During last week’s oral argument in the same-sex marriage cases, Justice Antonin Scalia posed an arresting question for the plaintiffs’ lawyer, Mary Bonauto: If she wins a constitutional right to same-sex marriage for her clients, would that mean that clergy who will not officiate at same-sex wedding ceremonies would forfeit the power to officiate at opposite-sex wedding ceremonies?
Bonauto seemed understandably flustered because neither she nor any other advocate of marriage equality had ever implied or requested that clergy be obligated to perform same-sex ceremonies as a condition of performing opposite-sex ceremonies. Indeed, Professor Marci Hamilton referred to Justice Scalia’s question in her Verdict column last week as a “no-brainer.”
I agree with Professor Hamilton as a predictive matter. If the Court finds a constitutional right to same-sex marriage, clergy whose own religious doctrine forbids same-sex marriage undoubtedly will not be obligated to officiate at any marriage ceremonies for same-sex couples. But there remains the question why not? That question is not a no-brainer. Answering it satisfactorily may shed light on the broader issue of the sometimes-fraught relation between equality and religious liberty.
Justice Scalia’s Actual Question
Because of the fluidity of an oral argument, it is not always entirely clear what point a Justice or an advocate is making. However, reading the transcript carefully it becomes apparent that Justice Scalia’s point was hardly trivial.
Clergy who officiate at weddings perform a religious ceremony that also has civil significance, changing the legal status of the participants from single (or widowed or divorced) to married. But if clergy exercise government power in this way, they are bound by the Constitution. And so, Justice Scalia suggested, if there is a constitutional right to same-sex marriage, then any clergy who hold themselves out as willing to perform opposite-sex marriages would also have to perform same-sex marriages. Otherwise they would be acting unconstitutionally. Justice Scalia’s suggestion finds support in a memorandum by legal scholars criticizing proposals to provide public officials like county clerks and justices of the peace with statutory exemptions from the obligation to issue same-sex marriage licenses or to perform civil wedding ceremonies for same-sex couples.
Justice Scalia was not suggesting that any member of the clergy could be legally required to perform a same-sex wedding ceremony. Instead, he was saying that if the plaintiffs win, states could no longer deputize clergy who perform only opposite-sex marriages to perform civil as well as religious marriages.
Justice Kagan’s Potential Answer
Ms. Bonauto did not provide a good answer to Justice Scalia, but Justice Elena Kagan appeared to. She said that the Constitution already permits clergy who perform weddings to employ criteria that, in other circumstances, would be impermissible grounds for government decisions.
For example, Justice Kagan noted that many rabbis will not officiate at interfaith weddings, even though the government may not generally discriminate on the basis of religion. A law forbidding a Jew from marrying a Christian would obviously be unconstitutional but a rabbi who does not officiate at interfaith weddings does not thereby violate the Constitution, despite the fact that the state gives civil significance to the intrafaith wedding ceremonies that the same rabbi does perform.
Thus, Justice Kagan implied, the same would be true for same-sex marriages. Even if laws forbidding same-sex couples from marrying are unconstitutional, a minister who does not officiate at same-sex weddings does not thereby violate the Constitution, despite the fact that the state gives civil significance to the opposite-sex wedding ceremonies that the same minister does perform.
The Puzzle Deepens
Yet Justice Kagan’s analogy may be less persuasive than it at first appears. For one thing, religious discrimination by religious actors is categorically different from other kinds of discrimination. Part of the point of protecting religion is to protect communal practice, and that practice may be undermined if religious actors lack the power to set rules of admission and conduct for their members. For that reason, federal civil rights law permits religious institutions some latitude to discriminate in favor of co-religionists, but not to discriminate on the basis of other forbidden grounds, such as race and sex.
Although that is only a statutory rule, it is possible that the same basic insight that drove Congress to provide religious actors the latitude to discriminate with respect to religion explains the presumed constitutional result in the rabbi case. But if so, then a rabbi or minister who refused to officiate at interracial weddings or at same-sex weddings would lack a good defense because such a refusal is not based on the religion of the participants. And yet everyone seems to assume that he or she can refuse to officiate for all manner of religious reasons, even where those reasons reach beyond the faith of the couple.
Again, the question is what grounds that assumption. Indeed, even in Justice Kagan’s example, it is not immediately clear why the rabbi can be deputized to engage in religious discrimination that the state cannot itself directly undertake. At most, the comparison to civil rights law shows that no member of the clergy can be required to perform ceremonies that conflict with his or her religious duty. But again, no one is suggesting that clergy can be so required. The question is why the state can confer civil legal authority on a clergy member who will use it in a way that would violate the Constitution if the state acted directly.
Taken to its logical conclusion, Justice Scalia’s objection implies that if a couple want to have a religious wedding ceremony, that ceremony only marries them for religious purposes, at least where the presiding clergy member discriminates on grounds that would be forbidden to the state acting directly. Some other process—whether the filing of a marriage license application or a civil ceremony or both—would be necessary for the couple to be married in the eyes of the secular law.
A Free Exercise Exception?
In a different society, the foregoing logical conclusion would make a great deal of sense. Everyone seeking to marry would have a civil ceremony with legal consequences, and those who wished to have a religious ceremony as well would be free to do so. This approach has long been followed in France and with the rising popularity of civil unions (for opposite-sex as well as same-sex couples), it may be the wave of the future in much of the rest of Europe.
But despite our tradition of church-state separation, the United States seems unlikely to follow suit anytime soon. As a practical matter, we know that the Supreme Court is not about to say that states can no longer attribute legal significance to marriages performed by priests or ministers who only officiate at opposite-sex weddings, much less to marriages performed by rabbis (or ministers, priests, or imams) who only officiate at intrafaith weddings. Can these results be reconciled with existing constitutional doctrine?
One possible answer would be to say that the First Amendment’s Free Exercise Clause entitles clergy who perform wedding ceremonies to perform them only in accordance with their religious beliefs. Since the peyote case in 1990, the Supreme Court’s case law has rejected the notion that the First Amendment entitles religiously scrupled individuals to exceptions from a general legal obligation—like the assumed general legal obligation of those who exercise state power to recognize a constitutional right to same-sex marriage. However, notwithstanding that general approach, in the 2012 case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court unanimously recognized a constitutionally rooted “ministerial exception” from statutory anti-discrimination law entitling churches and similar institutions to select their own clergy on the ground that the Free Exercise Clause “protects a religious group’s right to shape its own faith and mission through its appointments.” By the same token, surely a religious group and its spokespersons can shape their own faith by deciding which marriages to bless. And although Hosanna-Tabor was a case of first impression in the Supreme Court, it built on a long tradition of granting religions institutional autonomy, especially with respect to clergy.
But even read broadly, the Hosanna-Tabor principle is not clearly implicated by the same-sex marriage case because, to repeat, no clergy would be required to officiate at same-sex marriages or forbidden from officiating at opposite-sex marriages. The issue is what legal significance the state attaches to religious ceremonies. The religious ceremonies themselves would undoubtedly be permitted to occur without interference from the state.
At most it might be said that if the state denies legal recognition to weddings performed by clergy who refuse to perform same-sex (or interfaith) ceremonies, the state in effect penalizes practitioners of the corresponding denominations. An opposite-sex couple wishing to be married in a faith that does not recognize same-sex marriage would need to have two ceremonies—one religious and one civic—whereas members of more egalitarian sects would only need to have the religious ceremony. But it is not obvious that this subtle pressure should be sufficient to trigger the Free Exercise Clause.
A more promising approach might be to deny the first premise of Justice Scalia’s puzzle. Perhaps when the government recognizes the validity of religious wedding ceremonies it should not be understood as deputizing the clergy who officiate at those ceremonies. Rather, the state recognizes wedding ceremonies regardless of whether a public official (like a judge or justice of the peace) officiates or a clergy member officiates, and if the latter, regardless of the tenets of the particular faith.
In this view, according state recognition to all manner of religious wedding ceremonies as well as to civil ceremonies is permissible in much the same way that government vouchers for private education are valid even if large numbers of parents use those vouchers to send their children to parochial schools—and even if the curricula at those parochial schools include messages that would violate the Establishment Clause if pronounced by the government itself. In doctrinal terms, state recognition of religious wedding ceremonies does not necessarily turn the presiding clergy into state actors.
That may be the best answer that can be given to Justice Scalia’s question, but it should be an uncomfortable answer for the sorts of constitutional liberals (like me) who favor a right to same-sex marriage. Liberals have long complained that the Supreme Court’s state action doctrine too narrowly conceives the scope of the Constitution’s commands. Dating back to the nineteenth century, the Court has tended to overlook the ways in which private discrimination reinforces public discrimination.
It is thus at least a bit ironic that in order to reassure the current Court’s conservatives that a constitutional right to same-sex marriage would not eliminate the ability of conservative clergy to perform state-sanctioned weddings, liberals might need to rely on the narrowness of the state action doctrine.
Of course, the irony cuts both ways, because, conversely, in asking his question, Justice Scalia was assuming a broad view of state action. Moreover, he almost certainly was not concerned with the answer to his question, as Justice Scalia is extremely unlikely to vote for a right to same-sex marriage in any event. But even if disingenuous, Justice Scalia’s question provides a useful window into the potential for conflict between marriage equality and religious liberty. Regardless of how the Supreme Court resolves the currently pending cases, that conflict will continue to arise for the foreseeable future.