Moral Mandate or Personal Preference? Possible Avenues for Accommodation of Civil Servants Morally Opposed to Facilitating Same-Sex Marriage

I. INTRODUCTION As many states begin allowing same-sex marriage, civil servants with certain religious beliefs will be forced to either perform marriages they morally oppose or resign, effectively "choosfing] between conscience and livelihood."1 This clash of belief and vocation has already occurred for some individuals,2 and it will certainly reoccur as same-gender marriage is permitted in a growing number of states.3 Despite this conflict, no state has accommodated the religious beliefs of the civil servants directly involved in the marriage process.4 Recently, scholars have argued that both empirical evidence5 and the very justifications for same-sex marriage6 support the accommodation of civil servants with a conscientious objection to facilitating same-sex marriages. They argue that, although some individuals may see religious beliefs as mere preferences, this attitude ignores the role of religion in the history of our nation and in the life of the believer and the goal of creating a tolerant and accepting society, a goal proponents of same-sex marriage advocate.7 This Comment agrees with other scholars who assert that civil servants' beliefs are legitimate, important, and worthy of accommodation, and furthers this discussion by reviewing how these beliefs may best be accommodated. When considering how to best accommodate civil servants with a conscientious objection to samesex marriage, it can be helpful to examine how conscience is already accommodated in other situations. This Comment examines both the primary avenues of accommodation8 and the specific accommodations available9 in a variety of contexts. This Comment, based on a review of other exemptions, concludes that enacting legislation to accommodate civil servants while still providing equal service to all members of the public10 would be both the most effective method of accommodation and the method most likely to be enacted by legislatures. The current methods of accommodation provide little protection for conscientious objectors because legislatures enact them infrequently and courts interpret them narrowly.11 Before reaching these conclusions, Part II of this Comment first describes the current state of the law. It does this by 1 ) providing an overview of the limited religious accommodations that currently exist for objectors to same-sex marriage and 2) summarizing justifications for accommodation of civil servants. Part III then presents the history and development of conscientious objection in the United States. Part IV provides an overview of the currently available avenues of accommodation of religious belief in the United States. Part V reviews how various avenues are used to accommodate conscientious objectors in a variety of different contexts. Finally, in Part VI, this Comment 1) concludes that the best avenue for accommodation is ad hoc exemptions and 2) explores how ad hoc exemptions can effectively accommodate civil servants who object to facilitating same-sex marriage. II. CURRENT STATE OF AFFAIRS: THE NEED FOR ACCOMMODATION OF CLVIL SERVANTS WHO OBJECT TO SAME-SEX MARRIAGE A. Public Concern About Effects of Same-Sex Marriage on Religious Organizations In the same-sex marriage debate, there has been a great deal of concern over the effect that same-sex marriage would have on religious organizations. For example, when Proposition 8, a proposed amendment to the California constitution stating that "[o]nly marriage between a man and a woman is valid or recognized in California,"12 was under consideration by the citizens ofthat state, many supporters of the amendment argued that without it, individuals' religious freedom would be taken away.13 One specific ad quoted San Francisco Mayor Gavin Newsom's statement that "[same-sex marriage is] gonna happen, whether you like it or not."14 This ad, seen as one of the most effective ads supporting the amendment,15 proceeded to list what the proponents of the amendment felt could happen if it were not passed, which included the claim that "churches could lose their tax exemption. …