Former Florida governor and likely GOP presidential candidate Jeb Bush seems confused about whether the First Amendment ensures clergy will never be forced to marry same-sex couples if they don't want to.
Speaking at a Washington, D.C. summit hosted by the National Review Institute on Thursday, Bush (incorrectly) recalled a moment from Tuesday's oral arguments in the marriage equality cases now before the Supreme Court.
If marriage equality becomes the law of the land, Bush hypothesized, ministers and other members of the clergy will be legally required to marry same-sex couples, reports the Washington Blade. He was repeating a claim advanced -- and subsequently shot down -- by stalwart conservative Justice Antonin Scalia.
"I read some of the transcript, and the solicitor general in defense of the government's position, when, I guess it was Scalia or someone asked about this question of 'Well, does that mean that the church or other religious institutions are discriminating if they don't want to participate?'" Bush said to National Review editor Rich Lowry. "And he said, 'That's not what's in front of you today.' Now maybe I'm misinterpreting that remark, but my interpretation of that was, 'Well, that might be in front of you tomorrow.' And that's where I think we need to focus."
Bush is indeed misinterpreting several pieces of "that remark." First off, the exchange he's referring to took place between Scalia and Mary Bonauto, the attorney representing the same-sex couples seeking marriage equality in their home states.
But more importantly, as Bonauto replied in the hearing, the fateful scenario Scalia proposed -- which Bush repeated -- has never happened, even with marriage equality already reaching 37 states and the District of Columbia.
"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," Bonauto told Scalia in court on Tuesday. In fact, just moments earlier, Justice Sonia Sotomayor had asked whether any state with pro-LGBT legislation had required ministers to officiate same-sex marriages.
"Of course not, your honor," was Bonauto's reply.
The exchange in court continued, with Scalia claiming that clergy members unwilling to serve all couples equally could see their power from the state divested. When the justice asked Bonauto, point-blank, if she agreed that "ministers will not have to conduct same-sex marriages," the attorney replied bluntly.
"If they do not want to, that is correct," said Bonauto. "I believe that is affirmed under the First Amendment."
The Washington Blade notes that later in the hearing, Chief Justice John Roberts did pose a similar question to U.S. Solicitor General Donald Verrilli, though that query was about whether religious schools that offer married employees housing would be required to offer equal accommodations to staffers in same-sex marriages.
Verrilli explained to the court that such a case would raise questions about nondiscrimination laws and how they apply to religious schools, rather than questions about the scope of marriage equality.
"These questions of accommodation are going to arise in situations in states where there is no same-sex marriage, where there are and, in fact, they have arisen many times," Verrilli told the court. "There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied [review] just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers."