Free Exercise & Hybrid Rights: An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans

Massachusetts became the first state to legalize same-sex marriage in November 2003. Following in the wake of an earlier state court decision mandating domestic partnership rights for same-sex couples, the Massachusetts ruling seemed the harbinger of a growing movement in favor of full legal equality for same-sex couples. But rather than serving as a model for other states to emulate, the victory for gay rights in Massachusetts has provoked a flurry of legislative and judicial activity designed to protect the traditional definition of marriage as the union of one man and one woman. In Fall 2004, thirteen states passed constitutional amendments designed to eviscerate legal challenges to the denial of a same-sex marriage right. A total of 44 states now have statutory or constitutional language precluding legal recognition of same sex marriages. Proponents of a right to same-sex marriage have argued that these laws violate constitutional guarantees of equal protection and substantive due process by depriving an identifiable class of citizens of the fundamental right to marry the person of their choice. However, such constitutional challenges to same-sex marriage bans have recently been rejected by the highest state courts in New York and Washington, while highest courts of Georgia and Tennessee have recently upheld same-sex marriage bans against procedural challenges. Even Massachusetts may ultimately reverse course, with voters facing a proposed constitutional amendment to prohibit same-sex marriage in 2008. Although legal challenges are still pending in New Jersey, California, Iowa and Maryland, the recent string of setbacks suggests waning judicial and political support for same-sex marriage. However, support for same-sex marriage has been building momentum on another front. Increasingly, religious organizations, congregations, and individual spiritual leaders have concluded that their faith requires them to support equal marriage rights for same-sex couples. These beliefs have taken root among an array of religious communities, including mainstream denominations of American Judaism and Christianity. Even within religions that formally oppose same-sex marriage, individuals and organizations continue to agitate for doctrinal change. This article suggests that as religious support for same-sex marriage increases, a free exercise challenge to same-sex marriage bans might succeed where other constitutional challenges have failed. In Employment Division v. Smith, the Supreme Court held that free exercise challenges to neutral, generally applicable laws warrant only rational basis review. However, Smith created an exception in cases where a challenged regulation implicates hybrid-rights by burdening religious freedom in combination with another constitutionally protected right. Under these circumstances, Smith requires that a challenged regulation must be justified as advancing a compelling governmental interest to withstand strict judicial scrutiny. Part I of this article explores the Supreme Court's evolving free exercise jurisprudence, focusing on the hybrid rights doctrine articulated in Smith. Part II discusses the extent to which same-sex marriage bans burden religious exercise. Part III outlines the contours of potential companion claims for a hybrid rights challenge by assessing the incremental expansion of the fundamental right to marry, and the evolving constitutional approach to claims of discrimination based on sexual orientation. Finally, Part IV concludes that religious exemptions from same-sex marriage bans are required under a hybrid rights analysis.