In a few days, the United States Supreme Court will issue its ruling in Obergefell v. Hodges and several related cases.[1] A majority of the Court’s members may find a right to same-sex marriage in the Fourteenth Amendment to United States Constitution. These cases come to the Court after over two decades of litigation in courts across the nation brought by the proponents of same-sex marriage and sexual-identity rights who hope that the recognition of this right will have far-reaching effects.

It is difficult to predict the full scope of downstream consequences of such a ruling, but the Court’s recognition of this new right would certainly have significant effects. Such a ruling would affect families and children, businesses and nonprofit organizations, and state and local governments throughout the country. Federal laws, state laws, and local ordinances would be changed to comply with the Court’s pronouncement. And, despite pooh-poohing by the advocates of same-sex marriage, such a ruling would also affect ministers and churches.

The downstream consequences and the likely effects upon clergy and religious organizations were among the topics discussed during oral argument on April 28, 2015. Justice Antonin Scalia was one of several members of the Court who inquired about possible consequences, and he expressed concern that such a ruling would lead to a requirement that clergy perform same-sex marriages. Here we will consider Justice Scalia’s concern. But before turning to his exchange with counsel, we will place this concern in context by considering some of the state laws governing marriage solemnization.

Marriage Solemnization Under State Law

Each state has its own laws regulating the solemnization of marriages by clergy and others, but state laws generally follow a similar pattern. The states regulate marriage by, among other things, controlling who can be married, restricting who can solemnize marriages, and imposing sanctions to enforce compliance. Because the Obergefell case arose out of Ohio, we will use Ohio’s marriage solemnization laws as an example.[2]

Controlling Who Can Marry. Under current Ohio law, a marriage may be entered into by only one man and one woman. To marry, each person must have reached a specified age (unless an exception for minors applies) and must not have a husband or a wife living. Additionally, no person may marry another person who is more closely related as kin than second cousin.[3] The parties to a marriage must apply for and obtain a marriage license from an appropriate court.[4]

Restricting Who Can Solemnize Marriages. Ordained or licensed ministers of religious societies or congregations in Ohio who are licensed to solemnize marriages and certain judges and public officials may join together as husband and wife persons who are not prohibited by law from being joined together in marriage.[5] To obtain a license to solemnize marriages, a minister must submit to the Ohio Secretary of State credentials showing that he is a regularly ordained or licensed minister of a religious society or congregation. This license authorizes the minister to solemnize marriages so long as he continues as a regular minister in that religious society or congregation. The Secretary of State must maintain records of the names of ministers who are licensed to solemnize marriages in Ohio.[6] Those who are authorized to solemnize marriages must transmit a certificate of every marriage they solemnize to the appropriate court.[7]

Imposing Sanctions to Mandate Compliance. Persons other than those legally authorized to solemnize marriage are prohibited from solemnizing marriages, and no marriage may be solemnized in Ohio without the issuance of a marriage license.[8] A person who solemnizes a marriage without proper authorization is subject to a fine and imprisonment.[9] Additionally, a person who knowingly makes false statements in a marriage license application is guilty of a minor misdemeanor offense.[10] Each marriage license issued must provide a prominent notice to the person solemnizing the marriage that a failure to return the certificate of the solemnized marriage to the issuing court within 30 days after performing the ceremony is a misdemeanor offense punishable by a fine.[11]

Justice Scalia’s Concern Regarding the Effect of the Court’s Decision on Clergy Solemnization

As noted above, during oral argument, in an exchange with Mary L. Bonauto, counsel for the petitioners, Justice Scalia expressed concern that the Court’s recognition of a constitutional right of same-sex couples to marry would require clergy to marry couples in violation of their religious beliefs.[12] The proponents of same-sex marriage, he observed, are seeking a Court-imposed rule based upon the Constitution, but he questioned the wisdom of such a constitutional requirement. In his view, the proponents could achieve the desired result under state law, which is preferable because the states can fashion their laws with appropriate exceptions.

Justice Scalia began by asking:

[O]nce 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?

Without referencing any specific constitutional provision or any judicial precedent, Ms. Bonauto responded that the Constitution would continue to apply and that no clergy “to this day” are “forced to marry any couple[s] that they don’t want to marry. We have those protections.”[13]
Justice Scalia followed up:

[B]ut 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. 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 refused 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.[14]

Justice Sotomayor then asked counsel whether ministers in any states that have anti-discrimination laws have been forced to perform gay marriages. Ms. Bonauto answered: “Of course not.”[15]

Justice Scalia persisted, emphasizing that those antidiscrimination laws “are laws,” “not constitutional requirements.”[16] He added that if the states make laws recognizing such marriages, they can make exceptions so that “two men can marry, but . . . ministers who do not believe in . . . same-sex marriage will still be authorized to conduct marriages on behalf of the State.”[17] But, if same-sex marriage were to come by way of a constitutional requirement imposed by the Court, Justice Scalia surmised, such flexibility and the ability to make exceptions would be lost. Again, without referencing any specific First Amendment standard or any judicial precedent, Ms. Bonauto responded that the First Amendment establishes that “a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.”[18]

Justice Scalia again redirected argument back to his concern. He stated that the clergyperson is “not being required to officiate. He’s just not given the State’s power, unless he agrees to use that power in . . . accordance with the Constitution. [It] seems to me you have to . . . make that exception. You can’t appoint people who will go ahead and violate the Constitution.” Ms. Bonauto acknowledged that the matter would be different with government officials who authorize marriages, “unless, again, a state decides to make some exceptions. In Connecticut, after the court permitted marriage, it did actually pass a law to deal with implementation issues, including these kinds of liberty issues.” Justice Scalia agreed, emphasizing that this was “[b]ecause it was a State law,” which permitted exceptions to be made.[19] He noted that, under state law, ministers are allowed to marry, and those marriages are effective under state law. But, he observed, if the Constitution requires that “the State must marry two men,” then such exceptions cannot be made.[20]

Justice Kagan then commented that some rabbis refuse to conduct marriages between Jews and non-Jews and that “those rabbis get the powers and privileges of the State.”[21] Justice Breyer interjected that “[i]t’s called Congress shall make no law respecting the freedom of religion . . . but . . . it leaves this question open.”[22] Justice Scalia then asked counsel whether she agreed that “ministers will not have to conduct same-sex marriages,” and she answered: “If they do not want to, that is correct. I believe that is affirmed under the First Amendment.”[23] Here again, Ms. Bonauto responded with only a general reference to the First Amendment—she did not reference any specific First Amendment test or any of the Court’s First Amendment jurisprudence.

Uncertainty Regarding Other Downstream Consequences for Religious Organizations

In addition to Justice Scalia’s concern about clergy being required to perform same-sex marriages, Chief Justice John G. Roberts, Jr. observed that there are some “harder questions,” such as whether “a religious school that has married housing [would] be required to afford such housing to same-sex couples.”[24] The Solicitor General of the United States, Donald B. Verrilli, Jr., responded that the Court’s ruling would address what the states must do (and not what religious schools must do) and that the states would then have to balance their civil rights laws and protections, decide how to enforce protections against discrimination, and determine what accommodations to allow. He also acknowledged that the states would strike different balances.

After Chief Justice Roberts noted that the federal government (like state and local governments) has enforcement power, General Verrilli conceded that “issues” would also “have to be worked out” in federal law, which does not currently ban discrimination based on sexual orientation.[25] General Verrilli recognized that questions of accommodation arise with commitment ceremonies because such ceremonies “are going to need florists and caterers.”[26]

Justice Samuel Anthony Alito, Jr. then directed discussion to Bob Jones University v. United States,[27] in which the Court had held that “a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating.” He asked General Verrilli whether “the same [would] apply to a university or a college if it opposed same-sex marriage.” The Solicitor General responded: “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. . . . I don’t deny that, Justice Alito. It is . . . going to be an issue.”[28]

Issues Underlying Justice Scalia’s Concern

These exchanges show that neither the Court nor the attorneys know with any degree of certainty the full range of downstream consequences that will flow from a decision recognizing a right to same-sex marriage. And, judging from the shift in how he articulated his concern during his exchange with counsel, it appears that Justice Scalia’s concern was not actually that clergy would be required to perform same-sex marriages. Rather, it was the following: in the face of a newly-created constitutional right, the states will be required to change their marriage and marriage solemnization laws to ensure that clergy are not cloaked with state authority and do not act as instruments of the states when they refuse to solemnize same-sex marriages and thereby discriminate against the parties to such marriages. However, his exchange with counsel includes a number of ambiguities and does not clearly reveal the full range of issues he had in mind or the full range of purposes behind his questions. Likewise, Ms. Bonauto left a number of questions unresolved because she spoke only in general terms about the First Amendment and constitutional protection for clergy.

Because of the uncertainty in predicting consequences, these ambiguities, and the lingering questions, we cannot reach definitive conclusions regarding all of what the Court’s ruling will require of the states or what the full range of effects will be for clergy and religious institutions. Nevertheless, Justice Scalia’s exchange with counsel focuses our attention on several underlying issues and the implications of such a ruling and helps us to sketch a plausible scenario regarding the likely impact of the ruling on clergy solemnization of marriages.

Federal, State, and Local Governments Will Be Required to Comply with and Enforce the Newly-Minted Federal Constitutional Right. If the Court finds a right to same-sex marriage in the Constitution, this right will be the “law of the land.” The legislative, executive, and judicial branches of the federal government (including administrative agencies) will be required to comply, and under the Supremacy Clause of Article VI of the Constitution, so will state and local governments.

A Newly-Minted Federal Constitutional Right Will Be Enforceable Against State Governments Under Federal Law. Should the Court create this constitutional right, the proponents of same-sex marriage and sexual-identity rights are sure to challenge under federal law any state laws governing marriage and marriage solemnization that they believe deprive persons of this right or the equal protection of the laws. The waves of litigation and the adverse rulings of judges sympathetic to the proponents’ agenda will keep the pressure on state government actors to accede to the proponents’ agenda.

A Newly-Minted Federal Constitutional Right Will Force Changes to State Licensing and Regulation of Marriage Solemnization. If the Court finds such a right in the Constitution, the states will be required to change their laws regulating marriage and marriage solemnization to comply with this new federal right. Because the states grant to particular individuals and offices (including clergy) authority to solemnize marriage on behalf of the state, the states may conclude that the Court’s ruling (depending how it is written and the scope of the right it creates) (1) does not permit them to maintain licensing and regulatory regimes that sanction (by authorizing or permitting) discrimination against those seeking to enjoy this right, and (2) requires them to enforce this new right by withholding civil authority to solemnize marriage from those clergy who refuse to marry same-sex couples and thereby engage in discrimination. Thus, a likely consequence of a ruling recognizing this new right will be that the states will refuse to recognize for civil-law purposes religious marriage ceremonies performed by clergy who refuse to perform same-sex marriages. In the end, marriage solemnization will likely become bifurcated so that civil authorities perform ceremonies for purposes of civil law and clergy perform ceremonies for religious purposes but with no civil-law effect.[29]

The First Amendment and the Federal Religious Freedom Restoration Act Will Afford Little or No Protection to Those Whose Religious Freedom Is Burdened by Government Action Enforcing This Newly-Minted Federal Constitutional Right. In Employment Division v. Smith, the Court determined that the First Amendment is not violated when a neutral and generally applicable law burdens a religious practice.[30] The Smith decision, which was announced in an opinion written by Justice Scalia, substantially reduced the protection of religious freedom afforded by the First Amendment. Congress responded by passing the Religious Freedom Restoration Act (RFRA) in 1993, which imposed the strict scrutiny standard when federal, state, or local government substantially burdens religious freedom.[31] In City of Boerne v. Flores, however, the Court restricted the application of the federal RFRA to the federal government.[32] Consequently, if the Court in Obergefell finds a right to same-sex marriage, it does not appear that either the First Amendment or RFRA would mandate that the states create any exceptions allowing clergy to solemnize traditional marriages on behalf of the states and with civil-law effect while refusing to solemnize same-sex marriages.

A Ruling Creating This New Federal Constitutional Right Will Bear All the Markings of the Court’s Most Controversial Twentieth-Century Constitutional Jurisprudence. If the Court finds this right in the Constitution, the Court will impose a federal standard on the entire country that narrows the discretion and the standard-setting function of the states in an area of law and policy that has traditionally been within the nearly exclusive domain of state law. Additionally, the federal standard would be set by unelected members of the federal judiciary rather than by the politically responsive, elected representatives of the people. Furthermore, such a right would not be found in any express term of the Constitution; rather, it would be inferred from other rights. In other words, this right would be another unenumerated right, and it would join the list of other questionable unenumerated rights recognized by the Court, including the right to privacy, the right to abortion, and the right to personal autonomy and dignity.

Some Clergy Would Refuse to Perform Same-Sex Marriages Based upon Their Religious Beliefs and Would Face the Loss of Civil Authority to Solemnize Marriages on Behalf of the State and Other Possible Sanctions. Because the states by law regulate marriage and marriage solemnization, grant and withhold authority to solemnize marriages, and impose criminal penalties on those who solemnize marriages without proper authority, those who refuse to perform same-sex marriages will face adverse legal consequences ranging from denial of authority to solemnize marriages on behalf of state government to other sanctions provided for in the law.

Conclusion

A slim majority of the Court’s members may be poised to recognize a new constitutional right to same-sex marriage, and should this be the Court’s decision, the traditional pronouncement of marriage—“by the authority vested in me by God and the state of [fill in the blank], I pronounce them to be husband and wife”—may be one of the casualties. It would become a casualty because the Court’s recognition of this right may not permit the states to grant civil authority to ministers to solemnize the marriages of heterosexual couples on behalf of the state without requiring them also to solemnize the marriages of same-sex couples. This was Justice Scalia’s concern.

Such a decision by the Court would also intensify our society’s bold experiment in redefining marriage. Our society has embarked on this experiment despite the shared wisdom of a wide and diverse set of societies and civilizations across millennia that have recognized marriage as the union of one man and one woman. Heaven alone knows what the full scope of the downstream consequences of this experiment will be. Justice Scalia attempted to explore some possible effects for clergy and churches, but counsel and some members of the Court were dismissive of his concern. Perhaps the intensely analytical process of writing the Court’s opinion will help members of the Court to consider with care the wide range of consequences that would result from such a decision.

It could be that Justice Scalia was being overly cautious in expressing his concern regarding the effect of a ruling recognizing a right to same-sex marriage on marriage solemnization, but it may be that he is prescient. He was, after all, prescient in 2003 in his dissenting opinion in Lawrence v. Texas.[33] The Lawrence Court struck down a state sodomy law making it a crime for two persons of the same sex to engage in certain intimate sexual conduct and recognized the right of homosexual persons to engage freely in private conduct in the exercise of their liberty and choose to “enter upon this relationship in the confines of their homes and their private lives and still retain their dignity as free persons.” Justice Scalia disagreed, observing that the Court had entered into a moral debate and taken sides in the culture wars. He wrote that the Court’s ruling called into question every state law “against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity [that] are . . . sustainable only in light of [the Court’s earlier] validation of laws based on moral choices.” He also wrote that the Court’s opinion in Lawrence “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

Thus, in 2003, Justice Scalia saw United States v. Windsor[34] and Obergefell coming. It may be that he sees what is coming next should the Court rule in favor of the claims pressed by the proponents of same-sex marriage and sexual-identity rights.

[1] The related cases are Bourke v. Beshear, DeBoer v. Snyder, and Tanco v. Haslam. (The author is not aware of any relationship between him and April DeBoer, who is a named party in one case.) In these cases, the Court is considering two questions: (1) whether the Fourteenth Amendment to the United States Constitution requires the states to license marriages between two people of the same sex, and (2) whether the same amendment requires the states to recognize marriages between two people of the same sex when their marriage was lawfully licensed and performed in another state.

[2] For a discussion of marriage laws in New York, see Mark McCall, A Legal Perspective on the Marriage Pledge, at <http://www.firstthings.com/web-exclusives/2014/11/a-legal-perspective-on-the-marriage-pledge>.

[3] Ohio Rev. Code § 3101.01(A).

[4] Id. § 3101.05(A).

[5] Id. § 3101.08.

[6] Id. § 3101.11.

[7] Id. §§ 3101.13 & 3101.99(C).

[8] Id. § 3101.09.

[9] Id. § 3101.99(B).

[10] Id. §§ 3101.05(B) & 3101.99(A).

[11] Id. § 3101.14.

[12] Because Justice Scalia’s articulation of his concern evolved during the course of the exchange, all of the salient portions of this exchange are reproduced here.

[13] Transcript at page 23. For the official transcript of oral argument, see http://www.supremecourt.gov/oral_arguments/argument_transcript.aspx. All of the citations herein reference pages of the Question 1 transcript.

[14] Id. at 23-24.

[15] Id. at 24.

[16] Id.

[17] Id. at 24-25.

[18] Id. at 25.

[19] Id.

[20] Id. at 26.

[21] Id.

[22] Id. at 26-27.

[23] Id. at 27.

[24] Id. at 36.

[25] Id. at 37.

[26] Id. at 37-38.

[27] 461 U.S. 574 (1983).

[28] Transcript at 38.

[29] Some Christian ministers have already pledged themselves to “disengag[e] civil and Christian marriage in the performance of [their] pastoral duties” based upon the redefinition of marriage that has already occurred in some states. See The Marriage Pledge, at <http://www.firstthings.com/marriage-pledge>.

[30] 494 U.S. 872 (1990).

[31] 42 U.S. Code § 2000bb et seq.

[32] 521 U.S. 507 (1997).

[33] 539 U.S. 558 (2003).

[34] 133 S.Ct. 2675 (2013). In Windsor, the Court held that Section 3 of the Defense of Marriage Act is unconstitutional in that it deprives persons of equal liberty protected by the Fifth Amendment.