During arguments over gay marriage on Tuesday morning, U.S. Supreme Court Justice Antonin Scalia made an astonishing assertion. If states are required to permit gay marriage, he argued, a minister of a faith that believes marriage is only between a man and a woman would nonetheless be forced against his will to also conduct marriages between two men or two women.
"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'," Scalia said. "... I don't see any answer to that. I really don't."
The answer, of course, is the First Amendment. Government can't force religious leaders to do anything that is contrary to their faith. And fortunately, Justice Elena Kagan was there to show her colleague the error in his logic.
"Maybe I'm just not understanding Justice Scalia's question," she interjected, "but for example, there are many rabbis that will not conduct marriages between Jews and nonJews, notwithstanding that we have a constitutional prohibition against religious discrimination."
"It's called 'Congress shall make no law respecting the freedom of religion ...'" added Justice Stephen Breyer.
Under the First Amendment, no one, with the possible exception of military chaplains**, can ever be required by government to conduct religious services that are contrary to their faith. That's just elementary, and while I'm no fan of Scalia, I'm still surprised to see him offering objections so ill-informed that they would be better suited to an email-chain than to Supreme Court debate.
In Scalia's defense, some of the other arguments raised against gay marriage were even worse. John Bursch, former solicitor general for the state of Michigan, had the onus of trying to argue that the mere existence of gay marriage somehow undermines heterosexual marriage, makes heterosexual marriages less likely to last "until death do us part," and makes it more likely for children to be born out of wedlock. And he was understandably vague about how all that might occur, although he was certain that children would be the victim.
"We're concerned about all the children, children of opposite-sex couples and children of same-sex couples," Bursch told the court. "There are 72 million children in this country. If this court ensconces in the Constitution a new definition of marriage and it reduces the rate that opposite-sex couples stay together, bound to their children, because of that different understanding, even a 1 percent change is many, many children."
Let me translate: Bursch was arguing that we are dealing with two conflicting concepts of marriage. Under one version, in his mind an exclusively heterosexual version, the institution of marriage exists mainly to keep two people bound to the children that they produce. The alternative concept, the version that allows same-sex marriage and thus ought to be avoided, is that marriage is a means of formalizing the spouses' emotional commitment to each other.
"If people think love is, or a marriage is, more about love and commitment than about staying bound to your child forever," then children and society as a whole will suffer irreparable harm, he argued.
These are not, or should not be, winning arguments, so it's telling that they were among the best arguments that opponents of gay marriage could muster. It's also telling that at least some of the conservative justices were so desperate for support that they were willing to grasp at them, slender and fragile as they might be, and pretend they were as sturdy as an oak tree.
The best argument that opponents could muster was that of process. Legalizing gay marriage was a decision that ought to be made not by the courts but by the people, Bursch and his colleagues argued, and in reading the transcripts (Part One and Part Two), you could tell that some of the justices found that approach compelling.
Of course, the same argument could have been and in fact was presented in defense of racial segregation back in the '50s and early '60s. If majorities in some states supported Jim Crow, the argument went, it ought to be left to voters and legislators to decide if they wanted to change the system.
Back then, justices rejected that argument on the grounds that civil liberties and equal treatment under the law are basic constitutional principles that are not subject to the whims of legislators or voters. And although observers in the courtroom Monday thought the Supreme Court's final gay-marriage decision may be closer than predicted, most still believe that the coming ruling will follow the logic of those earlier civil-rights cases.
And as a side note, Republicans ought to hope that those observers are right. The last thing they need is a decision by the court to punt, thus keeping this issue on the political front burner for another five, 10 or 15 years.
** Military chaplains have long been a special case. As government employees, they operate under a different set of rules than civilian religious leaders. Their job is to minister to soldiers of all faiths, regardless of whether they agree with that person's faith, and as a condition of service they agree not to use their position to proselytize to what amounts to a captive audience.
Jews who join the military, for example, shouldn't be counseled by chaplains to become Christians, nor should Protestants be pressured to convert to Catholicism. As the Army puts it, a chaplain must be "sensitive to religious pluralism and able to provide for the free exercise of religion by all military personnel, their family members and civilians who work for the Army."
If you can't abide by that job requirement, don't become a chaplain.