Religious Liberty, Discrimination, and Same-Sex Marriage: Escaping the \u3cem\u3eObergefell\u3c/em\u3e Catch-22

This Note will explore the tension between Justice Kennedy’s words in Obergefell v. Hodges regarding the decent and honorable premises behind the judgment of many Americans that same-sex marriage is immoral (or, strictly speaking, impossible), and the treatment afforded to those who attempt to live out those supposedly decent and honorable beliefs in the public square—bakers, florists, photographers, pizza connoisseurs, and more. It will assess the relationship between religious liberty, freedom of speech, and antidiscrimination laws by focusing on issues in the realm of sex and marriage, though complicity claims like the ones explored here arise in various other contexts, including at the intersection of health care, abortion, and contraception. The Note advances two main arguments for honoring complicity claims—claims against being made complicit in others’ conduct that one judges to be immoral or in expressing a message that one judges to be false—such as those advanced by Jack Phillips, the proprietor of Masterpiece Cakeshop. First, the Note argues that those making such complicity claims have a strong interpretive and conceptual argument that their conduct, rightly understood and described, falls outside the scope of the relevant antidiscrimination laws. Second, even if one disagrees with that argument and concludes that such cases do come within the ambit of the relevant antidiscrimination laws, there are strong reasons, rooted in the nature of religious liberty and the purpose of antidiscrimination law, against applying those laws to these actors and instead exempting them from their coverage by amending such laws and providing for such exemptions in future laws. Part I will examine the underpinnings of the right to religious freedom and defend its continued relevance and importance in the American constitutional order. Part II will discuss the purpose of antidiscrimination law generally and focus in particular on a type of antidiscrimination law aimed at protecting gay, lesbian, bisexual, and transgender people from discrimination: sexual orientation and gender identity (SOGI) laws. Part III will explore two cases concerning conscience-based refusals by bakers to supply goods for celebrations of same-sex marriages—Masterpiece Cakeshop v. Colorado Civil Rights Commission and Lee v. Ashers Baking Co.—and argue that complicity claims in such cases are best understood as not constituting discrimination based on a protected trait. Such complicity claims are thus outside the scope of typical SOGI laws. Part III will conclude by applying the insights gleaned from the first two Parts by underscoring the importance of enacting additional protections into law to reinforce the protections provided by the First Amendment and Religious Freedom Restoration Act so that those who object to being made complicit in the celebration of same-sex marriages are not pressured to do so as a condition of remaining in business