The big story today is not really the Supreme Court declaring that States can no longer prohibit same-sex marriages. Its previous opinion, striking down the Defense of Marriage Act, clearly foreshadowed the result announced today. The bigger story is whether this newly discovered right to same-sex marriage under the Fourteenth Amendment will trump another individual’s long-standing right under the First Amendment to exercise his or her religion freely. Specifically, will a religious minister be legally obligated to perform a same-sex marriage ceremony? The couple claims discrimination while the minister claims religious liberty, but only one claim can prevail.
Many media outlets are reporting that the opinion issued today does not require ministers to perform such a ceremony. I guess they are relying on the following language contained in the opinion:
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to ADVOCATE with utmost, sincere conviction (emphasis added) that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to TEACH the principles (emphasis added) that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
While that statement may seem to validate those media reports, there is obvious foreshadowing in those words, just as in the DOMA opinion, of where the Court is heading. As Chief Justice Roberts points out in his dissent:
“The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses … There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
Unfortunately for clergy members, these nine unelected people in black robes wield the sole power to decide this issue. In fact, they now set public policy on just about every social issue, in a dictatorial manner that is binding upon the other 320 million people in this country, including every elected official and governmental body. So when the case comes before them, and it will, I predict that they will put clergy members in the same boat as bakers, caterers, and photographers—a boat where religious beliefs cannot be used as a defense to a claim of discrimination.
I can just see it now, where a minister officiating at a same-sex marriage will ask the familiar question whether anyone in the crowd objects to the marriage. He will then raise his own hand, assuming he still has freedom of speech rights, but will then “hold his peace forever more” and proceed with the ceremony to avoid punishment. Only one side can win, and if nothing changes, it will not be people of faith.
Dave Beltrami is a lawyer and political analyst living in Atlanta, Georgia. He received his Juris Doctor and Master of Laws (Taxation) degrees from the Georgetown University Law Center in Washington, D.C.