SCOTUS up angle1Written by Don Byrd

Yesterday, I posted something of a preview of today’s Supreme Court oral arguments regarding the legal status of same-sex marriages. One theme I tried to emphasize is that the questions the Court is considering are not rooted in the First Amendment. These are fundamentally not religious liberty questions; instead, the petitioners argue certain marriage bans violate their right to equal protection under the law as guaranteed by the 14th Amendment.

One thing both sides of the debate agree upon, I assured, is that the Court’s decision in the case would not jeopardize the well-established First Amendment right of ministers to perform or not perform marriage ceremonies of their choosing. “Don’t let anyone tell you otherwise,” I wrote. Or, as BJC Counsel Holly Hollman put it in her recent column on the subject, “Despite common rhetoric, I am unaware of any credible public voice seeking marriage equality who is trying to force objecting clergy or houses of worship to perform or host a same-sex marriage ceremony.”

One person who apparently did not read yesterday’s post is Supreme Court Justice Antonin Scalia, who in questioning today warned that clergy might not be free to refuse to perform such a ceremony should the Court ruled in favor of same-sex marriage protections. In fact, he struggled to think of any reason why clergy would not be forced to perform objectionable marriage ceremonies.

Fortunately, others at the Court came to the rescue. The transcript of that exchange is below:

JUSTICE SCALIA: [I]s it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men if indeed this Court holds that they have a constitutional right to marry? Is it conceivable that that would be allowed?

MS. BONAUTO (attorney for the petitioners): Your Honor, of course the Constitution will continue to apply, and right to this day, no clergy is forced to marry any couple that they don’t want to marry. We have those protections.

JUSTICE SCALIA: But — but right to this day, we have never held that there is a constitutional right for these two people to marry, and the minister is– to the extent he’s conducting a civil marriage, he’s an instrument of the State. I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. Which means you — you would — you could — you could have ministers who — who conduct real marriages that — that are civilly enforceable at the National Cathedral, but not at St. Matthews downtown, because that minister refuses to marry two men, and therefore, cannot be given the State power to make a real State marriage. I don’t see any — any answer to that. I really don’t.

MS. BONAUTO: If one thing is firm, and I believe it is firm, that under the First Amendment, that a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.

JUSTICE SCALIA: He’s not being required to officiate. He’s just not given the State’s power, unless he agrees to use that power in — in accordance with the Constitution. I don’t — seems to me you have to — you have to make that exception. You can’t appoint people who will then go ahead and violate the Constitution.

MS. BONAUTO: I think if we’re talking about a government individual, a clerk, a judge, who’s empowered to authorize marriage, that is a different matter that they are going to have to follow through, unless, again, a State decides to make some exceptions. In Connecticut, after the court permitted marriage, it did actually pass a law to do deal with implementation issues, including these kinds of liberty issues.

JUSTICE SCALIA: Because it was a State law. That’s my whole my point. If it’s a State law, you can make those exceptions. But if it’s a constitutional requirement, I don’t see how you can. And every State allows ministers to marry people, and their marriages are effective under State law. That will not be the case if, indeed, we hold, as a constitutional matter, that the State must marry two men.

JUSTICE KAGAN: Ms. Bonauto, maybe I’m just not understanding Justice Scalia’s question, but for example, there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, most — many, many, many rabbis won’t do that.

JUSTICE BREYER: It’s called Congress shall make no law respecting the freedom of religion — 

JUSTICE SCALIA: — then? You agree that –that ministers will not have to conduct same-sex marriages?

MS. BONAUTO: If they do not want to, that is correct. I believe that is affirmed under the First Amendment.

Rounding out the few questions on the subject of religious liberty, Chief Justice Roberts later asked whether religious universities would be allowed to bar same-sex couples from married housing, and Justice Alito asked whether the government would be able to deny such a school its tax-exempt status if they did. Solicitor General Verrilli responded that issues like those would ultimately have to be addressed, but that the question before the court here is to determine what the 14th Amendment requires.

A ruling in the case is expected sometime before the end of June.