Analysis of Statutory Religious Accomodations for State-Employed Religious Objectors to Same-Sex Marriage Solemnization

Authors

Nicholas J. Schilling Jr., Notre Dame Law School, JD Candidate 2017

Abstract

The Supreme Court’s landmark decision in Obergefell v. Hodges legalized same-sex marriage. The decision aggravated a tension between advocates of protection of religious beliefs that reject as wrong same-sex marriage and sponsors of the new legal norm of same-sex marriage as a fundamental right.

Prior to—and in response to—the Supreme Court’s decision in Obergefell, at least ten state legislatures debated bills that would provide exemptions for state officials who, on religious grounds, objected to the certification of marriage licenses for same-sex couples. Unless otherwise established by state law, officials who swear an oath to protect and defend the Constitution must carry out the legal duties imposed by that oath—including certifying same-sex marriages. In North Carolina and Utah, these religious exemption bills passed and are now operational. In Alabama, Arkansas, Louisiana, Missouri, Minnesota, Oklahoma, South Carolina, and Texas, similar such bills failed to become law through the legislative process.

This Note proposes model legislation for states seeking to implement a religious accommodation scheme that respects the contours of the right articulated in the Obergefell decision. Before introducing the model statute, the Note provides insight into several preliminary matters. First, the Note provides background on the propriety of religious accommodations schemes and then explores why states may seek to implement such a scheme. Moreover, the Note analyzes the accommodation schemes adopted by the state legislatures in North Carolina and Utah, and the inferred accommodation scheme promoted by the Texas Attorney General. The treatment of these issues serves as the foundation for the Note’s proposed model statutory accommodation scheme.

Recommended Citation

Nicholas J. Schilling Jr., Analysis of Statutory Religious Accomodations for State-Employed Religious Objectors to Same-Sex Marriage Solemnization, 31 Notre Dame J.L. Ethics & Pub. Pol'y 431 (2017).
Available at: https://scholarship.law.nd.edu/ndjlepp/vol31/iss2/7