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Religious liberty issues dog Supreme Court marriage hearing
Though not getting as much notice, questions of religious liberty if same-sex marriage becomes the law of the land were part of the Supreme Court discussion Tuesday. - photo by Mark A. Kellner
Questions of religious liberty occupied some of the discussion Tuesday as the Supreme Court of the United States heard oral arguments in several same-sex marriage cases. Justices and attorneys traded views on what a decision mandating marriage equality would mean for clerics and religiously affiliated institutions.

In one exchange, Justice Antonin G. Scalia asked attorney Mary L. Bonauto of the Gay & Lesbian Advocates & Defenders about possible outcomes of such a ruling.

"I'm concerned about the wisdom of this court imposing through the Constitution a requirement of action which is unpalatable to many of our citizens for religious reasons," Justice Scalia said, according to an official transcript. "But once it's made a matter of constitutional law 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?"

Bonauto replied, in part, "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."

Justice Scalia responded that such exceptions are often permitted under state laws, "(b)ut if it's a constitutional requirement," he said referring to marriage, "I don't see how you can."

In questioning U.S. Solicitor General Donald B. Verrilli Jr., Chief Justice John Roberts asked whether "a religious school that has married (student) housing (would) be required to (offer) such housing to same-sex couples?"

Verrilli demurred and said individual states would have to resolve that question since "there is no federal law now generally banning discrimination based on sexual orientation."

In turn, that drew a question from Justice Samuel Alito, about a 30-year-old decision against Bob Jones University, a nondenominational Protestant school that claimed a religious right to prohibit interracial relationships.

"In the Bob Jones case, the court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating," Alito said. "So would the same apply to a university or a college if it opposed same-sex marriage?"

Verrilli 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."

According to a Washington Post account of religious freedom questions at the hearing, "Justice Stephen Breyer asked whether purely religious reasons to oppose same-sex marriage were sufficient. John Bursch, who argued for state bans against same-sex marriage, replied that he is not arguing on the religious grounds."

Although it is unclear how or even if religious liberty considerations will play in the court's final ruling, one Canadian observer, writing before the oral arguments took place, warned that a marriage mandate might spell trouble for religious institutions.

"I want to warn America to expect severe erosion of First Amendment freedoms if the U.S. Supreme Court mandates same-sex marriage," Dawn Stefanowicz warned in an article at The Public Discourse. "The consequences have played out in Canada for 10 years now, and they are truly Orwellian in nature and scope."

Stefanowicz, who said she was the daughter of "a gay father who died of AIDS," wrote that she had filed a friend-of-the-court brief with the Supreme Court to argue against the redefinition of marriage. She wrote that because of provincial human rights panels that "police" speech, "Most faith communities have become 'politically correct' to avoid fines and loss of charitable status."
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