Academic journal article Albany Law Review

Opting out in the Name of God: Will Lawyers Be Compelled to Handle Same-Sex Divorces?

Academic journal article Albany Law Review

Opting out in the Name of God: Will Lawyers Be Compelled to Handle Same-Sex Divorces?

Article excerpt

I. Introduction

In June 2015 the Supreme Court of the United States determined, by a 5-4 ruling in the case of Obergefell v. Hodges, (1) that same-sex couples have a constitutionally guaranteed right to marry. (2) Soon thereafter, a same-sex couple applied for a marriage license in Rowen County, Kentucky. (3) Kim Davis, the Rowen County clerk refused to issue the license, citing her own religious beliefs. (4) The couple brought suit against Ms. Davis, and she was ordered by a federal district judge to issue the license. (5) When she refused, she was held in contempt, and jailed for five days. (6) Ultimately U.S. District Judge David Bunning ordered Ms. Davis' deputies to issue the license in her stead. (7) Ms. Davis' actions brought her a great deal of notoriety. (8) Some of the publicity was positive with her actions being characterized "heroic," while others considered her to be a "homophobe," or a "Hitler." (9) While certainly dramatic, Ms. Davis' case was not the first time in recent history that courts or administrative bodies have imposed sanctions against citizens or private business operators who declined to provide goods or services to same-sex couples. (10)

In 2013, the Supreme Court of New Mexico considered a matter involving a photographer who had declined to photograph the commitment ceremony of one woman to another. (11) The photographer, Elaine Huguenin, indicated that she was "personally opposed to same-sex marriage and will not photograph any image or event that violates her religious beliefs." (12) The customers filed a discrimination complaint against the photographer with the New Mexico Human Rights Commission. (13) They alleged that the photographer had engaged in discrimination that violated the provisions of the New Mexico Human Rights Act. (14) The Act precludes discrimination by public accommodations on the basis of sexual orientation. (15) The New Mexico Human Rights Commission ruled against the photographer. (16) The photographer appealed, asserting that her constitutionally-protected First Amendment rights to the free exercise of her religion and expression allowed her to decline to participate in the event. (17) A state district judge granted the customer's motion for summary judgment. (18) The New Mexico Court of Appeals affirmed the ruling against the photographer and in favor of her customers, as did the Supreme Court of New Mexico. (19)

Also in 2015, the Bureau of Labor and industries of the State of Oregon considered a case involving a baker who declined to make a wedding cake for a same-sex couple. (20) The Commissioner determined that the bakery owners had violated the Oregon statute prohibiting discrimination in public accommodations on the basis of sexual orientation. (21) In addition, the Commissioner awarded money damages to the complainants in the total sum of $135,000, signifying compensatory damages for emotional, mental, and physical suffering resulting from the denial of service. (22)

These are but a few of the cases which have been brought against public officials and private individuals who have declined to provide services in the manner described so far. (23) Undoubtedly, more will follow. As Chief Justice Roberts notes in his dissenting opinion in the Obergefell case:

   Hard questions arise when people of faith exercise religion in
   ways that may be seen to conflict with the new right to same-sex
   marriage--when, for example, a religious college provides
   married student housing only to opposite-sex married couples,
   or a religious adoption agency declines to place children with
   same-sex married couples. Indeed, the Solicitor General
   candidly acknowledged that the tax exemptions of some
   religious institutions would be in question if they opposed
   same-sex marriage. There is little doubt that these and
   similar questions will soon be before this Court. (24)

The cases which have arisen so far, and the observations by Chief Justice Roberts, raise an important issue for lawyers. …

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