By Greg Sager*
From the outset, this discussion requires a precise definition of civil marriage as “a civil contract”3 entailing a set of legal rights and responsibilities.4 It is not a religious ritual. Accordingly, the Massachusetts Supreme Judicial Court has distinguished civil and religious marriage, declaring the former a “wholly secular institution” which has never required any religious intervention.5 The issue of civil marriage raises legal questions, while the issue of religious marriage raises non-justiciable ecclesiastic questions.6
I. Jewish Perspectives
A. The Orthodox Movement7
The daily lives of Orthodox Jews revolve around observance of halacha (Jewish law).8 Adhering strictly to traditional halachic interpretation, the Orthodox Movement maintains that Judaism forbids not only same-sex marriage but all homosexual conduct.9 It cites the Shulchan Aruch’s holding10 that men should not spend time secluded together11 and the Talmud’s conclusion that, despite Judaism’s aversion to self-sacrifice,12 one should die before committing an act of sexual immorality.13 Nevertheless, Orthodoxy seeks to distinguish homosexuals (whom the community should support) from homosexuality (which it should not).14
The Orthodox Union and Agudath Israel of America oppose legalization of civil same-sex marriage, arguing that the government should promote laws reflecting society’s moral consensus.15 In addition, the Rabbinical Council of America refuses to condone any Jewish ritual recognizing same-sex unions,16 warning that a rabbi participating in such a ceremony would violate halacha and thereby forfeit the mantle of Orthodoxy.17 In its belief that the birth of a child requires participation from a mother, a father, and God, the Orthodox Movement views traditional religious marriage as a paradigm for divine relationships.18 It therefore holds that, in order to avoid weakening the family, marriage must remain between one man and one woman.19
B. The Conservative Movement20
The Conservative Movement, regarding halacha as binding but reinterpreting it progressively in response to the complexities of modern society,21 has not enumerated a clear official position on civil same-sex marriage. In 2006, the Rabbinical Assembly’s Committee on Jewish Laws and Standards (CJLS) approved two contradictory teshuvot (responsa) relating to homosexuality.22 One holds that the Talmud allows the protection of human dignity to preempt biblical law,23 concluding that the Movement should continue to prohibit homosexual conduct but should take steps including ordination of homosexual rabbis.24 The other argues that while homosexuals should share fully in the rights of synagogue membership, Conservative Judaism should provide no commitment ceremonies and should not knowingly admit sexually active homosexual students to Conservative seminaries.25
Despite the CJLS’s ambivalence, Conservative institutions subsequently began to embrace homosexual Jews. In 2007, the Jewish Theological Seminary26 began welcoming homosexual rabbinic students, ordaining its first gay rabbi in 2012.27 That year, the CJLS also created a religious same-sex marriage ritual, allowing Conservative rabbis to perform it in any jurisdiction recognizing civil same-sex marriage.28 It did not, however, alter the official Conservative position on civil marriage.
C. The Reform Movement29
The Reform Movement supports same-sex marriage.30 Rejecting the idea that halacha is binding,31 Reform Judaism encourages individuals to study Jewish laws and traditions and to practice those which bring them personal spiritual fulfillment.32 Instead of halacha, the Reform Movement focuses on Jewish values, of which tikkun olam (repairing the world) and b’tzelem Elohim (humans as created in God’s image) feature prominently.33 Citing a belief in ahavat Yisrael (love for the Jewish people),34 the Reform Movement holds that homosexual Jews must enjoy full inclusion in religious and secular life without discrimination.
Reform Judaism has long endorsed the civil rights of same-sex couples, passing several gay-rights resolutions, including two votes in 1977 opposing discrimination on the basis of sexual orientation,35 a 1993 measure encouraging congregations to extend spousal employment benefits to same-sex couples,36 and resolutions in 1996 and 1997 endorsing civil same-sex marriage.37 In 2000, the Central Conference of American Rabbis called for a religious ritual celebrating same-sex unions, while maintaining support for individual rabbis in deciding whether to officiate at such ceremonies,38 consistent with the Reform Movement’s emphasis on individual choice.39
II. The State of the Law
Unlike most states, Massachusetts provides no legal protection to individuals who refuse to perform same-sex civil marriages. Clerical authority to solemnize civil marriage is rooted in chapter 207, section 38 of the Massachusetts General Laws.40 Because this statute, on its face, provides permission (but no obligation) to act, the various religious officials authorized within section 38 can generally choose to abstain. However, in 2003, the Supreme Judicial Court, in Goodridge v. Department of Public Health, famously required Massachusetts to make civil marriage available to same-sex couples, ruling their exclusion to be unconstitutionally discriminatory.41 As the case dealt only with the rights of same-sex couples, there is nothing to suggest that the law would interfere with clergy’s right to refuse to perform a marriage on any other basis. However, to satisfy Goodridge, a clergy member acting on behalf of the Commonwealth who chooses to solemnize a civil marriage must do so without discriminating against same-sex couples.
A. State Action
When clergy members perform civil marriages, are they acting on behalf of the Commonwealth? While clergy are not state actors for most purposes, their exercise of civil marriage authority may nevertheless amount to state action. Although courts use several criteria, current jurisprudence fails to illuminate any clear answer as to whether clerical solemnization of marriage amounts to state action.42
State action can arise from the performance of functions traditionally encompassed within the “exclusive prerogative” of the government.43 Regulation of civil marriage has fallen within the exclusive domain of the Commonwealth since at least 1639.44 Only the state may confer marital status,45 but section 38 of Chapter 207 creates opportunities for would-be officiants to put up stumbling blocks to marriage. As a result, the Commonwealth has delegated to private actors some power over an aspect of marriage which it otherwise exclusively controls.
Still, the existence of state action here remains uncertain. State authorization alone is typically insufficient to create state action,46 as is “government function.”47 In addition, courts consider countervailing factors cutting against the appropriateness of attributing private conduct to the state.48 Here, a declaration that a clergy member has acted on the state’s behalf could raise Establishment Clause concerns that may dissuade a court from making such a finding despite otherwise persuasive arguments.49
Because of inconsistent application of these criteria, it remains unclear how a court faced with this question might rule.
B. No First Amendment Protection
Assuming clerical solemnization of civil marriage constitutes state action, would an order compelling nondiscriminatory officiation violate the First Amendment’s Free Exercise Clause? Despite a widespread assumption that the First Amendment protects clergy’s right to discriminate against same-sex couples,50 this belief stems from an erroneous reading of Free Exercise jurisprudence. Under Employment Division v. Smith, clergy must follow neutral laws of general applicability despite conflicts with their religious beliefs.51 Chapter 207 contains general licensing statutes, establishing the requirements for a legal marriage.52 Although the law, as interpreted in Goodridge, conflicts with some religious beliefs, it remains generally applicable, defining the steps all couples must take to obtain a marriage license. Furthermore, Chapter 207 is neutral as it does not directly target any existing religious practice.53 As a result, it does not violate the Free Exercise Clause and Massachusetts can enforce it over religious objections.
C. No State Law Protection
Has Massachusetts created any statutory protections for clergy with religious objections to same-sex marriage? Although such exemptions are not constitutionally required, they remain constitutionally permissible54 and most States have included them in statutes legalizing same-sex marriage.55 Massachusetts, though, is among the small number of States that have instituted same-sex marriage judicially with no legislative involvement.56
There are some bases on which Massachusetts clergy may legally discriminate, but within civil marriage sexual orientation is not one of them. For example, in matters of employment, the “ministerial exception” exempts clergy from antidiscrimination laws57 – but it applies only to employment. Similarly, in matters of religious marriage, institutions are free to set their own rules, even if those rules are discriminatory58 – but sacramental marriage (a religious ritual) is distinct from civil marriage (a legal contract). In terms of civil marriage, Massachusetts case law and statutes have failed to address the clergy’s right to refuse to perform for most reasons and most scholars presume such refusal to be legal.59 Thus, clergy in Massachusetts can discriminate in choosing whether to perform a civil marriage for any reason – except one.60
While the Supreme Judicial Court has not addressed racial, religious, or ethnic discrimination in marriage, it has struck down discrimination against same-sex couples. Goodridge mandates access to civil marriage for these couples and makes no exception allowing religious officiants to interfere with this right.61 In this context, none of the foregoing statutory protections apply, and nothing else in Massachusetts law protects clergy’s choice to discriminate against same-sex couples.
Because Massachusetts does not provide legal protection, the law could compel rabbis to perform same-sex marriages.62 For many reasons, though, such an order seems highly ulikely. No court in Massachusetts has ordered a clergy member to perform a marriage against his or her will. Just as Loving v. Virginia did not prompt a flood of litigation compelling the officiation of interracial marriages,63 Goodridge has not spawned action to compel individual performance of same-sex marriages. In addition, because rabbis have the absolute right to refuse to perform religious weddings,64 an enforcement order could only compel them to perform civil ceremonies. Couples looking for Jewish marriages – the impetus for seeking out a rabbi instead of a justice of the peace – would still need a separate religious ceremony. Instead of attempting to force an unwilling rabbi to perform half of a bifurcated wedding, most couples would rather find an amenable rabbi to officiate both.
Nevertheless, despite the unlikelihood of litigation, Massachusetts’ lack of religious protection and the specter of enforcement remain problematic for all three Movements. Although the Conservative and Reform Movements align with the values embodied in Goodridge, they would oppose an officiation requirement as an unconstitutional entanglement between church and state.65 The Reform Movement, in particular, has a long history of political advocacy for broad freedom of and freedom from religion.66 Enforcement of Goodridge against clergy would place the Reform Movement in the difficult position of choosing to support either religious freedom or same-sex marriage, each at the expense of the other.
The possibility of compelled officiation is most problematic for the Orthodox. At any sign of enforcement, rabbis of some Orthodox communities may simply stop solemnizing civil marriages altogether.67 Indeed, for Ultra-Orthodox Jews, who detach from secular society to maintain a fervently religious lifestyle,68 rejection of civil marriage’s legal obligations has already persuaded some to marry religiously but not civilly, leading to subsequent allegations of welfare fraud.69 Following an enforcement order, a further separation between civil and religious marriage may exacerbate this and other problems.
Increased Orthodox withdrawal from civil society would prove particularly burdensome for gay Orthodox Jews. For a variety of personal, cultural, and spiritual reasons, non-closeted homosexual Jews remain rare within Orthodoxy.70 Many who wrestle with this issue feel they have only three options: abandonment of their religious identity, suppression of their sexual orientation, or suicide.71 A further Orthodox retreat from secular society will only compound this sense of isolation and hopelessness.
While these problems all stem from the lack of a religious exemption to same-sex marriage requirements in Massachusetts, the Commonwealth can prevent them through administrative, legislative, or judicial action that addresses, for better or for worse, rabbis’ ability to discriminate against same-sex couples for religious reasons. Although the equal status of these couples under Massachusetts law is a settled issue, the debate regarding the propriety of religious influence over secular institutions remains a conversation worth having.
* Candidate Juris Doctor, 2016, Northeastern University School of Law.
1 The de facto beliefs of American Jews frequently differ from the de jure stances of the denominations with which they identify. The degree to which individuals agree with the beliefs of their Movement varies from Movement to Movement and from person to person. Overall, 83% of American Jews support the legalization of same-sex marriage. Robert P. Jones et al., A Shifting Landscape: A Decade of Change in American Attitudes About Same-sex Marriage and LGBT Issues 11 (2014).
2 35% of the American Jewish population identifies as Reform, 18% as Conservative, 10% as Orthodox (6% Haredi and 3% Modern Orthodox), and 30% as having no denomination. Pew Research Ctr., A Portrait of Jewish Americans
3 Inhabitants of Town of Milford v. Inhabitants of Town of Worcester, 7 Mass. 48, 52 (1810).
4 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003).
5 *Id. at 954. That a civil wedding ceremony requires no particular ceremonial language and may take place anywhere in the Commonwealth – not only in houses of worship – underscores the idea of civil marriage as a non-religious institution.
6 See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929) (“[T]he decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive….”); Bryce v. Episcopal Church in Diocese of Colo., 121 F. Supp. 2d 1327, 1336-37 (D. Colo. 2000) (“The Supreme Court of the United States has long held that civil courts are not the proper forum to decide matters of ecclesiastical concern.”); Fortin v. Roman Catholic Bishop of Worcester, 625 N.E.2d 1352, 1355 (Mass. 1994).
7 For the purposes of this article, the Orthodox Movement includes the Union of Orthodox Jewish Congregations of America (commonly known as the Orthodox Union) and the Rabbinical Council of America, both representing Modern Orthodoxy, as well as Agudath Israel of America, representing Haredi (or “Ultra-Orthodox”) Judaism.
8 See 8 Encyclopaedia Judaica 251, 251-57 (2d ed. 2007). Halacha, as used in this article, denotes the canon of Jewish law including the Torah, Mishnah, Talmud, and Midrash, as well as medieval commentaries and codes such as Joseph Caro’s Shulchan Aruch. Halacha is interpreted through teshuvot (responsa), 17 id. 228, 228-29 (2d ed. 2007), and amended through takkanot (legislative decrees), 19 id. 440, 440 (2d ed. 2007).
9 Leviticus 18:22; Joseph Caro, Shulchan Aruch, Even Ha-Ezer 20:2 (Sefaria trans., 2014); see Tzvi Hersh Weinrab, Orthodox Response to Same-Sex Marriage, OU Advocacy Ctr., (June 5, 2006, 2:28 PM), http://advocacy.ou.org/2006/orthodox-response-to-same-sex-marriage.
10 The Shulchan Aruch is the codification of halacha considered authoritative by Orthodox Jews. 8 Encyclopaedia Judaica, supra note 8, at 251-57.
11 Caro, supra note 9, at 24:1; Norman Lamm, Judaism and the Modern Attitude to Homosexuality, in Encyclopaedia Judaica Yearbook 1974 194 (Louis I. Rabinowitz ed., 1974).
12 See Deuteronomy 30:19.
13 Sanhedrin 74a, available at http://halakhah.com/pdf/nezikin/Sanhedrin.pdf; Lamm, supra note 11.
14 Weinrab, supra note 9.
15 Brief of Amici Curiae Acudath Israel of America and The Union of Orthodox Jewish Congregations of America in Support of Defendants-Appellees, Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941 (Mass. 2003) (No. SJC-08860), 2002 WL 32364760, at 5 (citing Bowers v. Hardwick, 478 U.S. 186, 196 (1986), *overruled by Lawrence v. Tex., 539 U.S. 558 (2003)).
16 Same-Sex Marriage, Rabbinical Council of Am. (Mar. 30, 2004), http://www.rabbis.org/news/article.cfm?id=100556.
17 RCA Reaffirms Policies Regarding Same-Sex Attraction and Marriage, While Clarifying Its Position on Reparative Therapy, Rabbinical Council of Am. (Dec. 12, 2011), http://www.rabbis.org/news/article.cfm?id=105665; but see Steven Greenberg, Op-Ed., The Case for Companionship, Jewish Week, Dec. 6, 2011, http://www.thejewishweek.com/editorialopinion/opinion/casecompanionship (describing the first and only Orthodox same-sex commitment ceremony, performed by an openly gay Orthodox rabbi who still maintains Orthodox ordination).
18 Weinrab, supra note 9.
19 Agudath Israel of America et al., Joint Statement by Four National Orthodox Jewish Organizations on NYS Gay Marriage Legislation, OU Advocacy Ctr. (June 20, 2007 3:25 PM), http://advocacy.ou.org/2007/jointstatementbyfournationalorthodoxjewishorganizationsonnysgay_m/.
20 For the purposes of this article, the Conservative Movement includes the rabbis of the Rabbinical Assembly and congregations served by the United Synagogue of Conservative Judaism.
21 8 Encyclopaedia Judaica, supra note 8, at 251-57.
22 See Elliott N. Dorff et al., Homosexuality, Human Dignity & Halakhah: A Combined Responsum for the Committee on Jewish Laws and Standards, Rabbinical Assembly (approved Dec. 6, 2006), http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/dorffnevinsreisnerdignity.pdf; Joel Roth, *Homosexuality Revisited*, Rabbinical Assembly (approved Dec. 6, 2006), http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/20052010/rothrevisited.pdf.
23 Dorff et al., supra note 22, at 10-11.
24 Id. at 18.
25 Roth, supra note 22, at 34.
26 The Jewish Theological Seminary is the Conservative Movement’s central learning institution. 11 Encyclopaedia Judaica 328, 328 (2d ed. 2007).
27 See Ben Sales, Conservative Rabbinic Group Issues Guidelines for Same-Sex Wedding Rituals, Jewish Tel. Agency (June 4, 2012, 2:33 PM), http://www.jta.org/2012/06/04/life-religion/conservative-rabbinic-group-issues-guidelines-for-same-sex-wedding-rituals.
28 Elliott N. Dorff et al., Rituals and Documents of Marriage and Divorce for Same-Sex Couples, Rabbinical Assembly, at 3 (Spring 2012), http://www.rabbinicalassembly.org/sites/default/files/public/halakhah/teshuvot/2011-2020/same-sex-marriage-and-divorce-appendix.pdf.
29 For the purposes of this article, the Reform Movement includes the congregations of the Union for Reform Judaism (formerly the Union of American Hebrew Congregations), the rabbis of the Central Conference of American Rabbis (CCAR), and the advocacy-based Religious Action Center of Reform Judaism.
30 See Amended Complaint at 1, Gen. Synod of the United Church of Christ v. Cooper, No. 3:14-cv-213, 2014 WL 2709300 (W.D.N.C., filed Apr. 28, 2014) (wherein the CCAR joined, as a plaintiff, the first federal lawsuit alleging that a state same-sex marriage ban violates its right to free exercise of religion); Eric H. Yoffie, President, Union for Reform Judaism, Sermon by Rabbi Eric Yoffie at the Houston Biennial (Nov. 19, 2005), available at http://urj.org/about/union/leadership/yoffie/biennialsermon05/ (“[W]e cannot understand why any two people who make a lifelong commitment to each other should be denied legal guarantees that protect them and their children and benefit the broader society.”).
31 8 Encyclopaedia Judaica, supra note 8, at 251-57.
32 A Statement of Principles for Reform Judaism, Cent. Conf. of Am. Rabbis (adopted May 1999), available at http://ccarnet.org/rabbis-speak/platforms/statement-principles-reform-judaism/.
33 Marla Feldman, Why Advocacy is Central to Reform Judaism, Religious Action Ctr. of Reform Judaism (2006), available at http://rac.org/kd/Items/actions.cfm?action=Show&itemid=1655&destination=ShowItem (“[W]e continue to see social justice as the jewel in the Reform Jewish crown.”) (quoting Eric Yoffie, Speech to UAHC Exec. Cmte. (Feb. 1998)); Reform Movement Perspective, Religious Action Ctr. of Reform Judaism, http://rac.org/Articles/index.cfm?id=3231 (last visited Sept. 27, 2014) (“[W]e are also guided by the very basic belief that all human beings are created b’tselem Elohim (in the Divine image)….”).
34 See A Statement of Principles for Reform Judaism, supra note 32.
35 Resolution Adopted by the 88th Convention of the Central Conference of American Rabbis on Rights of Homosexuals (1977), available at http://ccarnet.org/rabbis-speak/resolutions/all/homosexuals-rights-of-1977/; Resolution Adopted by the Union of American Hebrew Congregations, 45th Gen. Assembly on Human Rights of Homosexuals (Nov. 1977), available at http://urj.org//about/union/governance/reso//?syspage=article&item_id=2158.
36 Resolution Adopted by the Union of American Hebrew Congregations, 62d Gen. Assembly on Recognition for Gay and Lesbian Partnerships (Oct. 1993), available at http://urj.org//about/union/governance/reso//?syspage=article&item_id=2046.
37 Resolution Adopted by the 107th Convention of the Central Conference of American Rabbis on Gay and Lesbian Marriage (Mar. 1996), available at http://ccarnet.org/rabbis-speak/resolutions/all/on-gay-and-lesbian-marriage-1996/; Resolution Adopted by the Union of American Hebrew Congregation on Civil Marriage for Gay and Lesbian Jewish Couples (1997), available at http://urj.org//about/union/governance/reso//?syspage=article&item_id=2000.
38 Resolution Adopted by the 111th Convention of the Central Conference of American Rabbis on Same Gender Officiation (Mar. 2000), available at http://www.ccarnet.org/rabbis-speak/resolutions/2000/same-gender-officiation/.
39 See A Statement of Principles for Reform Judaism, supra note 32.
40 Mass. Gen. Laws ch. 207, § 38 (2014).
41 Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003).
42 At times, the U.S. Supreme Court has found no state action despite the coalescence of several relevant factors. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982). Thus, it may also prove useful to examine the purpose of viewing private conduct as state action: if a State is obligated to meet constitutional mandates, it cannot avoid its responsibilities by delegating functions to the private sector. Georgia v. McCollum, 505 U.S. 42, 53 (1992). Indeed, if civil marriage solemnization were not state action, the Commonwealth could effectively prohibit many such unions by delegating that function exclusively to religious leaders, although this may raise religious entanglement concerns under the First Amendment’s Establishment Clause. See Lemon v. Kurtzman, 403 U.S. 602, 613 (1971); Andrew C. Stevens, Comment, By the Power Vested in Me? Licensing Religious Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 Emory L.J. 979, 1009-10 (2014). As the Massachusetts Supreme Judicial Court has repeatedly reaffirmed Goodridge (see In re Ops. of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004); Schulman v. Attorney Gen., 850 N.E.2d 505 (Mass. 2006); Cote-Whitacre v. Dep’t of Pub. Health, 844 N.E.2d 623 (Mass. 2006)), it seems unlikely that it would undermine its own decision by declining to find state action and thereby excluding from protection all civil marriages to be solemnized by religious leaders.
43 Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974).
44 Commonwealth v. Munson, 127 Mass. 459, 461 (Mass. 1879).
45 Goodridge, 798 N.E.2d at 954.
46 See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 53 (1999) (noting that state authorization or encouragement does not create state action).
47 Martin A. Schwartz, Section 1983 Claims & Defenses § 5.14[A] (4th ed. 1995).
48 See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001).
49 See Stevens, supra note 42, at 997.
50 David Masci, States that Allow Same-Sex Marriage Also Provide Protections for Religious Groups and Clergy Who Oppose It, Pew Research Ctr., text accompanying tbl. (Nov. 20, 2013) http://www.pewresearch.org/fact-tank/2013/11/20/states-that-allow-same-sex-marriage-also-provide-protections-for-religious-groups-and-clergy-who-oppose-it/.
51 Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 878 (1990), superceded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 1993 U.S.C.C.A.N. (107 Stat.) 1488, invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).
52 Mass. Gen. Laws ch. 207, § 38 (2014); see Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 952 (Mass. 2003).
53 For examples of laws which conflict with religious beliefs but have nevertheless been found to be neutral, see Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 123 S.Ct. 694, 707 (2012) (declaring in dictum that the Americans with Disabilities Act is neutral with respect to religion); Prince v. Massachusetts, 321 U.S. 158, 170 (1944) (holding a child labor law constitutional despite incidental burdens on a mother’s ability to allow her child to distribute religious literature).
54 See Emp’t Div., Dep’t of Human Res. of Or., 494 U.S. at 890.
55 Stevens, supra note 42; see also, e.g., N.Y. Dom. Rel. § 10-b (McKinney 2011) (“[A] religious entity… shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal… shall not create any civil claim or cause of action or result in any state or local government action….”).
56 See Stevens, supra note 42, at 989 (noting that only Massachusetts and Iowa had legalized same-sex marriage through court rulings without providing statutory conscience exemptions); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Griego v. Oliver, 316 P.3d 865 (N.M. 2013).
57 Temple Emanuel of Newton v. Mass. Com’n Against Discrimination, 975 N.E.2d 433, 436-37 (Mass. 2012). Massachusetts’ employment antidiscrimination statute also includes an explicit ministerial exception. Mass. Gen. Laws ch. 151B, § 4 (2012).
58 Hosanna-Tabor Evangelical Lutheran Church & Sch., 123 S.Ct. at 706; In re Ops. of the Justices to the Senate, 802 N.E.2d 565, 570 (Mass. 2004). For example, the Orthodox and Conservative Movements can discriminate on the basis of religion by forbidding interfaith marriage.
59 See, e.g., Eric Alan Isaacson, Are Same-Sex Marriages Really a Threat to Religious Liberty?, 8 Stan. J. C.R. & C.L., 123, 140 (Apr. 2012) (noting that rabbis have faced no legal consequences for refusing to perform interfaith marriages); Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. Rev. 1417, 1476-77 (Sept. 2012) (enumerating various state-level protections for clergy refusing to perform interfaith marriages and citing no such protection in Massachusetts); but see Stevens, supra note 42, at 982 (concluding that such conduct, as relates to same-sex marriage, is likely unprotected).
60 The holding of Loving v. Virginia, striking down a Virginia anti-miscegenation statute, allows an inference that clergy acting on behalf of the Commonwealth cannot discriminate against interracial couples. 388 U.S. 1, 12 (1967). However, because there is no evidence of such discrimination in Massachusetts under Chapter 207, the law has never faced an as-applied challenge under Loving.
61 See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 948 (Mass. 2003). While footnote 29 in Goodridge provides some fodder for a claim that the Court may have intended to create a religious exemption, see id. at 965 n.29 (“Our decision in no way limits the rights of individuals to refuse to marry persons of the same sex for religious or any other reasons. It in no way limits the personal freedom to disapprove of, or to encourage others to disapprove of, same-sex marriage…”), subsequent judicial and administrative action has foreclosed this argument. In a 2004 advisory opinion, the Supreme Judicial Court clarified Goodridge, explaining that the footnote applied only to religious – not civil – marriage. In re Ops. of the Justices to the Senate, 802 N.E.2d at 570 (“The court stated [in Goodridge], and we reaffirm, that the State may not interfere with… the decision of any religion to refuse to perform religious marriages of same-sex couples.”) (emphasis added). Furthermore, soon after Goodridge took effect, the Romney administration ordered justices of the peace to “follow the law, whether you agree with it or not.” Katie Zezima, Obey Same-Sex Marriage Law, Officials Told, N.Y. Times, Apr. 26, 2004, http://www.nytimes.com/2004/04/26/us/obey-same-sex-marriage-law-officials-told.html.
62 See Larry Alexander, The Public/Private Distinction and Constitutional Limitations on Private Power, 10 Const. Comment. 361, 377 (1993).
63 But see Chris Nakamoto, Lawsuit Dropped Against Controversial Ex-Justice of the Peace, WBRZ News, Nov. 9, 2010, http://www.wbrz.com/news/lawsuit-dropped-against-controversial-ex-justice-of-the-peace (explaining how, forty-two years after Loving, the refusal by a single Louisiana justice of the peace to perform an interracial civil marriage spawned a single federal lawsuit, which the plaintiff couple dropped after the defendant justice of the peace resigned his position).
64 See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 877-78 (1990), superseded by statute, Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 1993 U.S.C.C.A.N. (107 Stat.) 1488, invalidated by City of Boerne v. Flores, 521. U.S. 507 (1997).
65 See Clifford E. Librach, Religion Is Good for America and Good for the Jews of America, Eilu V’eilu, Feb. 6, 2006, http://urj.org/archives/torah/ten/eilu/archives//?syspage=article&itemid=29440; *Jewish Values and the Separation of Church and State*, Religious Action Ctr. of Reform Judaism, http://rac.org/Articles/index.cfm?id=3321&pgeprgid=11285&pgeid=2391 (last visited Oct. 20, 2014).
66 Eric H. Yoffie, President, Union for Reform Judaism, Remarks by Eric Yoffie at Liberty University (Apr. 26, 2006) (transcript available at http://urj.org//about/union/leadership/yoffie//?syspage=article&item_id=6100); see also Press Release, Office of the Press Sec’y, President Obama Announces Another Key Administration Post (Jul. 28, 2014) (on file with author), available at http://www.whitehouse.gov/the-press-office/2014/07/28/president-obama-announces-another-key-administration-post (nominating Rabbi David Saperstein, former director of the Religious Action Center, as Ambassador at Large for International Religious Freedom).
67 See Josh Nathan-Kazis, Why Would Yeshivas Reject Pre-K Program Designed for Them?, Jewish Daily Forward, June 12, 2014, http://forward.com/articles/200006/why-would-yeshivas-reject-pre-k-program-designed-f/?p=all (detailing Orthodox groups’ rejection of public funding for full-day preschool programs due to city-imposed restrictions on recipients’ religious activities); Joseph Berger, Out of Enclaves, a Pressure to Accommodate Traditions, N.Y. Times, Aug. 21, 2013, http://www.nytimes.com/2013/08/22/nyregion/hasidic-jews-turn-up-pressure-on-city-to-accommodate-their-traditions.html?ref=nyregion&r=0&pagewanted=all (noting that Hasidic women stopped patronizing a New York City swimming pool because the City had stationed a male lifeguard there); *see also* Batsheva Sobelman & Edmund Sanders, *Ultra-Orthodox Jews Protest Jailing Parents Who Refuse School’s Desegregation*, L.A. Times, June 17, 2010, http://articles.latimes.com/2010/jun/17/world/la-fg-israel-school-20100618 (describing the decision by Ultra-Orthodox parents of students at a religious school in Jerusalem to withhold their children on religious grounds because the school was faced with court-ordered desegregation); *cf.* Patricia Wen, *Catholic Charities Stuns State, Ends Adoption*, Bos. Globe, Mar. 11, 2006, http://www.boston.com/news/local/articles/2006/03/11/catholiccharitiesstunsstateendsadoptions/ (explaining how, in light of the decision to grant adoption rights to same-sex couples in Massachusetts, Catholic Charities of Boston chose, for religious reasons, to cease providing adoption services altogether).
68 Avi Shafran, Don’t Call Us ‘Ultra-Orthodox’, Jewish Daily Forward, Feb. 24, 2014, http://forward.com/articles/193209/dont-call-us-ultra-orthodox/.
69 Michael Rosen, God Will Not Provide: Hasidic Jews and Fraud, 3 J.L. & Soc. Deviance 245, 262, 274 (2012).
70 See Trembling Before G-d (Cinephil 2001); see also Rukhl Schaechter, Haredi and out of the Closet: Chani Getter’s Unorthodox Journey, Jewish Daily Forward, Sept. 9, 2009, http://forward.com/articles/113747/haredi-and-out-of-the-closet/.
71 Trembling Before G-d, supra note 70; Nathan Jeffay, Rainbow Flags Aflutter, Orthodox Groups Enter a Float in Gay Pride Parade, Jewish Daily Forward, June 15, 2011, http://forward.com/articles/138719/rainbow-flags-aflutter-orthodox-groups-enter-a-flo/.