At today’s oral arguments at the Supreme Court in the marriage cases, Justice Antonin Scalia raised the specter of clergy who oppose same-sex marriage being stripped of their ability to officiate marriages sanctioned by the state if the Court were to find a constitutional right to marriage. Unlike the more conventional objection from religious right activists–that clergy could be punished or jailed for refusing to officiate same-sex marriages–Scalia suggested such ministers could be barred from officiating any marriages at all, gay or straight.
Scalia rejected the argument initially made by the plaintiffs’ attorney, Mary Bonauto, that in states which passed marriage equality laws, an exemption for clergy was included in the law. Scalia objected that if the Court were to find a constitutional right to same-sex marriage, the Constitution would trump any state law granting an exemption.
Scalia even used a real Washington example, contrasting the National Cathedral, which performs same-sex marriages, and St. Matthews, a Catholic parish in Washington, which obviously does not. “You could have ministers who conduct real marriages 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,” he argued.
Justice Sonia Sotomayor jumped in, pointing out that in states that had anti-discrimination laws that protect the rights of citizens based on sexual orientation, and which legalized same-sex marriage, clergy have not been forced to perform same-sex marriages. But Scalia pressed his constitutional point, arguing that “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 Elena Kagan pointed out that “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.” True. And the state hasn’t taken away their authority to officiate civil marriages.
Justice Steven Breyer, then, came to the rescue citing the First Amendment. But he bungled it a bit. Or did he? Following up on Kagan’s remark, Breyer said, “It’s called Congress shall make no law respecting the freedom of religion,” at which point, at least according to the transcript, he was interrupted by others talking or trailed off.
What Breyer meant to say, of course, was that Congress shall not make any law prohibiting the free exercise of religion. But I wonder if it was a little Freudian slip when he said, “Congress shall make no law respecting…,” which of course are the words preceding “an establishment of religion.” Because if states were to decide which ministers could officiate civil marriages and which could not based on their religious beliefs, that would arguably infringe on their religious freedom, but could also constitute a state endorsement of a particular religious view. Which shows why conservatives should show more love for the Establishment Clause than they typically do.