Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions
Witte, John, Jr., Nichols, Joel A., Faulkner Law Review
"Overlapping jurisdictions"--the theme of this symposium--is at the heart of some of the most volatile issues that arise under the First Amendment and attendant federal and state statutes guaranteeing religious freedom. The notion of "overlapping jurisdictions" includes two broad clusters of issues. One cluster concerns claims of conscientious objection to general laws. These are headline issues today. May the government require a minister to marry a same-sex or interreligious couple, a medical doctor or hospital to perform an elective abortion or assisted-reproductive procedure, a pharmacist to fill a prescription for a contraceptive or a morning-after pill, or a private employer to carry medical insurance for the same prescription--when all of those required actions run counter to those parties' core claims of conscience or central commandments of their faith? May a religious organization dismiss or discipline its officials or members because of their sexual orientation or sexual practices, or because they had a divorce or abortion? May a private religious citizen refuse to photograph or cater a wedding, to rent an apartment or car, or offer a general service to someone whose lifestyle or relationships they find religiously or morally wanting--especially when the state's laws of civil rights and non-discrimination command otherwise? (1) These new contests join older cases of conscientious objection to participate in the military, to swear an oath, to work on one's Sabbath or other holy days, to receive medical treatment, or to hire religious outsiders. (2) At the heart of all these contests are competing claims between the laws of the individual conscience and the laws of the organized communities of which that individual is a part. Whose law governs in instances of irresolvable dispute: the law of the state, of the religious community, or of the individual's conscience?
A second cluster of issues of overlapping jurisdiction and religion concerns the governance of institutions that, by their nature, have both spiritual and secular, religious and political dimensions. The classic institutions are education and schooling, charity and social welfare, and marriage and family life. These are what the Western legal tradition has long called the res mixta publica--the hybrid institutions of both the private and public spheres, of both spiritual and secular life, where religious and political authorities have always shared (and often contested) jurisdiction: the power to make and enforce their own laws. (3) These mixed institutions remain forums for sharp jurisdictional contests between religious and political officials in the United States.
The most perennial and prominent such contests are between private religious schools and public state-run schools. Dozens of Supreme Court cases and thousands of lower court cases over the past century have sought to sort out the place of religion in public schools, the place of government in private schools, and the wavering lines between private and public school faculties, facilities, students, programs, and services. (4) This is a prime place to find hard cases of overlapping jurisdiction, with a headline case appearing every year or two.
Charity and social welfare are becoming hotter areas of conflict, too. Beginning in the mid-1990s, (5) federal and state social welfare policies shifted from the state-centric programs inaugurated in the New Deal era half a century earlier to new programs that allow religious communities to play a more prominent role in providing charitable relief both at home and abroad. One of the new programs called "faith-based initiatives"--government programs that fund religious and other private charities to deliver social welfare and emergency relief services on the government's behalf--is the subject of growing cultural and constitutional battles today. (6) Some object to government financing of religious charities, or government use of religious facilities and programs to dispense aid and services. …