Supreme Court Justice raises religious liberty concerns during gay marriage arguments

WASHINGTON — During oral arguments before the U.S. Supreme Court Tuesday, Justice Antonin Scalia raised a concern shared by many Christians that establishing gay marriage as a constitutional right would require pastors to violate their deeply held beliefs and perform marriage ceremonies for same-sex couples.

“I’m concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons,” Scalia told Mary Bonauto, a lawyer arguing in favor of same-sex marriage. “They are not likely to change their view about what marriage consists of. And were the States to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth. But once it’s made a matter of constitutional law, those exceptions — for example, is 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?”

Bonauto responded that states that have allowed gay marriage have seen no cases where clergy was required to perform the marriages.

“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,” Scalia shot back. “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 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. I don’t see any answer to that. I really don’t.”

Justice Scalia’s concerns echo those of many conservatives across the nation who fear a ruling in favor of a defined constitutional right to marriage would supersede the religious freedoms guaranteed by the 1st Amendment.

One of Alabama Supreme Court Chief Justice Roy Moore’s most ardent points during the debates held over gay marriage in Alabama over the last few years has revolved around that very problem.

“When federal courts start changing our Constitution by defining words that are not even there, like marriage — they’re going to do the same thing with family in the future — when a word’s not in the Constitution, clearly the powers of the Supreme Court do not allow them to redefine words and seize power,” Moore said during a Fox News interview in February. “Powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people. This power over marriage, which came from God under our organic law, is not to be redefined by the United States Supreme Court or any federal court… They may do it, but they may do wrongfully, just like they did in Dred Scott and Plessy v. Ferguson in 1896 where they said separate but equal was the policy of the United States.”

“If a case comes before me and the Supreme Court has decided what marriage is… I would not be bound thereby,” Moore remarked. “I could recuse or dissent, as a justice from Delaware did in the Dred Scott case in 1857. They ruled black people were property. Should a court today obey such a ruling that is completely contradictory to the Constitution?”

Wednesday marked the second day of testimony on gay marriage at the U.S. Supreme Court, which is expected to make a ruling on the subject in June.