Briefing Room


Spindelman testifies before Ohio House

March 8, 2017 | Faculty

Professor Marc Spindelman appeared before the Ohio House of Representatives Community and Family Advancement Committee to give interested party testimony on the constitutionality of House Bill 36—referred to by sponsor Rep. Nino Vitale (R-Urbana) as the “Pastor Protection Act.”

Among its key provisions, H.B. 36 would permit ordained and licensed ministers and religious societies statewide to refuse to solemnize same-sex civil marriages when doing so would conflict with their sincerely held religious beliefs. In addition, the act also would authorize religious societies not to host marriage ceremonies on their property in accordance with their faith. Importantly, the act creates various immunity provisions to ensure that those who exercise the prerogatives that it supplies will not be held legally liable, either civilly or criminally, for their acts.

While some opponents of H.B. 36 argued that there is no need for this law, its central protections for clergy already being safeguarded by the U.S. and Ohio Constitutions, Spindelman maintained that it is not totally wrong to think that the United States Supreme Court’s landmark 2015 decision in Obergefell v. Hodges may have opened the door for potential liability for members of the clergy who refuse to solemnize same-sex civil marriages under state law. These actions could be seen as constituting a form of state discrimination against lesbians, gay men, and same-sex couples. This being so, H.B. raises critical constitutional questions that, in the right case, will be for the U.S. Supreme Court to resolve.

“Because the conflict in this instance is of a constitutional character, the relief in this instance must also be constitutional and must come from the Supreme Court speaking in the U.S. Constitution’s name,” Spindelman testified.

Obergefell v. Hodges guarantees the right to marry to same-sex couples under the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. Since Obergefell, some ordained ministers whose religious beliefs are at odds with the ruling have raised concerns over their liability for refusing to solemnize same-sex civil marriages that they are now required by law to celebrate.

Against the view that Obergefell does not open the door for potential liability for clergy who refuse to civilly marry same sex couples, a close reading of Obergefell sees that prospect. Obergefell’s declaration that the Constitution prohibits both the federal government and individual states from discriminating against lesbians, gay men, and same-sex couples is a rule that binds the agents who act on their behalf. This is easy to see in the case of judges and other secular marriage officiants, but the teaching applies by its own force to all state agents, including clergy.

“The State cannot constitutionally transfer to its agents authority that it itself constitutionally lacks,” Spindelman testified, adding that allowing religious officials to refuse to perform civil marriages based on religious grounds, while granting civil and criminal immunity, attempts a transfer of power that the state legislature is not constitutionally authorized to do. “As a form of State action itself, it permits the clergy—here, the State’s agents—to do what the State, their principal for civil marriage purposes, concretely must not: discriminate against lesbians, gay men, and same-sex couples by not marrying them on a religious scruple,” he said.

A close look at Obergefell suggests how the issues raised in the Pastor Protection Act are to be resolved: not in the political arena, but by the Supreme Court. And, according to Spindelman, there is very good reason to think that the Court, given the right case, would afford constitutional protections to the religious liberties of clergy who refuse to perform same-sex civil marriages.

Obergefell’s sensitivities to the spiritual nature of decision-making in the marriage setting, its invocation of the First Amendment rights of religious organizations and persons in the course of its ruling, combined with its approval of decisions that themselves expressly recognize the religious liberties of clergy, taken together, amount to some good reasons for thinking that the Supreme Court would—given the right case—likewise protect as a constitutional matter the religious liberty of clergy who, on religious grounds, refuse to participate in the civil marriages of same-sex couples,” Spindelman testified.

Although Spindelman’s testimony argues that H.B. 36 is unconstitutional, it also underscores that the legislation raises many critically important questions regarding the resolution of conflicts between civil rights and religious liberties when they collide.

“For now, the pastor protections contemplated by H.B. 36 are to be referred to the courts, including the Supreme Court, for final resolution,” Spindelman said. “But the political debate that the measure has opened up, not dispositive of the constitutional question that H.B. 36 seeks to settle, and the community of political action and engagement and conversation it has inspired as reflections of our democratic processes of deliberation working mean that the measure, whatever its constitutional flaws, is scarcely for naught.”

A copy of Spindelman’s testimony can be read here.