Sunday, May 10, 2015

Religious Liberty as 'Refuge' for Marriage Equality Foes

      Patriotism is the last refuge of a scoundrel, Samuel Johnson once wisely observed. Today, in like vein, religious liberty has become the last refuge of those who oppose marriage rights for gay and lesbian couples.
      The “scoundrels” on this issue include an array of public officials and opponents of same-sex marriage up to and including Supreme Court Justice Antonin Scalia. Scalia made the implausible suggestion in Supreme Court arguments in the same-sex marriage cases that clergy members might be forced to officiate at gay or lesbian weddings despite religious objections.
      “The minister, to the extent he’s conducting a civil marriage, is an instrument of the state,” Scalia remarked in a colloquy with the lawyer representing same-sex couples in the cases. “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.’”
      The government’s only solution, Scalia suggested, was to deny any objecting clergy the power to perform civil marriages at all. “I don’t see any answer to that,” Scalia concluded. “I really don’t.”
      Three of Scalia’s colleagues batted down the suggestion through their own colloquies with attorney Mary Bonauto. Justice Sonia Sotomayor noted that some states already have antidiscrimination laws protecting gays and lesbians. Have any ministers been forced to perform same-sex marriages in those states, she asked. “Of course not, Your Honor,” Bonauto replied.
      Scalia did not relent, insisting that a constitutional requirement would not allow exceptions permitted under a state law. After Bonauto replied on her own, Justice Elena Kagan joined the fray, suggesting disingenuously that “maybe” she was “just not understanding Justice Scalia’s question.”
      “There are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination,” Kagan observed. “And those rabbis get all the powers and privileges of the state even if they have that rule.”
      Justice Stephen G. Breyer briefly underscored Kagan’s point by quoting the First Amendment: “It’s called Congress shall make no law respecting the freedom of religion.” Still at it, Scalia asked Bonauto whether she agreed that ministers would not be forced to conduct same-sex marriages. “If they do not want to, that is correct,” Bonauto replied. “That is affirmed under the First Amendment.”
      Two weeks before that argument, my journalistic colleague Garrett Epps had published a column on that debunked the issue even more effectively. Epps said that his extensive research had turned up only one case in which a minister had been subject to legal action for refusing to marry a couple specifically, a Kansas pastor who refused to marry an interracial couple in the 1980s.
      The Rev. William Barclay, a Baptist minister in Wichita, was briefly jailed after a local prosecutor charged him with violating the state’s law against racial discrimination, according to Epps’ account [April 14]. But the Kansas Supreme Court ordered the case dismissed. “The parties have not cited, nor has our research revealed, a single case from any jurisdiction within the United States where criminal prosecution of a minister has been attempted under even remotely comparable circumstances,” the court stated.
      Back at the U.S. Supreme Court, Justice Samuel A. Alito Jr. raised the religious freedom issue in a slightly different context with Solicitor General Donald Verrilli. Alito noted that the court in 1982 had upheld the government’s decision to deny tax-exempt status to the religiously affiliated Bob Jones University because the school objected to interracial dating. Verrilli replied noncommittally, but acknowledged, “It’s going to be an issue.”
      That colloquy has now been bowdlerized in a report by Fox News correspondent Shannon Bream, who posted an article [May 6] suggesting that churches, not religious colleges, could lose tax-exempt status if they refused to marry same-sex couples. Debunking the piece, the Fox News monitoring group Media Matters quoted Caroline Mala Corbin, a professor at the University of Miami Law School, as calling the threat against churches “highly unlikely.”
      At ground level, opponents of marriage equality have been waving the religious freedom flag ever more vigorously as same-sex marriage rights have advanced. A photographer in New Mexico and a baker in Oregon are the poster children for the groups claiming a religious liberty right for commercial enterprises to refuse to provide services for same-sex weddings.
      State courts in New Mexico and the state civil rights agency in Oregon rejected those claimed religious exemptions from civil rights law, but the issue persists. And public officials in some red states are encouraging the notion that marriage clerks are free to refuse to sanction same-sex unions. A scattering of clerks have refused in several states; Utah enacted a law specifically allowing court clerks that option.
      The religious right has been laying the groundwork for this guerrilla campaign for a while. The issue is all the more important now that federal courts across the country have rejected the opponents’ other arguments for disapproving same-sex marriage. The religious accommodation bills in the news this spring have been deflected, but expect more such liberty-wrapped initiatives if the Supreme Court recognizes marriage rights for same-sex couples in June. But another old English aphorism is worth recalling: you can’t make a silk purse out of a sow’s ear.


  1. Great article. Interesting legal trivia about there being only one case in history in KS in '80 of the minister being charged with refusing to do an interracial marriage but the case was thrown out.

    Similarly... regarding the whole RFRA battle... I've been wondering if after Loving, an interracial couple ever sued a bakery, wedding photographer, caterer etc... for refusing to serve them? I know SCOTUS decided in Newman v Piggy Park that the owner could not refuse to serve black people. But specifically it would be interesting to know if there were any analogous cases regarding businesses in the marriage industry refusing to serve a couple for their interracial marriage?

  2. Addendum: the above should read "restaurant owner" regarding the Piggy Park case.

  3. A couple of problems with the logic utilized in this matter. First, no religious Official acts as "an instrument of the state" when officiating a wedding; the states of simply said, "We will recognize ceremonies performed by a religious Official as long as the Persons involved meet the following requirements ... and the ceremony is witnessed by ___ People." Additionally, laws banning discrimination based on consensual sexuality and/or romantic inclinations advance a compelling government interest (the full economic participation of the People) which can only be advanced by such categorical bans. In other words, equality Opponents are out of arguments and equality Advocates are worrying about non-existent issues, like the so-called "guerrilla campaign".

  4. When Breyer said "It’s called Congress shall make no law respecting the freedom of religion" I'm pretty sure he misspoke. In the transcript, he was cut off right after that line, so he probably butchered the quote by accident.

    It should have been "Congress shall make no law respecting an establishment of religion", so he got it exactly backward! I actually laughed when I read it!

    1. Perhaps you should also add the "free exercise" clause, as well - ", or prohibiting the free exercise thereof,"