Fifth place — Law student essay contest: Nick Ormes

FFRF awarded Nick $750.

By Nick Ormes

The U.S. Supreme Court has held that marriages of opposite-sex and same-sex couples must be afforded “equal dignity” before the law. This clear command has not stopped many states from trying to curtail access to same-sex marriage, usually under the moniker of “religious freedom.” These religious refusal or conscience clause bills are aimed at restricting a variety of civil rights, but those aimed at limiting same-sex marriages are abundant in state legislatures.

One such bill was recently filed in the Texas Legislature, ostensibly to protect the religious freedom of state officials who can perform marriage ceremonies. The bill is currently in committee in both branches of the Texas Congress. The bills have nearly identical language, except that the House version allows recusal for “sincerely held religious belief or conscientious objection,” while the Senate version only allows recusal for “sincerely held religious belief.” Texas law authorizes any justice or judge of the state as a person able to perform marriage ceremonies. The Senate bill fails to strike an appropriate balance between the religious rights of state officials and the civil rights of those most likely to be affected by this bill:  same-sex couples.

There are three primary issues with the bill: It protects religious expression to the exclusion of the civil rights of same-sex couples, it targets same-sex marriages and provides no relief to any couple denied a marriage, and it raises the religious beliefs of elected judicial officials above current law.

Religious expression already enjoys broad protections under current law, including providing reasonable accommodations based on religious beliefs. Following the Supreme Court’s decision in Obergefell, the Texas attorney general wrote an opinion on the constitutionality of judges and clerks refusing to perform marriages based on religious beliefs. This opinion concluded that a judicial officer could refuse to perform a same-sex marriage ceremony if another authorized official was available to perform the ceremony. While this position fails to consider the civil rights of same-sex couples fully, it provides some type of accommodation between religious rights and civil rights.

The balance that this bill creates would significantly burden same-sex couples’ right to marry while granting far too much power to the religious rights of judicial officials. The bill gives no consideration to whether another official is available to perform the marriage. It would be entirely possible for Texas to have counties where no judicially overseen same-sex marriages occur. While this may be an extreme situation, the bill would clearly allow it. In fact, the bill would insulate judicial officials from paying civil damages if this situation did exist. It even would protect that judicial official from being subject to “a law, policy, or adverse action of [the] state” by claiming as a defense that it violates this bill. A judicial official can even bring a civil claim against “a law, policy, or adverse action” that would require them to perform a marriage ceremony.

Same-sex couples already face discrimination in other sectors of society, and this history of discrimination implies that this bill is meant to limit same-sex marriages.

There is a long history of discrimination against same-sex couples in Texas. The Texas House of Representatives once proposed legislation that would have stripped government employees who granted a same-sex marriage of their jobs and benefits. The state criminalized same-sex intimacy. Even the Texas attorney general’s opinion following Obergefell demonstrates this history. 

This bill’s true purpose is to limit same-sex marriages, not to protect religious freedom. The bill protects “sincerely held religious beliefs” without any consideration of countervailing interests. The bill requires a court overseeing a case brought against an official for refusing to perform a marriage to ignore the civil rights of a same-sex couple entirely. It denies judicial relief to same-sex couples.

If the bill’s main purpose was to protect religious expressions, then it could require a judge to provide reasonable accommodations to the couple. It could, at the very least, require that there was one official who is available to perform the ceremony if other officials refuse to marry same-sex couples. Instead, there is no protection offered to any couple refused by a judge.

The “religious protection” of these conscience clause bills creates a privilege unique to religious persons. Sticking with the Texas bill, if a judge refused to marry a same-sex couple based on the official’s sincere belief that civil marriage is restricted to a man and woman, that would be illegal. However, if that same official refused due to a belief that only marriage between a man and woman is proper according to some higher power, that would be legal. All of these laws provide a unique right to religious persons to refuse to comply with the law that does not exist for secular views.

Further, all of these laws grant a right to discriminate on religious grounds, sometimes in blatant violation of the law. These bills generally allow religious refusals for a variety of civil rights, usually targeting minorities. In addition to inviting discrimination against same-sex couples, the Texas bill adds a new subsection to existing Texas law. The purpose of this subsection is to guarantee that discrimination on the basis of sexual orientation is allowed. Sexual orientation is not a protected class under current law, but this bill is aimed toward encouraging religious persons to discriminate against same-sex couples.

In sum, the Texas bill would create an inequitable balance between the religious expressions of judicial officials and the civil rights of same-sex couples.

First, the bill would prefer a judge’s religious beliefs over a same-sex couple’s right to marry. Second, the history of targeting same-sex relationships in Texas and the lack of protection given to same-sex couples indicates that the thrust of this law is to limit same-sex marriages, not protect religious expression. Lastly, this bill and other “conscience clause” bills grant a dangerous religious privilege and empower religious persons to use religion as a weapon. 

Nick, 24, attends the Indiana University Maurer School of Law and attended Indiana University as an undergrad, earning a B.S. in psychology. He grew up in Crown Point, Ind., but said his move to the college town of Bloomington “really opened me up to other ways of thinking and people of different backgrounds.”