Fox News' Special Report cherry-picked Justice Antonin Scalia's religious freedom concerns from the Supreme Court's oral arguments on constitutional protections for same-sex marriage to question whether clergy may “be required to conduct same-sex marriages.” But this selective reporting ignores the fact that Scalia's line of questioning was immediately debunked by his fellow justices as well as the pro-marriage equality lawyer.
On April 28, the court heard landmark arguments in Obergefell v. Hodges, a case that will decide whether the U.S. Constitution forbids states from banning same-sex marriages, or at least requires them to recognize same-sex marriages performed in states where it's legal.
During the April 28 edition of Fox News' Special Report, anchor Bret Baier highlighted a dubious line of questioning between Scalia and Mary Bonauto, the lawyer representing the same-sex couples, that suggested a ruling in favor of same-sex marriage would require clergy with religious objections to perform those ceremonies. Baier reiterated Scalia's question to The Weekly Standard's Stephen Hayes, who agreed and argued that a ruling in favor of marriage equality would leave religious liberties vulnerable:
BAIER: There's one more thing. If states license ministers to conduct marriages, would those ministers -- if it is constitutional -- then be required to conduct same-sex marriages?
HAYES: Right, and then you go to the religious liberty argument. I mean, this is one area where I think conservatives are shifting their focus now, in a sense almost conceding that the gay marriage debate for all intents and purposes in the political realm is over, but can they sort of protect those religious liberties that, you know, certainly I would argue that the founders intended.
But Baier and Hayes ignored the explanations from Bonauto after Scalia floated this right-wing myth, as well as from Justices Elena Kagan and Stephen Breyer, who immediately pointed out that clergy are protected from "forced marriages" under the First Amendment of the constitution. In her response to Scalia's question of whether it was “conceivable” that a minister could continue to decline to perform same-sex marriages, Bonauto noted that “If one thing is firm, and I believe it is firm, that under the First Amendment, that a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.”
Breyer and Kagan also jumped in to clear up Scalia's hypothetical, which conflated civil marriages with religious ones:
JUSTICE KAGAN: Ms. Bonauto, maybe I'm just not understanding Justice Scalia's question, but for example, there are many rabbis that will not conduct marriages between Jews and non-Jews, notwithstanding that we have a constitutional prohibition against religious discrimination. And those rabbis get all the powers and privileges of the State, even if they have that rule, most -- many, many, many rabbis won't do that.
MS. BONAUTO: That's precisely --
JUSTICE BREYER: It's called Congress shall make no law respecting the freedom of religion[.]
JUSTICE SCALIA: You agree that -- that ministers will not have to conduct same-sex marriages?
MS. BONAUTO: If they do not want to, that is correct. I believe that is affirmed under the First Amendment.