Catechism states, "This vocation takes a personal form since each of us is called to enter into the divine beatitude; it also concerns the human community as a whole." CATECHISM OF THE CATHOUC CHURCH, supra note 40, §1877;
83. see ato JOHN H. LEITH, BASIC CHRISTIAN DOCTRINE 234 (1993) ("To be a Christian and to be the church are one and the same existence.").
84. CATECHISM OFTHE CATHOLIC CHURCH, supra note 40, §166.
85. See, e.g., Lighthouse Inst, for Evangelism, Inc., v. City of Long Branch, 510 F.Sd 253, 273 (3d Qr. 2007) (listing potentially covered acts as "assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, [and] abstaining from certain foods or certain modes of transportation" (quoting Employment Div. v. Smith, 494 U.S. 872, 877 (1990))).
86. HAROLD J. BERMAN, THE INTERACTION OF LAW AND RELIGION 24 (1974).
87. CATECHISM OF THE CATHOLIC CHURCH, supra note 40, §1068.
88. Id. §1072 (quoting SECOND VATICAN ECUMENICAL COUNCIL, SACROSANCTUM CONCILIUM [CONSTITUTION ON THE SACRED LITURGY] art. 9 (1963), http://www.vatican.va/archive/hist-councils/ii-vatican-council/index.htm).
89. The "proclamation of the gospel for the salvation of humankind" and "the maintenance of divine worship" are the two ends that directly involve worship. THE CONSTITUTION OF THE PRESBYTERIAN CHURCH (U.SA.) PART II: BOOK OF ORDER, 2009-2011 §G-1.0200 (2009).
90. Id.
91. Id. §G-2.0500.
92. See Novak, supra note 25, at 92 (explaining the visible and often highly political nature of religion in early America).
93. MARTIN MARTY, MARTIN LUTHER: A LIFE 104 (2008) ("Luther ⋯ made a distinction between the honored way that one lives out a calling in the professions, jobs, tasks, and roles here below on earth and the also honored way that the same person receives a calling from God through the grace which relates to life above in heaven.").
94. See Matthew 22:21 ("Render therefore to Caesar the things that are Caesar's, and to God the things that are God's.").
95. See supra Part I.
96. In re Marriage Cases, 183 P.3d 384,451-52 (Cal. 2008).
97. Severino, supra note 31, at 942 (alteration in original) (quoting Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 973 (Mass. 2003) (Greaney, J., concurring)); cf. Brietta R. Clark, When Free Exercise Exemptions Undermine Religious Liberty and the Liberty of Conscience: A Case Study of the Catholic Hospital Conflict, 82 OR. L. REV. 625, 629 (2003) ("Conflicts due to laws burdening religious conduct present the most controversial and difficult free exercise questions since there are many laws designed to regulate the health, safety, and welfare of society that unintentionally burden religiously motivated conduct").
98. Marc D. Stern, Same-Sex Marriage and the Churches, in SAME-SEX MARRIAGE AND RELIGIOUS LIBERTY 1 (Douglas Laycock, Anthony R. Picarello, Jr. & Robin Fretwell Wilson eds., 2008) (discussing the coverage of the public accommodations provisions of the Civil Rights Act of 1964).
99. NJ. STAT. ANN. §§10:5-4, -5 (West 2002). The New Jersey Supreme Court's interpretation of New Jersey's public accommodation law provides more substantial coverage than similar laws in other states. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 663 (2000) (Stevens.J., dissenting).
100. See Severino, supra note 31, at 957-58 ("[A] ntidiscrimination regulations that would attend the widespread recognition of same-sex marriage threaten to erode the traditional deference to religious sensibilities, thus creating traction for. lawsuits.").
101. The Becket Fund for Religious Liberty observed, in a 2007 amicus brief, that "[g]eneral hate-crime statutes exist in at least 45 states. Of those, currendy 32 states ... have hate-crime laws referencing sexual orientation. Some states have already taken the next step and banned sexual-orientation related hate speech directly, as in Massachusetts and Pennsylvania." Brief [of] Amicus Curiae the Becket Fund for Religious Liberty in Support of Defendant at 8-9, Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009) (No. 5965). Specifically, in 2004, Christians who were peaceably protesting were arrested on public property at a Philadelphia gay pride event for "ethnic intimidation" under hate crimes laws. See Startzell v. City of Phila., No. 05-05287, 2007 WL 172400, at *3-4 (E.D. Pa. Jan. 18, 2007).
102. Also consider the church that offered a series of discussions regarding the theological case against homosexuality after it discovered that its youth minister had participated in a civil commitment ceremony with her lesbian partner; the youth minister sued the church for its religious speech. See Bryce v. Episcopal Church, 289 F.3d 648, 651-53 (10th Cir. 2002) (affirming the dismissal of the youth minister's case). art IV, §1, cl. 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.")
103. U.S. CONST, art IV, §1, cl. 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.").
104. See, e.g., Joseph William Singer, Same Sex Marriage, Full Faith and Credit, and the Evasion of Obligation, 1 STAN. J. CR. & CL. 1, 35-36 (2005) (arguing that the Full Faith and Credit clause should be interpreted to require interstate recognition of valid Massachusetts same-sex marriages).
105. DOMA is comprised of two important provisions. First, with respect to federal laws and regulations, "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." 1 U.S.C. §7 (2006). Second, the law provides that "[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." 28 U.S.C. § 1738C (2006).
106. See Alliance Defense Fund, DOMA Watch Home Page, http://www.domawatch.org/index.php (last visited Oct 15, 2009) ("37 states have their own Defense of Marriage Acts (DOMAs), while 2 more states have strong language that defines marriage as one man and one woman.").
107. See, e.g., Randy Beck, The City of God and the Cities of Men: A Response to Jason Carter, 41 GA. L. REV. 113, 150 (2006) (concluding that Lawrence v. Texas does not imply a "constitutional right to same-sex marriage").
108. See Lawrence v. Texas, 539 U.S. 558, 604 (2003) (Scalia, J., dissenting) ("Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.");
109. see also Severino, supra note 31, at 957 ("Anyone seeking to strike down DOMA and establish same-sex marriage nationwide will find plenty of ammunition in Lawrence.").
110. Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
111. Rev. Rul. 71-447,1971-2 CB. 230.
112. Bob Jones Univ., 461 U.S. at 585, 591-92.
113. Conceivably, courts could also simply rule that infringement of an antidiscrimination statute violates "public policy" by definition.
114. Charles Franklin, Gay Marriage Support and Opposition, POLLSTER.COM May 21, 2008, http://www.pollster.com/blogs/gay-marriage- support-and-oppos.php ("The net effect of some 16 years of public debate was a 10 point decline in opposition and a 12 point rise in support").
115. Id. ("When the 'civil unions' option is added, opposition to gay rights drops significandy from about 55% to 40%. Likewise, support for gay marriage drops from 40% to 29%.");
116. see also Pew Research Ctr., Most Still Oppose Gay Marriage, supra note 21 ("Over the past year, support for civil unions has grown significandy among those who oppose same-sex marriage (from 24% in August 2008 to 30% in 2009) while remaining stable among those who favor same-sex marriage.").
117. See Leslie Fulbright, Voters Still Split on Same-Sex Marriage, S.F. CHRON., Mar. 10, 2009, at B1 ("Voters aged 18 to 39 favor gay marriage by 55 percent while those 65 or older are 58 percent opposed, according to the poll.").
118. See Lawrence v. Texas, 539 U.S. 558, 572 (2003) (noting as part of the argument for overturning Bowers "an emerging awareness that
119. see also Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policymaker, 6 J. PUB. L. 279, 291-93 (1957) (demonstrating that the Supreme Court rarely "plant[s] itself firmly against a lawmaking majority" by holding federal legislation unconstitutional).
120. See Bob Jones Univ. v. United States, 461 U.S. 574, 602-05 (1983) (revoking the tax-exempt status of a religious university that banned interracial dating and marriage as part of its admissions policy, even though the policy stemmed directly from sincerely held religious beliefs).
121. Mary Ann Glendon, For Bäter or for Worse?, WALL ST. J., Feb. 25, 2004, at A14; see also Mark Galli, Is the Gay Marriage Debate Over? What the Battle for Traditional Marriage Means for Americans-and Evangelicals, CHRISTIANITY TODAY, July 2009, at 31 ("A recent poll of Massachusetts residents revealed that 36 percent of voters who oppose gay marriage agreed with the statement, 'If you speak out against gay marriage in Massachusetts you really have to watch your back because some people may try to hurt you.'").
122. Victor Morton & Julia Duin, Faith Community Mourns 'Inspirational' Neuhaus: Catholic Leader, 72, Dies from Cancer, WASH. TIMES, Jan. 9, 2009, at Al, available at 2009 WLNR 465436;
123. see also Letter from James Madison to William Bradford, Jr. (Jan. 24, 1774) (describing the "diabolical, hell-conceived principle" that allowed "five or six well-meaning men [being imprisoned] in close jail for publishing their religious sentiments, which in the main are very orthodox"), in 1 WRITINGS OF JAMES MADISON, 1769-1783, at 18, 21 (Gaillard Hunt ed., 1900).
124. 494 U.S. 872, 879 (1990) (holding that the Free Exercise Clause does not exempt religious actors from duties imposed by neutral and generally applicable laws).
125. See OFFICE OF LEGAL POUCY, U.S. DEP'T OF JUSTICE, REPORT TO THE ATTORNEY GENERAL: REUGIOUS LIBERTY UNDER THE FREE EXERCISE CLAUSE 11-15 (1986) (arguing that it is appropriate to use history in interpreting the Free Exercise Clause).
126. Everson v. Bd. of Educ, 330 U.S. 1, 33 (1947) (Rudedge.J., dissenting).
127. Africa v. Pennsylvania, 662 F.2d 1025, 1034 (3d cir. 1981) ("[I]t is crucial to realize that the free exercise clause does not protect all deeply held beliefs, however 'ultimate' their ends or all-consuming their means.").
128. See, e.g., District of Columbia v. Heller, 128 S. Ct 2783, 2818 n.27 (2008) ("There may be narrower scope for operation of the presumption of constitutionality [i.e., narrower than that provided by rational-basis review] when legislation appears on its face to be widiin a specific prohibition of the Constitution, such as those of the first ten amendments." (italics omitted) (alteration in original) (quoting United States v. Carolene Prods., 304 U.S. 144,152 n.4 (1938))).
129. U.S. CONST, amend. I.
130. OFFICE OF LEGAL POLICY, supra note 100, at 15. On the incorporation of the Free Exercise Clause to the states through the Fourteendi Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
131. OFTICE OF LEGAL POUCY, supra note 100, at 16.
132. See, e.g., ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1463 (2d ed. 2005) ("The Free Exercise Clause ... obviously does not provide absolute protection for religiously motivated conduct").
133. See Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (indicating a number of different prohibitions on government conduct as it relates to religious belief, including government's inability to compel belief affirmation or to punish the expression of beliefs it deems false).
134. Letter from Thomas Jefferson to a Comm. of the Danbury Baptist Ass'n (Jan. 1, 1820), in 16 THE WRITINGS OF JEFFERSON 281, 281-82 (A. Lipscomb ed., 1904).
135. See Reynolds v. United States, 98 U.S. 145, 166 (1878) ("Laws ⋯ cannot interfere with mere reugious belief and opinions, [but] they may with practices.").
136. Michael W. McConnell, The Origins and Historical Understanding of the Free Exercise of Religion, 103 HARV. L. REV. 1409, 1451-52 (1990) (quoting WILLIAM PENN, The Great Case of Liberty of Conscience Debated, in 1 A COLLECTION OF THE WORKS OF WILLIAM PENN 447 (1726)).
137. ST. GEORGE TUCKER, 1 BLACKSTONE'S COMMENTARIES, reprinted in 5 THE FOUNDER'S CONSTITUTION 96, 97 (Philip B. Kurland & Ralph Lerner eds., 1987);
138. see also JOHN WITTE, JR., REUGION AND THE AMERICAN CONSTTTUTIONAL EXPERIMENT 45 (2005) ("For most eighteenth-century writers, religious belief and religious action went hand in hand, and each deserved legal protection.").
139. McConnell, supra note 112, at 1437 ("It is a mistake to read the religion clauses under the now prevalent assumption that 'the governing intellectual climate of the late eighteenth century was that of deism (or natural law).'" (quoting William P. Marshall, The Case Against the Constitutionally Compelled Free Exercise Exemption, 40 CASE W. RES. L. REV. 357,377 (1989))).
140. Id. (citing a historian who believed that "the Enlightenment world view 'excludes many, probably most, people who lived in America in the eighteenth and nineteenth centuries'").
141. Id. at 1440.
142. The Supreme Court has also noted the historical link between calls for strict disestablishment and free exercise. See Everson v. Bd. of Educ, 330 U.S. 1, 11 (1947) ("[individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.").
143. McConnell, supra note 111, at 1442.
144. Id. at 1446;
145. see also WITTE, supra note 112, at 97 ("To read the [F]ree [E]xercise [C]lause too minimally is hard to square with the widespread solicitude for rights of conscience and free exercise reflected in the First Congress's debates.");
146. James Madison, Memorial and Remonstrance Against Religious Assessments ("Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe."), in 2 THE WRITINGS OF JAMES MADISON, 1783-1787, at 185 (Gaillard Hunt ed., 1901). Despite Madison's absolutist disestablishment view of church and state presented by Justice Rudedge's famous dissent in Everson v. Board of Education, 330 U.S. at 28-63 (Rudedge, J., dissenting), in which Rudedge identifies Madison as the premier authority on the meaning of the Religion Clauses, Madisonian thinking on free exercise was similarly starkly drawn in favor of broad religious exercise. As the discussion herein observes, this seeming inconsistency between strict thsestablishment and robust free exercise is friendly, rather than unfriendly, to religion, and is indeed no contrathction at all. But see Vincent Philiip Muñoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 HARV. J.L. & PUB. POLY 1083, 1085 (2008) (arguing that the drafters' notes on the Free Exercise Clause shed "almost no light" on its original meaning but that the Clause likely thd not support conscientious exemptions because when Congress considered what would become the Second Amendment, the First Congress "threctly considered and rejected a constitutional right to religious-based exemption from militia service"). This debate played itself out in the Supreme Court in City of Boerne v. Flares, 521 U.S. 507 (1997). Justices O'Connor, Breyer, and Souter generally agreed with McConnell's interpretation of the history thscussed herein, id. at 548-65 (O'Connor, J., thssenting), and Justices Scalia and Stevens rejected the same history as inconclusive. Id. at 537-44 (Scalia,J., concurring).
147. WITTE, supra note 112, at 45.
148. McConnell, supra note 24, at 1265.
149. There is also a competing body of academic literature against favoring widespread exemptions under the Free Exercise Clause. See generally MARCI A. HAMILTON, GOD VS. THE GAVEL: REUGION AND THE RULE OF LAW (2005);
150. MICHAEL J. MALBIN, REUGION AND POLITICS: THE INTENTIONS OF THE AUTHORS OF THE FIRST AMENDMENT (1978);
151. Gerard V. Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 HOFSTRA L. REV. 245 (1991);
152. Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915 (1992);
153. Philip A. Hamburger, Morels Less, 90 VA. L. REV. 835 (2004);
154. Philip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3 (1979);
155. Marshall, supra note 113; Mark Tushnet, The Emerging Principle of Accommodation of Religion (Dubitante), 76 GEO. LJ. 1691 (1988);
156. Ellis West, The Case Against a Right to Religion-Based Exemptions, 4 NOTRE DAME J.L. ETHICS & PUB. POLV 591 (1990) ;
157. Ellis M. West, The Right to Religion-Based Exemptions in Early America: The Case of Conscientious Objectors to Conscription, 10 J.L & REUGION 367 (1993-94).
158. Scholars note two broad understanthngs of the Free Exercise Clause:
159. First, one could conceive of the Free Exercise Clause as primarily promoting religious autonomy-facilitating the ability of religious adherents to practice their faiths, even when such practice entails violating generally applicable laws enacted widiout religiously discriminatory intent The alternative approach would conceptualize the Clause in terms of enhancing relative equality among and between religious sects.
160. Ronald J. Krotoszynski, Jr., If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith, 102 Nw. U. L. REV. 1189, 1192 (2008). The latter reading, of course, provides less support to religious institutions. One scholar has noted the lack of doctrinal development in free exercise and suspects that courts may be uncomfortable with combining necessary judicial compromise and eternal truths.
161. See Alan E. Brownstein, Justifying Free Exercise Rights, 1 U. ST. THOMAS LJ. 504, 506 (2003) ("Comparing religion clause doctrine to free speech or equal protection doctrine today is like comparing a Dick and Jane reading primer to The Brothers Karamazov").
162. STEVEN G. GEY, REUGION AND THE STATE, at iii (2d ed. 2006) ("Because the Court has gone beyond the First Amendment's text to define the proper limits of the relationship between church and state, interpretive issues have always been at the forefront of Religion Clause litigation.").
163. The Supreme Court discussed the distinction between regulating belief and action in the first Smith case: The door of the Free Exercise Clause stands tighdy closed against any governmental regulation of religious beliefs as such On the other hand, the Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions."
164. Employment Div. v. Smith, 485 U.S. 660, 670 n.13 (1988) (alteration in original) (citations omitted) (internal quotation marks omitted) (quoting Sherbert v. Verner, 374 U.S. 398, 402-03 (1963)).
165. 98 U.S. 145 (1878).
166. Id. at 145 ("A party's religious beliefs cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land.").
167. Id. at 164 (concluthng that Jefferson's view "may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured").
168. Id. ("Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.").
169. Id. at 167. Even the Catholic Church recognizes this principle. CATECHISM OF THE CATHOUC CHURCH, supra note 40, §2109 ("The right to religious liberty can of itself be neither unlimited nor limited only by a 'public order' conceived in a positivist or naturalist manner.").
170. CHEMERINSKY, supra note 107, at 1472 (tracing the development of the Court's free exercise jurisprudence).
171. Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
172. 374 U.S. 398(1963).
173. Id. at 406.
174. Id. at 403.
175. 494 U.S. 872 (1990).
176. Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982)).
177. Zd. at 877 ("[T]he 'exercise of religion' often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with othrs for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation."). The drawback of th Court's definition is that it only protects actions that are prohibited because thy were engaged in for religious reasons or for the religious belief thy exhibit. Id.
178. Because the makeup of th Court has changed since the 5-4 Smith decision, it is possible that th Court going forward may fall in line behind Justice O'Connor's view. From th Smith Court, only Justices Scalia, Stevens, and Kennedy remain today (all in th Smith majority).
179. Justice O'Connor concurred witheth the majority in judgment, although the opinion she wrote and the more permissive view of free exercise she advocated make it thfficult to explain her vote with the majority.
180. Smith, 494 U.S. at 893 (O'Connor,J., concurring).
181. Id.
182. Id. at 901 ("There is nothing talismanic about neutral laws of general applicability for [such laws] can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion.").
183. Id. at 893 ("[A] law that prohibits certain conduct-conduct that happens to be an act of worship for someone-manifesdy does prohibit that person's free exercise of his religion.").
184. Id. at 897.
185. Id. (quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981)).
186. 508 U.S. 520 (1993).
187. CHEMERINSKY, supra note 107, at 1478.
188. For commentary on both Smith and Lukumi, see Richard F. Duncan, Free Exercise Is Dead, Long Live Free Exercise: Smith, Lukumi and the General Applicability Requirement, 3 U. PA.J. CONST. L. 850 (2001).
189. See Daniel A. Crane, Beyond RFRA: Free Exercise of Religion Comes of Age in the State Courts, 10 ST. THOMAS L. REV. 235, 253-62 (1998) (providing several examples of strong state protection of free exercise rights);
190. Robert M. O'Neil, Religious Freedom and Nondiscrimination: State RFRA Laws Versus Civil Rights, 32 U.C. DAVIS L. REV. 785, 792-93
191. (1999) (surveying the issues a state faces if it wishes to pass RFRA laws that provide stronger free exercise protection).
192. See City of Boerne v. Flores, 521 U.S. 507 (1997) (striking down RFRA on federalism grounds only widi respect to a state law).
193. Employment Div. v. Smith, 494 U.S. 872, 881-82 (1990) ("The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law ⋯ have involved ⋯ the Free Exercise Clause in conjunction with other constitutional provisions").
194. Id. at 882 ("The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right").
195. Id. Even if it is easy to envision, courts have had thfficulty understanthng and interpreting the hybrid rights doctrine. See Timothy J. Santoli, Note, A Decade After Employment Division v. Smith: Examining How Courts Are Still Grappling with the HybridRights Exception to the Free Exercise Clause of the First Amendment, 34 SUFFOUC U. L. REV. 649, 665-67 (2001) (identifying three separate approaches to interpreting Smith's hybrid-rights exception among the circuit courts).
196. One author agues, for example, that as same-sex marriage gathers increasing support from religious groups it may be possible to bring a free exercise claim challenging same-sex marriage bans under a hybrid rights theory. See Ariel Y. Graff, Free Exercise and Hybrid Rights: An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans, 29 U. HAW. L. REV. 23, 25 (2006) (arguing that "religious exemptions from same-sex marriage bans are required under a hybrid rights analysis").
197. See William P. Marshall, In Defense of Smith and Free Exercise Revisionism, 58 U. CHI. L. REV. 308, 309 n.3 (1991) (criticizing the Court's use of the "hybrid" exception as "illustrative of poetic license"); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1121 (1990) ("One suspects that the notion of 'hybrid' claims was created for the sole purpose of thstinguishing Yoder.").
198. See Clark, supra note 77, at 660 (describing a free exercise case barred by Smith that could potentially be made viable through the use of the hybrid-rights exception).
199. A free speech claim could also comprise part of a hybrid rights claim or even constitute a stand-alone defense to same-sex marriage antithscrimination laws; however, a free speech analysis lies beyond the confines of this Comment
200. WITTE, supra note 112, at 169 (2005) ("It is no small irony that today the free speech clause affords considerably more protection to religious liberty than the free exercise clause.").
201. The Court has recognized "a right to associate for the purpose of engaging in 5 those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercrise of religion." Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).
202. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958).
203. Id; cf. David B. Salmons, Toward a Fuller Understanding of Religious Exercise: Recognizing the Identity-Generative and Expressive Nature of Religious Devotion, 62 U. CHI. L. REV. 1243,1245 (1995) (asserting that "[pjublicly expressing one's ... membership in a class or group ... is at the core of political speech").
204. CHEMERINSKY, supra note 107, at 1396 (regarthng freedom of association as integral to free speech because "[g]roups have resources-in human capital and money-that a single person lacks").
205. Id. (noting that "the very existence of group support for an idea conveys a message").
206. See Roberts, 468 U.S. at 609 (holthng that a national organization of men between the ages of eighteen and thirty-five may not restrict its membership because of the state's compelling interest in preventing thscrimination and the absence of a finthng that the inclusion of women would undermine the group's expressive activities);
207. see also Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987) (holthng that the forced admission of women to comply with a California law prohibiting sex thscrimination thd not infringe the club's First Amendment rights).
208. It is general Christian doctrine that one's sexuality or views on same-sex marriage would not orthnarily preclude one from membership in a church, but a church may have legitimate concerns-just as the Boy Scouts thd-about same-sex marriage proponents assuming leadership roles. Even if a Christian church wanted to restrict its membership to heterosexuals, I know of no mainstream strand of Christianity whose tenets exclude homosexuals from membership because of their sexuality. However, given explicit theology on same-sex marriage, any exclusion would have to be directly related to an expressive showing contrathcting these specific teachings.
209. 530 U.S. 640 (2000).
210. Id. at 644.
211. See NJ. STAT. ANN. §§10:5-4, -5 (West 2002) (prohibiting thscrimination in New Jersey's public accommodations). Due to state courts' interpretations of New Jersey's public accommodation law, it provides more substantial coverage than similar laws in other states. Dale, 530 U.S. at 663 (Stevens, J., thssenting) (noting that the New Jersey Supreme Court has given its public accommodation law "a more expansive coverage than most similar state statutes").
212. Id. at 651 ("We accept the Boy Scouts' assertion. We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality."). The Boy Scouts were also allowed to introduce evidence of several position statements advising against the appropriateness of scout leaders being openly gay and stating that homosexual conduct violates the Scout Oath.
213. Id. at 651-52.
214. Id. at 653.
215. Id. at 645 (noting that Dale served as co-president of his university's Lesbian/Gay Alliance, was interviewed by a newspaper regarthng his gay-rights advocacy, and was identified in the newspaper article photograph as the Lesbian/Gay Alliance co-president).
216. Id. at 653.
217. Id.
218. Id. at 648.
219. Id. at 645 (noting that Dale was, among other things, co-president of his university's Gay/Lesbian Alliance).
220. Id. at 649-53 ("We cannot doubt that the Boy Scouts sincerely holds this view.").
221. Id. at 653.
222. Id. at 667 (Stevens, J., thssenting).
223. See id. at 665-71 (arguing that the Boy Scouts' inclusion of terms like "morally straight" in the Scout Oath and Law did not support a finthng that the organization taught opposition to homosexuality, especially in light of the fact that they thrected boys to seek advice on sexual matters from other sources).
224. Id. at 650 (majority opinion).
225. Id. at 651.
226. Many Roman Catholic, Protestant, Evangelical, Jewish, and Muslim groups, as parts of established, institutionalized religions, would be able to cite internal documents similarly specific to those cited by the Ocean Grove Methothsts. See infra note 206.
227. Justice Scalia has quipped that while France is famous for having two religions and many thfferent cheeses, the United States is famous for having just two cheeses and many thfferent religions. Antonin Scalia & Stephen Breyer, A Conversation on the Constitution: Perspectives from Active Liberty and A Matter of Interpretation (Dec. 5, 2006) (remarks of Justice Antonin Scalia), http://www.acslaw.org/node/3909.
228. See Graff, supra note 155, at 37 ("Several Christian denominations have also recognized the religious value and spiritual thgnity that characterizes many same-sex relationships.").
229. Dale, 530 U.S. at 656.
230. See, e.g., Interview with William P. Wood, Senior Minister of First Presbyterian Church, in Charlotte, N.C (Oct 21, 2003) ("We are not an issues church."). One commentator, thscussing the increasing acceptance of same-sex relationships within certain religious groups, observed that [i]ncreasingly, religious organizations, congregations, and inthvidual spiritual leaders have concluded that their faiths require them to support equal marriage rights for same-sex couples. These beliefs have taken root among an array of religious communities, incluthng mainstream denominations of American Judaism and Christianity. Even within religions that formally oppose same-sex marriage, inthviduals and organizations continue to agitate for doctrinal change.
231. Graff, supra note 155, at 24.
232. Dale, 530 U.S. at 655.
233. Id.;
234. see ato Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (holthng that St. Patrick's Day parade organizers could prevent gay-rights advocates from advocating their views at the parade despite the fact that the parade was not held for the purpose of espousing any views on homosexuality).
235. Dale, 530 U.S. at 699-700 (Stevens, J., thssenting);
236. see also id at 660 (majority opinion) (thsmissingjustice Stevens's evidence as inapposite).
237. Id. ("[T] he fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a thfferent view.").
238. Id.
239. See Op. NJ. Att'y Gen., Div. on civil Rights, No. PN34XB-03008 (Dec. 29, 2008), available at http://www.nj.gov/oag/newsreleases08/ pr20081229a-Bernstein-v-06CMA.pdf see also Associated Press, supra note 3 (reporting on the finthng of probable cause).
240. Ocean Grove Camp Meeting Ass'n of the United Methodist Church v. VespaPapaleo, Nos. 07-4253, 07-4543, 2009 WL 2048914, at *1-2 (3d Cir.July 15, 2009).
241. Act of March 3, 1870, ch. 157, 1870 NJ. Laws 397 (incorporating Ocean Grove "for the purpose of provithng and maintaining for the members and friends of the Methothst Episcopal Church a proper, convenient and desirable permanent camp meeting ground and [C]hristian seaside resort").
242. MORRIS S. DANIELS, THE STORY OF OCEAN GROVE 35 (1919) (quoting Ocean Grove's first president describing the Camp Meeting Association's "preeminently Religious" goals and stating that its "primary object" is to "keep its eye to the glory of God" and "to promote the highest forms of religious life").
243. 196Id.
244. Memorandum in Support of Motion for Preliminary Injunction at 5, Ocean Grove Camp Meeting Ass'n of the United Methothst Church v. Vespa-Papaleo, No. 3:07-cv-03802 (D.N.J. Aug. 25, 2007).
245. Id. at 7.
246. Id.
247. Id.
248. Id.
249. Id. at 8.
250. A second lesbian couple, Janice Moore and Emily Sonnessa, also challenged Ocean Grove's denial, but the New Jersey Division on Civil Rights found no probable cause for their allegations. See Ocean Grove Camp Meeting Ass'n of the United Methothst Church v. Vespa-Papaleo, Nos. 07-4253, 07-4543, 2009 WL 2048914, at *1-2 n.2(3dCir.July 15,2009).
251. Ocean Grove Camp Meeting Ass'n of the United Methothst Church v. VespaPapaleo, No. 07-3802, 2007 WL 3349787 (D.N.J. Nov. 7, 2007) (holthng that the Younger abstention doctrine counseled the federal thstrict court to allow the New Jersey courts to continue adjuthcating the penthng state proceethng due to issues that implicated important state interests and plaintiff's ability to raise constitutional challenges in state court).
252. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000).
253. On marriage, the Book of Discipline both affirms the Church's view of traditional marriage and thsapproves of same-sex marriage. THE BOOK OF DISOPUNE OF THE UNITED METHODIST CHURCH 2008, SOCIAL PRINCIPLES, ¶161C (2009) ("We affirm the sanctity of the marriage covenant that is expressed in love, mutual support, personal commitment, and shared fidelity between a man and a woman.");
254. id. ¶ 341 ("Ceremonies that celebrate homosexual unions shall not be conducted by our ministers and shall not be conducted in our churches."). Regarthng homosexuality, the Book of Discipline states clear opposition to the compatibility of homosexual practice with Methothst teaching.
255. Id. ¶ 161F (noting that the "United Methothst Church does not condone the practice of homosexuality and considers] this practice incompatible with Christian teaching").
256. Cf. Hurley v. Irish-Am. Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 575 (1995) ("[I]t boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.").
257. Dale, 530 U.S. at 692 (Stevens, J., thssenting) ("The majority does not rest its conclusion on the claim that Dale will use his position as a Bully pulpit. Rather, it contends that Dale's mere presence among the Boy Scouts will itself force the group to convey a message about homosexuality").
258. Id. at 653 (majority opinion). The effect of the damage in the Ocean Grove case is not distinguishable from Dale simply because the lesbian couple thd not seek to become "members" of Ocean Grove.
259. Id. at 678 (Stevens, J., dissenting) (citing Roberts v. U.S. Jaycees, 468 U.S. 609 (1984)).
260. Zd. at 679.
261. Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987).
262. See Dale, 530 U.S. at 682 (Stevens, J., dissenting) (discussing principles articulated in Jaycees and Rotary Club regarding how to prevail on a claim of expressive association).
263. Id.
264. Justice Stevens opened his dissent with a rousing recognition of New Jersey's desire to "eradicate the cancer of unlawful discrimination of all types" from society. Id. at 663 (quoting Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465, 478 (N.J. 1978)).
265. Id. at 686 ("[T] hat inquiry requires our independent analysis, rather than deference to a group's litigating posture.").
266. Id. at 687 ("If this Court were to defer ⋯ there would be no way to mark the proper boundary between genuine exercises of the right to associate ⋯ and sham claims.").
267. Id.
268. Id. at 671-73.
269. Id. at 672.
270. BOOKOFDISCIPUNE, supra note 206, ¶161F.
271. Dale, 530 U.S. at 671, 676 ("[Boy Scouts] never took any clear and unequivocal position on homosexuality.").
272. See, e.g., id. at 675.
273. Id.
274. Justice Stevens concluded that despite the Boy Scouts' internal policy statements declaring that the Boy Scouts do "not believe that homosexuality and leadership in Scouting are appropriate," "nothing in these policy statements supports" the Boy Scouts' claim. Id. at 671, 676 (emphasis added) (internal quotation marks omitted).
275. See id. at 684 ("The evidence before this Court makes it exceptionally clear that [Boy Scouts] has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuahty.").