Countdown to Equality

5 Reasons Antonin Scalia Is Obviously, Outrageously Wrong About Marriage & Ministers


Leading up to the historic Supreme Court ruling at the end of June, Queerty will publish a regular “Countdown to Equality” series of features,  from the farcical to the furious. This is the first in the series. Please submit your ideas to

Oh, Antonin, Honey. Are you okay? You seemed to have a kind of mental fit the other day during the marriage equality oral argument.

Maybe you were frazzled by the guy in the audience who stood up to shout that the court would burn in hell for allowing marriage equality. Oh, sure, you called it “refreshing,” whatever that means, but perhaps it distracted you from the proceedings.

How else to explain your bizarre tangent about how legalizing gay marriage would force ministers to participate in gay weddings against their will?

“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?” you asked.

Surely you know that there is zero chance of that actually happening, right? We assume that you do, but just in case you were genuinely confused yesterday, we’ve put together a few reasons why you can stop worrying so much about queers. Give it a once-over, and then try to get some rest. We’re worried about you.

1. There’s That Whole First Amendment Thing

You could not ask for a more perfectly tailor-made First Amendment case than a minister forced to officiate over a wedding that violates his or her religious beliefs. Yes, of course, there are laws that prohibit discrimination in government practices and in public accommodations (meaning, businesses that are open to the public). But there’s a super-high bar to requiring someone to violate their religious beliefs in any context, particularly in public. For example, faith healers who let their children die go to jail. But ministers are free to marry (or not marry) whoever they like. In fact, many religious official already turn down requests.

What Scalia’s probably noting here is the inherent weirdness in the blending of government and religion when it comes to solemnizing marriage. For no good reason other than tradition, faith leaders have unusual authority from the state when it comes to pronouncing people married. Scalia’s absolutely right that it is pretty weird or the state to make ministers semi-official representatives of government, with the authority to take care of forms and paperwork and legal status. Churches and states have always had an uneasy relationship, and marriage should probably be confined to one or the other, not both. But until that day comes, we’ll just have to maintain the uneasy compromise we currently enjoy

2. This is Different From the “Gay Cake” Controversies

Scalia seems to have been thinking about the recent controversies surrounding businesses that refuse to treat gay customers the same as straight customers. We’re all pretty sick of those stories by now: usually, what happens is a gay couple wants to pay for a service for their wedding, and a business owner thinks that their religion forbids them from helping gay people, and then someone sues and everyone gets upset.

At least, we think that’s what Scalia had in mind. It’s hard to say, because he so seldom makes any sense. They certainly have been in the news a lot lately, from cake-baking cases to the Indiana turn-away-the-gays law.

But this is different. Businesses that are open to the public have to follow a lot of laws that private religious officials don’t. Businesses — also known as public accommodations — can’t discriminate on the basis of things like race or gender, and in some places, sexual orientation and gender expression. If you’re conducting a religious ceremony, though, you’re not subject to those requirements. That means that a religious conservative could refuse to marry a same sex couple or even an opposite sex interracial couple. A MCC minister could refuse to marry a right-wing antigay opposite sex couple. You get the point. Those sorts of functions are not open to the public, at least not from a legal point of view; they’re private functions and they’d have to be doing something pretty freaking illegal before the government intervened and told them to stop.


3. This Simply Doesn’t Happen

Justice Kagan pointed out the obvious: nondiscrimination laws exist all across the country, and religious officials have never been compelled to obey them when conducting a wedding.

Many rabbis, for example, refuse to marry interfaith couples. That’s discrimination, but it’s perfectly legal since it’s happening within the context of a religious ceremony. And nobody is running to a lawyer’s office to sue their Rabbi for discrimination, in part because they know they’d be laughed out of court and in part because everyone agrees that even thought the bigoted view is ridiculous, you can’t ask ministers to go against their faith, absurd or not.

Of course, if a government official tried to do the same thing, we’d have quite a conflict on our hands. Imagine if a clerk said that they’d start offering different services to Jews versus Gentiles — there’d be an outcry. Well, that’s precisely what many towns and states are trying to codify with their odious “turn-away-the-gays” bills: they want to make it legal for government officials to discriminate like it’s legal for religious officials. But there’s no interest in pushing back the other way, in making religious officials perform more like neutral government officials.

Scalia did hint that maybe states would have to stop giving religious officials special powers to conduct weddings, if they’re not going to conduct them in accordance with the U.S. Constitution. To be honest, that sounds like a good idea to us; but given that religious people control virtually all aspects of government and culture, it’ll never ever happen.

 4. Why Would You Want an Anti-Gay Minister at Your Wedding?

Let’s just pause for a moment to consider the obvious: if a minister really doesn’t want to conduct a wedding, why would you insist on having him there in the first place? Can you imagine the passive-aggression of the minister in question? Loud sighs, not paying attention, bungling the ceremony. Ugh.

Look, we have to assume that the demand for abusive wedding officiants is relatively low. There are probably very few gay couples who are going to approach a priest and request a service in which they are berated, told they’ll burn in hell, and have scorn heaped upon them. Sure, Roman Catholic ceremonies are punishingly long, but they’re not brutal.

The gay couples who are getting married in religious ceremonies don’t belong to anti-gay churches. They belong to churches that affirm their relationships. And so when they go to their priest (or Rabbi, or cult leader, or whatever) they already know that they’re going to get someone who approves of what they’re up to. If they belong to a church that teaches that homosexuality is a sin, well, chances are pretty good that they don’t have any plans to marry in their immediate future.

5. Scalia Can’t Seriously Believe His Own Argument

Come on. Really, Scalia? Do you really believe that ministers will either be forced to marry LGBT couples, or have their right to officiate weddings revoked?

The premise is just ludicrous on its face, so we have to assume that he doesn’t actually believe what he’s saying. So why say it, then?

Our guess: it was meant as a dog-whistle to his friends, the homophobes. Scalia, as we know, pals around with gross anti-gay folks — you know, exactly the kind of people who would like to be able to continue scare-mongering around gays coming to destroy religion. By airing this stupid hypothetical during oral argument, he was feeding a talking point to his fans, tell them why they should be so scared of gay marriage. He might also have been giving us a little preview of the arguments he’ll use in what will hopefully be a dissent from the majority opinion. Even though he probably doesn’t really believe that religious officials will be required to violate their faith, simply saying it out loud gives political cover to people like Brian Brown who have built a career on making sure people are scared of gays.

Of course, those tricks won’t work for much longer. A majority of the country supports marriage equality at this point, and the numbers will only get better. We have marriage in most of the states. And in the near future, it’ll seem like no big deal, and everyone will wonder why it was ever a problem at all.

At that point, people will look back on Scalia’s rhetoric, shake their heads, and say, “thank God we don’t have that guy around anymore.”