Marriage License Exemption Laws Unconstitutional, Analysis Shows

New Research by Columbia Law School's Public Rights/Private Conscience Project Shows That New Measures To Allow Public Officials To Claim Religion- or Conscience-based Objections to Issuing Marriage Licenses Are Unconstitutional
New York, July 1, 2015—On the heels of the U.S. Supreme Court’s recognition last Friday of a constitutional right to marry for same-sex couples in Obergefell v. Hodges, many conservatives have called for allowing public officials to refuse to issue marriage licenses to same-sex couples if doing so would offend their religious beliefs.
Columbia Law School’s Public Rights/Private Conscience Project has issued an analysis of the turn to religious liberty to justify non-compliance with the Obergefell decision.
“The arguments advanced by the advocates of these proposals on First Amendment grounds clearly misstate the law,” said Professor Katherine Franke, faculty director of the Public Rights/Private Conscience Project.  “The First Amendment’s protections for religious liberty do not permit a public employee to pick and choose which duties he or she will perform based upon their religious or other convictions.”
Texas Attorney General Ken Paxton, Louisiana Governor Bobby Jindal, the North Carolina Legislature, and other public officials have insisted that justices of the peace, magistrates, and judges can refuse to perform a public duty as part of a larger rejection of the Supreme Court’s ruling in Obergefell.   
The analysis makes clear:
  • Public officials’ duty to serve all members of the public impartially;
  • The unconstitutionality of marriage license exemption proposals under the First and Fourteenth Amendments to the U.S. Constitution;
  • That neither Title VII of the Civil Rights Act of 1964, nor the Supreme Court’s recent decision in Obergefell v. Hodges require such accommodations;
  • The unprecedented nature of the proposals;
  • The First Amendment’s Free Exercise Clause does not require religion- or conscience-based marriage license exemptions; and
  • That rather than “lawfully balancing” conflicting rights, as they claim to, these provisions would entrench a form of unconstitutional discrimination against same-sex couples immediately after their right to marry has been acknowledged by the U.S. Supreme Court.
“Our analysis demonstrates that there are both practical and dignitary harms to allowing public officials to refuse to marry same-sex couples," said Kara Loewentheil, director of the Public Rights/Private Conscience Project. “Doing so is bad policy and in some cases likely unconstitutional as well.”
The Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. The PRPCP conceptualizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.
The experts can be reached directly or via the Law School’s Public Affairs Office at 212-854-2650, or email [email protected].
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