The former Florida governor made the remarks during a National Review Institute summit in D.C. in an exchange with National Review editor Rich Lowry. The moderator asked Bush if press reports were accurate he wanted a fix to the Indiana religious freedom law signed by Gov. Mike Pence seen to enable anti-LGBT discrimination.
“I didn’t say that,” Bush said. “I supported Pence. I think he needed to create clarity the law was not an attempt to discriminate against people, it was an effort to provide some space for people to act on their religious conscience.”
Bush called for finding a balance in law between that prohibits government discrimination against gay, lesbian and bisexual people, but enables individuals to act on their conscience.
“We need to get to a place where government’s not going to discriminate against people because of their sexual orientation, and at the same time, make sure that there is ample space for people not just to have a religious view, or just to be religious, but to actually act on their religious view,” Bush said. “Conscience is what we need to protect, and I fear that we’re not finding that balance right now.”
As an example of a potential lack of balance, Bush cited concerns expressed by U.S. Associate Justice Antonin Scalia during oral arguments before the Supreme Court on Tuesday that clergy would be forced to perform gay weddings if the court ruled for marriage equality. The response from U.S. Solicitor General Donald Verrilli to the concerns was inadequate, Bush said.
“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. “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’s account of the exchange is faulty. Scalia indeed expressed concerns during oral arguments that ministers may be forced to conduct same-sex weddings, but the attorney before the bench at the time was Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, who gave assurance no clergy would be forced to participate in a same-sex wedding.
“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 said at the time.
Also responding to Scalia’s concerns during the arguments was U.S. Associate Justice Elena Kagan, who said under current law many rabbis in the Jewish faith don’t marry Jews to non-Jews, but are still able to fulfill their constitutional requirements.
Later during the arguments, Chief Justice John Roberts asked a similar question to Verrilli on whether a religious school with married housing would be required to facilitate same-sex couples if the court ruled for marriage equality. Verrilli responded by saying the question before the court is what states must do under the 14th Amendment, not non-discrimination policies at religious schools.
“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 said. “There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and the and these, you know, commitment ceremonies are going to need florists and caterers.”
One LGBT advocate responded to Bush’s comments by saying the former governor is exactly right in saying he’s misinterpreting the exchange between Scalia and the solicitor general.
Evan Wolfson, president of the LGBT group Freedom to Marry, said the solicitor general, LGBT advocates, the Constitution and even several justices made clear ministers would be exempt from any ruling on marriage.
“It’s called the First Amendment,” Wolfson said. “Non-gay couples of all different religious views have been marrying for several centuries without it being a problem, as more recently have same-sex couples of all different religious views in 37 states. And our law already has a careful balance as to how entities such as businesses or colleges and so on operate. Our political leaders should look to ways to uphold the Constitution and bring the country together, not look for ways to divide us.”
Nonetheless, for Bush, finding “common ground” between opponents of same-sex marriage and gay and lesbian people seeking to marry is key.
“I think a country as open and big and tolerant and as this country ought to be able to find common ground on both of those fronts,” Bush said.