WASHINGTON (Reuters) - If the U.S. Constitution covers a right to same-sex marriage, conservative Supreme Court justices asked on Tuesday, would clergy be exempted from performing such marriages or religious colleges spared from offering housing to gay couples?
Those questions during the court’s historic arguments on whether to legalize same-sex marriage nationwide underscored the ongoing clash between gay rights and religious liberties occurring in America.
They also elicited answers demonstrating the battle over the gay rights will rage on regardless of how the justices rule.
The Constitution’s First Amendment guarantee of freedom of religion protects the religious practices of clergy. Current debate is focused on businesses and other groups that assert religious-based objections to homosexuality.
The issue unfolded in Indiana when the state passed a “religious freedom” law but then was forced to revise it this month after widespread protests that the original measure could permit denial of services to gay people.
Such divisions were reflected, too, in some of the “friend of the court” filings in the case heard on Tuesday. The U.S. Conference of Catholic Bishops warned that recent disputes including those involving businesses refusing to serve gay couples “provide a glimpse of what would come on a far larger scale” if a gay-marriage right is declared.
The nine justices appeared closely divided during Tuesday’s arguments over a constitutional right to same-sex marriage, but Justice Anthony Kennedy, a key vote, suggested in his comments he might tip the balance in favor of legalizing it nationwide. That would be consistent with his series of gay rights opinions dating to 1996.
Questions over religious interests, voiced by three of the more conservative justices, began when Justice Antonin Scalia, opposing gay marriage, asked lawyer Mary Bonauto, challenging state laws against such unions, about religious exemptions.
“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?” Scalia asked.
No member of the clergy would be forced to perform such a ceremony, said Bonauto, citing First Amendment protections for religion. Justice Elena Kagan, who sounded supportive of gay marriage, interjected that many rabbis refuse to conduct marriages between Jews and non-Jews without violating any constitutional protections.
Justice Stephen Breyer followed up by paraphrasing the First Amendment: “It’s called Congress shall make no law respecting the freedom of religion.”
Chief Justice John Roberts, whose questions demonstrated his resistance to gay marriage, continued the religious-liberty thread when the Obama administration’s lawyer, U.S. Solicitor General Donald Verrilli, stepped to the lectern to argue against state bans.
“We have a concession from (Bonauto) that clergy will not be required to perform same-sex marriage,” Roberts said, “but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same- sex couples?”
Verrilli said the answer would depend on state laws against discrimination based on sexual orientation. He referred to a New Mexico case in which a photographer violated the state’s Human Rights Act by refusing to photograph a “commitment ceremony” for two gay men. Verrilli noted, however, that some states and the federal government currently have no such anti-discrimination laws covering sexual orientation.
Verrilli said religious tensions over gay rights have cropped up in states irrespective of their laws on same-sex marriage. He told the justices, “These issues are going to arise no matter which way you decide this case.”
Thirteen of the 50 U.S. states currently ban gay marriage.
Editing by Will Dunham
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