There is debate among constitutional scholars about whether the First Amendment will continue to protect faith leaders from being forced to perform marriages against their religious beliefs.
Georgia House Speaker David Ralston, R-Blue Ridge, says June’s 5-4 Supreme Court ruling legalizing same-sex marriages is motivating him to pursue passage next year of a "pastor protection" bill. A working version of the bill reads: "No minister of the gospel or cleric or religious practitioner ordained or authorized to solemnize marriages according to the usages of the denomination, when acting in his or her official religious capacity, shall be required to solemnize any marriage in violation of his or her right to free exercise of religion." It was drawn up shortly after the U.S. Supreme Court ruled June 26 in Obergefell v. Hodges that the U.S. Constitution guarantees a right to same-sex marriage. The decision has been met with resistance in some states. "In Georgia, we're going to come down clearly on the side of the separation of church and state, and as long as you have constitutional scholars debating among themselves whether this is covered, then I think we need to remove all uncertainty and all doubt." Ralston said in an interview with The Atlanta Journal-Constitution on July 13, two days after he announced plans for his "pastor protection" bill. Ralston said his efforts are not connected to the "religious liberty" bills that have been at the center of some of the fiercest debates at the Capitol since 2014. Supporters see the "religious liberty" legislation as an extra layer of protection against government intrusion on religious beliefs, while critics say it would enable businesses to discriminate against gay customers. But what of the speaker’s claim of a debate among constitutional scholars? PolitiFact decided to dig deeper. First, a little background. Ralston was meeting with House Republicans on Jekyll Island in July when he first disclosed his plans to introduce a "pastor protection" bill in the 2016 General Assembly session. Several states have passed or are considering nearly identical bills, and two of these bills just became law in Texas and Oklahoma . Ralston says that in his House district in North Georgia, "there’s a lot of unease in the faith community over the reach and ramifications" of the Supreme Court’s decision. "What we are trying to do is dispel the unease, dispel the uncertainty and replace it with clarity," he told a radio reporter last month. What do scholars say? As soon as Ralston announced plans for the bill, some began to question: Was it necessary? Anthony Michael Kreis, a constitutional scholar at the University of Georgia, said nothing in the gay marriage ruling affects the religious freedom protections provided faith leaders under the First Amendment to the U.S. Constitution. They still have the right to refuse to perform any marriage ceremony, Kreis said. Based on Ralston’s statement, suggesting a debate among constitutional scholars, we went in search of other opinions. We contacted constitutional law scholars in Georgia and across the country, including George Washington University law professor Ira C. Lupu and Georgia State University constitutional law professor Eric J. Segall. All said the Free Exercise Clause of the First Amendment prevents any minister, priest, rabbi or any other cleric from having to perform any religious ceremony - wedding or otherwise - against his or her faith. "Many, for example, will not perform interfaith weddings," said Erwin Chemerinsky, a constitutional law expert and founding dean and distinguished professor of law at the University of California. The U.S. Supreme Court "has never said otherwise," Segall said. "And nothing in the same-sex marriage decision is to the contrary," he said. PolitiFact talked by telephone with Ralston, a lawyer by profession, and asked, "Do you believe they (faith leaders) are protected under the First Amendment?" "Arguably they are," the speaker said. He voiced concern that, with a U.S. Supreme Court that evolves, this could one day be an issue litigated in federal court. He also repeated his stance that, within the faith community, "there’s certainly uncertainty and unease." But, he acknowledged, "I don’t think it is the reality." He went to say: "We also have to deal with the perception." In a recent op-ed piece, Ralston wrote that "the Pastor's Protection Act will make absolutely clear our state government does not view clergy as state actors." Lupu, a nationally recognized scholar in constitutional law, said a civil marriage, based on its definition, "is not a matter that has historically been the domain of religious leaders -- certainly not the exclusive domain." "Think about divorce laws and how far they depart from Catholic or Orthodox Jewish teaching," he said. Lauren Sudeall Lucas, a constitutional law expert and Georgia State University law professor, said the high court in Obergefell v. Hodges was careful to emphasize that it is "the state" that cannot refuse to recognize same-sex marriages. Lupu said he knows of no constitutional scholar who believes that the state can dictate to a pastor regarding who qualifies for religious marriage. "So if Ralston says the Pastor Protection Act is legally necessary and adds something to the substance of the law, then he is speaking falsely," Lupu said. "If he says ‘I know it's not necessary, but it will provide reassurance to some,‘ that cannot be a falsehood, because it will indeed do that." Our ruling Georgia House Speaker David Ralston has announced he will propose a pastor protection bill, spelling out that faith leaders in the state have the right to refuse to perform any marriage ceremony that goes against their religious convictions. "In Georgia, we're going to come down clearly on the side of the separation of church and state, and as long as you have constitutional scholars debating among themselves whether this is covered, then I think we need to remove all uncertainty and all doubt," Ralston said in an interview two days after announcing plans for the bill. We don’t claim to have reached every constitutional scholar. But we could find no evidence that there are any constitutional scholars who believe the ruling diminishes the First Amendment protections of religious freedom or forces religious leaders to marry people against their personal religious beliefs. Ralston, himself, acknowledges that. But he says there’s unease in the community and a "perception" to contend with. That’s a different argument for the bill. We rate his statement Mostly False.
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