Gay Weddings: A Note on Town Clerks, Florists, and Photographers in Response to Dorf

May a Town Clerk with religious objections to gay marriage assign the task of recording the marriage to a Deputy Clerk? Mike Dorf says no, in part because the act of recording is so remote from the marriage itself. There is a sense that the Clerk is excessively fastidious.  Similar arguments underpin the idea that the state may tell florists and photographers that they may not discriminate on the basis of sexual orientation and that they may be required to participate in gay marriages even if their religion forbids them to do. But the question should not be what society regards as too remote, too principled, too fastidious, too crazy, or too offensive. The free exercise clause protects those with extreme ideas of what counts as participation and it protects religions that from the perspective of society are too principled, too fastidious, too crazy, and too offensive.

The key question is whether the religious claimant sincerely objects on the ground that he or she is morally obligated to perform or not to perform a particular act. Just as the free speech clause protects the speech we hate, the free exercise clause protects extremists. Of course, sincere religious claimants will not always be protected. As Dorf observes, a postal employee has to deliver mail that facilitates conduct she believes to be immoral. Quakers are required to pay taxes for wars they (rightly) believe to be immoral. Contrary to Dorf, there is an important difference between these cases and the Town Clerk case, and the cases he cites do not turn on the remoteness principle. The difference is that it is unreasonable to expect the post office to accommodate the postal worker’s religious objections by hiring additional employees. And the risk of free riders is too great to permit religious objectors to opt out in large part because many with no religious objections to paying taxes would suddenly find “religion.” In the Town Clerk case a reasonable alternative is readily available.

crossposted at religiousleftlaw.com together with another post in response to Dorf's contention that religious objections to gay marriage should not be valued as highly as other religious objections