Amid predictions that the courts will now bear the laboring oar in bringing the marriage equality debate to conclusion in New Jersey, it is tempting to assume the pressure is off the Legislature to consider overriding the governor’s veto of the Marriage Equality and Religious Exemption Act (S-1). We disagree, and ironically, a large part of the rationale that enactment of the law is still very necessary is in order to cater to the interests of social conservatives, who fervently argue for a broad religious exemption that only the legislation can provide.
Not only would S-1 enact civil marriage equality. It contains provisions intended to leave decisions about religious marriage to religions. It thus provides definite assurances regarding the free exercise of religion that are ultimately protected by the First Amendment to the U.S. Constitution and by art. 1, par. 4 of the N.J. Constitution. It provides that no member of the clergy of any religion shall be required to solemnize any marriage in violation of the free exercise of religion, and also that no religious society, institution or organization in this state serving a particular faith or denomination shall be compelled to provide space, services, advantages, goods or privileges related to the solemnization, celebration or promotion of marriage, if that marriage is in violation of the beliefs of the religious organization.
Those who advocate for a generous religious exemption from the effects of civil marriage equality would do well to consider whether they could do any better without enacting S-1. While we agree that the guarantees of free exercise of religion contained in the federal and state constitutions would, at some point, bar the state from forcing religious entities actively to engage in practices inconsistent with their faith, identifying the precise location of that point of constitutional compulsion would be laborious and protracted if left to the deliberative processes of constitutional adjudication.
Judges can and should only decide issues before them in particular cases. The religious exemption issue is not before the courts in Garden State Equality v. Dow and is therefore unlikely to be addressed unless and until a proper case comes along. It could take many years and expensive litigation to define fully that which the Legislature can enact with certainty today. In the meantime, those who adhere to sincere religious proscriptions inconsistent with marriage equality would be left in a prolonged period of uncertainty as to their legal obligations. With tightened language and carefully crafted definitions, legislation can achieve the dual goals of marriage equality and religious rights.
Even after waiting for years for the courts to fashion a judicially crafted religious exemption doctrine, there is no guarantee that it will be as broad as that which the Legislature is willing to provide today. The courts would likely craft a rule that they believe is required by the Free Exercise Clause, but no more. A legislature, on the other hand, is permitted as a matter of policy to be more expansive in accommodating religious exercise than the bare minimum that is constitutionally required, and, within reason, can do so without running afoul of the countervailing limits established by the Establishment Clause. As the U.S. Supreme Court has stated in the so-called “zone of accommodation” cases, “The limits of permissible state accommodation to religion are by no means co-extensive with the noninterference mandated by the Free Exercise Clause.” The policy decision to be more expansive than the Constitution requires, however, can only be made by the Legislature, not the courts, thus making enactment of S-1 still a very live and relevant issue.
Enactment of S-1 would also benefit other classes of persons who would otherwise remain in a state of legal uncertainty awaiting future judicial resolution. The bill makes clear that couples who had previously entered into a civil union under the 2006 Civil Union Act would automatically be considered married, nunc pro tunc, without need of a new ceremony. Their status if Judge Mary Jacobson’s ruling is merely affirmed by appellate courts is less clear.
Enactment of S-1 would also, we believe, effectively negate Attorney General Opinion 2007-3, which, as we have earlier opined, erroneously concluded that a valid out-of-state same-sex marriage should be recognized merely as a civil union in New Jersey, since there would no longer be any such thing in New Jersey as a civil union. For all these reasons, we urge the Legislature to continue consideration of enactment of S-1 through the veto override process.