Justice Antonin Scalia noted one area where this could happen during oral arguments in the marriage case called Obergefell v. Hodges. He pointed out that states give ministers the authority to conduct marriages. If the Supreme Court rules that same-sex marriage is a constitutional right, that won’t change the minds of religious leaders who believe the Biblical definition of marriage. If there is a constitutional right to same-sex marriage, the natural consequence will be to remove authority over performing marriage from ministers who disagree. Some states that permit same-sex marriage make exceptions for clergy, but Justice Scalia recognized that those exceptions will not hold up. As he said, “You can’t appoint people who will then go ahead and violate the Constitution.”
The lawyer arguing for same-sex marriage protested that religious liberty is safe, but it’s hard to take her at her word. There’s no reason why clergy would be off limits. In creating a new constitutional right, the Supreme Court would be erasing our oldest right, free speech in the First Amendment.
Listen to the radio commentary here: