Albany Law Review
In June of 2015, the United States Supreme Court determined by a 5–4 ruling in Obergefell v. Hodges that same-sex couples have a constitutionally guaranteed right to marry. While this represents a momentous victory for homosexuals, many people are still vehemently opposed to the idea. Homosexuality is especially frowned upon in certain religions, including some sects of Christianity. Is it possible that attorneys who decline on religious grounds to provide legal services to same-sex individuals seeking divorces will be ordered to provide that representation? Might those attorneys be sanctioned if they fail to do so? These are both novel and difficult questions, but they are questions that will undoubtedly be raised. Attorneys need to consider them before they arise in their practices as potential issues.
An analysis of these issues will involve an inquiry into the lawyer’s role as both a private practitioner and an officer of the court. It will involve a discussion as to whether legal services are “public accommodations” for purposes of human rights acts. It will require an examination of legal ethics rules and principles. It will necessitate examination of the power of courts to order attorneys to represent clients. And, of course, it will require an investigation of the constitutional and statutory protections afforded to the religious beliefs and practices of attorneys.
In resisting a mandate to represent persons in same-sex marriages, the attorney should hope that eventually the legal system will reach a model of accommodation between the newly announced right to same-sex marriage and the sincerely held religious beliefs of those who wish not to participate. Accommodation, not coercion, should be the model.
Bill Piatt, Opting Out in the Name of God: Will Lawyers Be Compelled to Handle Same-Sex Divorces?, 79 Alb. L. Rev. 683 (2016).