I have mentioned that although opponents of same-sex marriage are threatening to defy any decision by the US Supreme Court that says that bans on same-sex marriage violate the constitution, they have been vague about what specific actions they might take. From North Carolina comes one possible tactic. Their Republican-controlled legislature passed a law that said that magistrates and clerks can choose to not perform same-sex marriages. The governor of the state, also a Republican who opposes same-sex marriage, had vetoed the bill on the grounds that employees of the state who have taken an oath to carry out faithfully the duties of their office should not be allowed to pick and choose whom they serve. But the legislature overrode the veto and this policy is now law.
This kind of ‘religious conscience’ exemption may be the best hope for opponents of same-sex marriage but at best it will merely slow down the process. It is not at all clear how many clerks and magistrates will take advantage of this exemption and as time goes by we can expect fewer as same-sex marriages become (as they should) ho-hum routine affairs of no concern to anyone except the people involved in such marriages.
But this move is similar to other religious exemptions being carved out, such as those allowing pharmacists to avoid dispensing prescription birth control medication if they object to it. One wonders how far this coddling of religious sensitivities can go.
There are certain classes of people (known legally as suspect classes) that cannot be discriminated against, such as those based on race, national origin, religion, or alienage. Any policy that discriminates on such a basis faces the highest standard known as ‘strict scrutiny’ whereby it must be shown that the government has a compelling interest in allowing such discrimination, a very high bar to overcome and rarely achieved.
If the discrimination does not affect a suspect class (note that gender or sexual orientation have not been ruled to be suspect classes) as is the case with these exemptions for marriage licenses and contraceptives, then the courts have to decide if the standard used to adjudicate is one of a ‘rational basis’ (the lowest standard where the state has to merely show that it has a rational basis for the action) or ‘heightened scrutiny’ (that lies somewhere between rational basis and strict scrutiny) or strict scrutiny. As far as I am aware, this has not been clearly decided.