Chief Justice John Roberts wondered aloud if the court could "force churches and religious leaders to preside over a homosexual wedding that, when taken as a whole, would offend their moral conscience." And Justice Antonin Scalia mused whether a constitutional right to marry meant a minister "can decline to marry two men." The answers -- as Justices Elena Kagan and Stephen Breyer quickly clarified -- are no and yes.
But in posing these scenarios during oral arguments, the two justices became the latest spokespeople for a hysterical trope, the specter of state-mandated marriage officiation. There is no reason to indulge this fallacy. Despite the alleged possibility of persecution -- in the form of compulsory sanctification of gay marriage -- nothing forces the nation's clergy to act against their faith. Indeed, alongside the legal rationales offered by Kagan and Breyer, the history of the military chaplaincy offers a clear and unambiguous precedent.
The military is a government institution that can compel clergy to conform to certain behavioral norms. Military chaplains, commissioned by the armed forces to serve personnel, cede some autonomy to the state. But the military has never required its chaplains to marry couples against their personal religious convictions.
Over and over again, anti-gay groups have trotted out clergy and chaplains as beleaguered minorities whose rights are being trampled. And over and over again, this line of reasoning intentionally misconstrues the relationship among religion, law and marriage.
Military chaplains are both clergy and military officers. They are ordained by specific faith traditions, endorsed by civilian religious groups, and commissioned by the military to serve all service members. This tripartite structure is intentional: It ensures that chaplains are well-versed in religious creed and ritual; it distances the military from concerns about establishing religion; and it guarantees that the military will meet the religious needs of its members.
Marriage has long been a duty delegated to chaplains. The historical experience is instructive because it underscores that chaplains have always retained religious autonomy in the realm of marriage.
During World War I, Chaplain Schools taught new chaplains how to drill, ride horses, pitch tents, administer first aid -- and marry soldiers. There, military clergy learned how to handle marriages outside of their faiths. A Protestant chaplain could not perform a marriage mass, but could civilly marry a Catholic soldier and his bride. A Catholic chaplain would not marry Protestants according to Catholic rites, but could sanction the marriage on behalf of the state.
In the eyes of the military, marriage can be religious or civil; chaplains can act as denominational clergy or county clerks. Even when acting as an agent of the state, the dictates of faith -- or even personal misgivings about any given match -- determine who chaplains marry. For the meaning of marriage -- which could be a covenant, sacrament, sealing or contract -- to name but a few ways different religions understand the marital bond -- is neither generic nor static.
During World War II, all movements of Judaism prohibited marriage between Jews and non-Jews. The Jewish Welfare Board, the civilian endorsing agency for Jewish chaplains, forbade Jewish chaplains -- who could civilly marry a non-Jewish couple -- from marrying a Jew and a non-Jew. No U.S. law or military policy restricted marriages between Jews and non-Jews (provided, of course, that both were white), but this did not mean that chaplains were required to solemnize those nuptials. Hence, even as states legalize gay marriage, chaplains will be under no obligation to conduct them.
Interracial marriages -- illegal in some states until 1967 -- posed a different set of challenges for chaplains. Within the United States, chaplains had to obey the state law governing the base on which they were posted. By the mid-twentieth century, state law varied so dramatically that the Army supplied chaplains with poster-sized charts of marriage requirements and laws by state -- ranging from syphilis tests to waiting periods to strictures around partnerships between men and women of different races.
Overseas, the situation was different. There white and black soldiers alike fell in love with Asian, European, and indigenous women. And (some) chaplains married them, according to their conscience -- and requisite permission of commanding officers.
When it comes to marriage, American military chaplains always work at the intersection of religious, military and state law. Gay marriage is no different: where legal, chaplains may, but are never required to, preside over gay weddings. Pretending that the military might coerce chaplains into performing gay marriage is more than disingenuous; it's false and manipulative. History shows these fears are ungrounded.
If a gay or lesbian soldier wants to marry in Iowa or New York or Washington, a chaplain has a choice: to officiate or to step aside. Just as a Catholic, Mormon or Southern Baptist chaplain could say no, so too could a UCC, Reform Jewish, or Episcopalian chaplain say yes. That is, chaplains from religious traditions that accept gay marriage may preside over them; chaplains from denominations that proscribe gay marriage will not be forced to celebrate them. But neither can the latter prevent their more liberal colleagues from doing so.
As the National Association of Evangelicals' Floyd Robertson stated in 1975:
Religious liberty is a two-way street. When I defend the right of our chaplains to be evangelical I must at the same time defend the right of those so disposed to be just as liberal as they choose to be.
Military chaplains and civilian clergy have long been free to follow their conscience when deciding whom to marry. Except, of course, when advocacy groups and their judicial and legislative allies try to strip clergy of their religious freedom. Under the guise of protecting some ministers, conservatives want to restrict the religious liberty of others by denying them the right to adhere to their faith in sanctifying and marrying gay Americans. The true assault on religious liberty comes not from gay marriage, but from those who want to circumscribe the right to bless same-sex marriage in accordance with their conscience and state law.