Are clergy required to perform interracial and/or same-sex marriages in the United States?

Question

In Loving v. Virginia, the United States Supreme Court invalidated laws against interracial marriages. This, along with laws around equal protection and non-discrimination made for a compelling argument that the right of marriage could not be denied on account of race. In 2009, a Louisiana Justice of the Peace who personally felt that interracial marriages were morally wrong was forced to resign because of his refusal to actually perform an interracial marriage. This, despite the fact that he was not prohibiting it - he just referred the ceremony to another JP who was willing to perform the ceremony.

What I am trying to ascertain is if pastors and other ordained clergy are subject to the same compulsory mandate - that as an officer of the state (which technically pastors are when performing cermeonies) churches and pastors are subject to public accomodation provisions that are used to stop discrimination.

More generally, of course, is the precedent that would be set if the Supreme Court finds a constitutional right for individuals of the same gender to marry. Would a pastor, who personally holds that same sex marital relations is a sin, be compelled to provide "equal access" to gay and straight couples alike?

What protections are afforded to religious personnel that would allow a pastor not to violate his or her conscience on the matter, but still be compliant with equal access provisions?

Answer 1

As stated by the US Supreme Court in MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL. (emphasis added):

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth.

Answer 2

No, a pastor in the US cannot be forced to perform interracial or same-sex weddings against his or her religious convictions.

We need to carefully distinguish between similar sounding scenarios, because different laws and principles apply:

1. A pastor exercising his freedom of religion in his own church walls or with his own congregation.

Freedom of Religion wins here.

This is a private religious ceremony and can be subject to any restrictions the pastor and the church want to put on it. There is no "public accommodation" in a church.

A church can require a couple be church members, or be baptized into the faith, or attend pre-marital counseling. The church can refuse to marry someone previously divorced, or a same-sex couple, or even an interracial couple.

They could certainly face social blowback for those decisions, but it's not against the law, and the government can't force them to perform a religious wedding for someone they don't approve.

This wouldn't apply to a government employee (a justice of the peace), see #3 below.

2. A company offering a service to the public.

This is a "public accommodation", so federal anti-discrimination laws win here.

If you offer your reception hall to the public to be rented out for events (wedding receptions, etc), Federal civil rights laws say that you can't discriminate against someone based on their race, religion, or gender.

This is the "wedding cake" scenario: a bakery that offers their services to the public can't refuse to make a wedding cake for a same-sex couple. (They can, interestingly, refuse to write something on the cake they object to, since that is overruled by 1st Amendment "freedom of speech" considerations.)

3. A government employee is asking for religious accommodation.

This is the Kim Davis scenario, and is a little more complicated.

So on one hand, the US Supreme Court found that the government itself cannot discriminate against same-sex marriage applicants, but at the same time, a government employee is within their rights to request a "religious accommodation" based on their sincere religious beliefs.

The key, though, is that the employer (the government in this case) only has to allow for "reasonable" accommodations of that employee's religious objections. (And yes, the definition of "reasonable" is the basis for many a lawsuit.)

Let's take a simpler example of a religious accommodation: a US Marine objects to working in the kitchen on days when pork is served, because of her faith. It is entirely reasonable to only assign her mess duty on other days, or to reassign her to other grunt duties.

Kim Davis, on the other hand, refused any offer of reasonable compromise. If she objected to personally issuing marriage certificates for same-sex couples, it would have been "reasonable" to simply allow someone else in her office to issue them instead. She refused this option. She was ordered to do so by the court, and jailed for contempt when she refused. She lost all appeals.

4. A private company employee asking for religious accommodation.

This is also potentially complicated, since the ideas of a "public accommodation" and an employee's religious freedom can come into conflict.

Take a pharmacy that sells Plan B ("morning after") pills. The store sells them and has no restrictions on who can buy them, but what happens if one particular pharmacist has a religious objection to selling them?

"Public accommodation" means that the store (as a whole) can't refuse to sell them, but a "reasonable accommodation" would be having someone else on duty handle the transaction. If there is no one else on duty, state laws differ: some states disallow religious objections in this case, other states handle it differently.

In Conclusion

It can be difficult at times to distinguish between these scenarios, and which principles might apply. But the pastor's freedom of religion definitely wins out in your original scenario, public accommodation isn't a factor for private religious organizations.

Answer 3

In "Capitalism and Freedom," Milton Friedman drew a distinction between "positive harm" and "negative harm." "Positive harm" consists of e.g. pushing someone into the river so s/he drowns. "Negative harm" would be passing by the river, seeing someone drowning and not offering to help. The first is illegal, the second is not.

The civil rights laws are written so that no one can actively or "positively" interfere with the e.g. interracial marriage. That might consist of the preacher standing outside the church and turning away guests so that the couple couldn't have a proper wedding ceremony.

But American law is not written to force people to "do the right thing" (that is, to prevent negative harm). A preacher doesn't have to perform a marriage ceremony for an interracial couple, as long as s/he doesn't block or INTERFERE with another preacher's doing so. The clergyman may even (verbally) "protest" the marriage.

Answer 4

The problem is that the term "marriage" has a couple of very different contexts, which also muddies the waters when people try to discuss things like government recognition of gay marriage.

Quite simply, the First Amendment holds sway in this case. The government may not pass any law regarding the establishment of a religion, or restricting a religion to practice its religion. So, forcing a religion to perform ceremonies that run contrary to their beliefs would absolutely violate this core principle. Now, where "beliefs" actually cause harm and violate the rights of others, the government can rule that religions can't do that, but that's not from the perspective of dictating religious beliefs as much as not allowing religion to claim beliefs to violate rights.

I can't, for instance, form my own church and religion and claim I can have multiple grade-school girls as my wives, or claim that my religion demands I go out and beat Hispanics. Well, I can claim that, but it affords me no legal protections for those actions.

I can, however, say that my religion does not recognize gay or interracial marriages as legitimate. While there is a right for people to worship as they please, that does not mean they can force a religion to change to suit their own preferences - they are free to find a religion that best suits them, and worship as they see fit.

Loving vs Virginia invalidated government laws restricting marriages. This is where the dual context comes into play. When government is, generally, talking about "marriage," they are talking about state-sanctioned and recognized civil unions. When a religion talks about marriage, they are talking about the religious sacrament of marriage as recognized by their religion. For example, the Catholic Church does not recognize divorces and subsequent marriages. Government does. That government recognition does not force the Catholic church in the US or other countries to change their stance, nor does the Catholic church's stance alter the status in the eyes of the government of even Catholics in regards to whether they can get divorced or re-married.

If I want to be "officially" married in the eyes of the government, I must get a marriage license, from the government, to be recognized and sanctioned by the government. People can be married in civil ceremonies without any religious context, and they are "officially" married. What the government does, to make it easier, is to also recognize marriage ceremonies performed by religions as government-recognized ceremonies, but a church wedding without also having an official non-secular government license is not "married" according to US law and government.

The Church of Me not performing a marriage ceremony does not prevent interracial couples or gay couples from getting an license and being officially recognized by the government as a married couple, so the government is not going to force any specific religion to perform ceremonies against their will.

That is why it was a big deal when individuals, in their capacity as government officials, tried to not issue the standard documents for marriage (Kim Davis, County Clerk in Rowan, KY, is the highest profile example).

NY Times: Clerk in Kentucky Chooses Jail Over Deal on Same-Sex Marriage

The government can force other government officials and bodies to follow the secular, civic laws, but that "marriage" is not the religious sacrament.

Answer 5

First sentence of the Bill of Rights reads

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

While this only restricts actions that Congress may take, the SCOTUS has long ruled that the 14th Amendment's Due Process clause forces the Bill of Rights to apply to the states as well.

So no state legislature can make any law "respecting an establishment of religion, or prohibiting the free exercise thereof."

Any government mandate requiring clergymen to perform any religious ceremony contrary to their expressed wishes (however arbitrary those wishes may be) would be a prohibition on free exercise of religion. It would force clergymen to make utterances which they would find contrary to their consciousness.

Since neither Congress nor any state legislature can pass a law with such a requirement, the clergy are not required to perform weddings which they do not find in keeping with their faith.