The staggering decisions of the U.S. Supreme Court on same-sex marriage will reverberate throughout our culture for decades to come. I have no doubt that this is only the first of more such decisions that will progressively lead us to a culture-wide legal acceptance of same-sex marriage. I have been saying as much for at least five years. The demographics of those who favor same-sex marriage clearly show that our democracy will very likely embrace this huge social change much sooner than later.
I have a number of responses to this change that I hope will shed light on the debate. I hope to offer a reasonable, just and missional way forward for Christians in an increasingly secular culture. Before I comment, however, please understand that I am primarily interested in “the church being the church” in all cultures and contexts. I am not deeply motivated by partisan political debate about this issue.
This statement of my approach to this highly contentious issue does not mean that I think that the church should cease to be public about Christian ethics and morality. It does mean that our agenda should never be to force the culture, even if we could, to adopt the beliefs of some (not all I remind us in this observation) Christians through partisan political wrangling. This kind of wrangling in public has already led an entire generation to believe that the church is made up of mean, angry and bigoted people who are determined to impose their religion on the general public and to reject them and their friends!
I also confess that I am not an expert on constitutional law. I did take a fantastic course on the subject in college, which was one of the hardest classes I ever had in my four-year undergraduate studies. This simple course of study does not make me an expert, just a thoughtful citizen who tries to understand the court and its decisions.
Supreme Court decisions are highly technical arguments. They are legal “opinions.” Having said this these opinions do matter quite profoundly, at least in some cases, and will have an impact on how the law is understood and applied in the years ahead. Justice Scalia struck this chord in his dissent regarding DOMA (Defense of Marriage Act) by writing that this majority decision was a set-up for more cases that would strike down all state laws defining marriage as only between a man and a woman. To me, as a lay reader, I think this almost surely will be the case. Many more cases are likely to arise in almost every state. I think the highest court will eventually rule on these matters at some point and then more decisions are likely to lead us to the place where marriage is embraced in a way that (legally) includes same-sex unions in every state. Millions of dollars will be spent, much of it by older conservative Christians, trying to stop this from happening but I feel fairly sure that this train left the station ten days ago and this money and effort will not be well spent.
I have studied these two particular cases in some detail. I believe that in both rulings the argument of the majority was very badly reasoned. Let me explain.
The Supreme Court ruled that Section 3 of DOMA cannot be used to allow the federal government to limit marital benefits only to opposite-sex couples. This was accomplished by the majority’s judgment that Section 3 was unconstitutional. Thus a legally married same-sex couple, legally married in a state that already accepts same-sex marriage, can now receive federal benefits such as the spousal benefits of Social Security and Medicaid. The Obama Administration has already ruled that married military personnel will get these benefits if they are legally married as same-sex couples.
In the second case, decided by another 5-4 decision, the parties that challenged an earlier court decision that ruled against Proposition 8 in California, a public referendum in which the citizens of the state voted by a 52% majority to define marriage to be between a man and a woman, was rejected. A lower court had ruled against Prop 8 and the Supreme Court (in effect) said the suit brought to them against this court’s ruling had no “legal” standing. This decision, at least I believe, is even more legally questionable than the one on DOMA. The California Supreme Court had already ruled that Prop 8 was legal, though suspect under the constitution of the state. A single federal judge in San Francisco has ruled against Prop 8 and this decision was appealed to the famous, or infamous, Ninth Circuit federal court, which upheld the decision of the single judge. The majority, led by the more “conservative” Chief Justice John Roberts said that the parties never had a legal standing to be before the Supreme Court, thus handing this matter back to the Ninth Circuit Court. The result is that same-sex marriage is again legal in California even though the people voted against it by a 52% majority.
Blogger Rob Schenck is correct when he says all of this means these cases were limited but the language Justice Kennedy “uses in his majority opinion is, at times, shocking.” Kennedy uses “accusatory and insulting language to impugn the motives of all supporters of DOMA.” The supporters of DOMA, in case you have forgotten the 1990s and how it was passed by Congress and signed by President Clinton. Adds Rob Schenck, “[According to the majority of the court] anyone who supports the idea that marriage should be limited to a man and a woman is motivated by spiteful and malevolent ill will and simply wishes to demean others.”
I have no doubt that many are guilty of “spiteful and malevolent ill will” about same-sex marriage but such action is within the range of legal protection and should not be treated as a matter of law in this instance. Demeaning anyone takes us into human psychology and the majority opinion suggests that the members of Congress, even President Clinton in the 1990s, acted with bad intentions!
The California decision is a bit of a cop-out but the DOMA decision is poorly argued and badly made. Why? It assumes too much about human practice and morality. The majority of human civilizations, and almost all monotheistic faith traditions, have argued that same-sex unions are contrary to natural law as well as divinely revealed moral teaching. Here is the question I would ask the justices: “Do we simply throw away millennia of brilliant philosophical, legal and moral teaching, teaching given by countless people and cultures (the overwhelming majority by a landslide) by saying the entire position was motivated by ‘improper animus’?”
Tomorrow I will suggest what believers in traditional marriage should do in the light of these terrible and poorly argued legal decisions. These decisions, as I have indicated, are likely (Justice Scalia argued this point) to open the door to many worse decisions that will alter marriage for generations to come. So then, what shall we do?