3 Things We Learned from the
Supreme Court Yesterday
by Joseph Backholm
Yesterday, the Supreme Court heard oral arguments for two-and-a-half hours on two questions.
1. Is it constitutional for states to define marriage as a relationship between a man and a woman?
2. Is one state required to recognize legal marriages in another state?
While
it is impossible to know what is going on inside the head of each
justice, that won't stop observers from trying to figure it out.
Without trying to get too far inside anyone's head, here are a few
important things we learned from yesterday's arguments.
1. Justice Kennedy may be hesitant to tell all of human history they were wrong about marriage.
Justice
Anthony Kennedy is generally considered to be the swing vote in this
case. But his question early in the argument indicated that he may be
hesitant to throw out the definition of marriage that has been used at
all times and in all places.
"One
of the problems is when you think about these cases you think about
words or cases, and-and the word that keeps coming back to me in this
case is-is millennia, plus time. First of all, there has not been really
time, so the Respondents say, for the federal system to engage in this
debate...But still, 10 years is -- I don't even know how to count the
decimals when we talk about millennia. This definition has been with us
for millennia. And it-it's very difficult for the Court to say, oh,
well, we-we know better."
This
sounds like a very good argument to allow the question about the
definition of marriage to be decided by the people through the
legislative process rather than by these nine justices.
Chief
Justice Roberts got Mary L. Bonauto, lead attorney for the effort to
redefine marriage, to acknowledge that prior to 2001, no jurisdiction in
human history had ever defined marriage as a relationship between
people of the same gender. He questioned whether there weren't actually
rational reasons to define marriage in that way that had nothing to do
with homosexuality.
2. The Court is thinking about the impact on religious freedom as well.
Unlike
the political activists who insist that same-sex marriage has no impact
on religious freedom, the Supreme Court seems to be fully aware of the
conflict between religious freedom and the redefinition of marriage.
The
first exchange on the subject came when Justice Scalia asked Ms.
Bonauto if clergy would be required to perform same-sex marriages.
Bonauto insisted they would not, noting that Jewish Rabbi's are not
currently obligated to perform non-Jewish weddings.
The
second exchange came when Chief Justice Roberts asked the United States
Solicitor General, Donald Verrilli, about the impact on religious
schools.
"Would a religious school that has married housing be required to afford such housing to same-sex couples?"
Solicitor
General Verrilli did not say no. He just said that the issue would be
handled on a state-by-state basis and depend on whatever
"accommodations" the state was interested in giving to religious
schools.
Later,
Justice Samuel Alito asked Verrilli whether religious schools would
maintain tax-exempt status, noting that Bob Jones University lost their
tax-exempt status for refusing to allow interracial dating or marriage.
His response was telling:
"You
know, I-I don't think I can answer that question without knowing more
specifics, but it's certainly going to be an issue. I-I don't deny
that. I don't deny that, Justice Alito. It is-it is going to be an
issue."
Consider yourself warned.
3. Dignity is a major issue in this case
In their opening remarks, both Ms. Bonauto and Solicitor General Verrilli talk about dignity.
Their
primary argument seems to be that the current definition of marriage
violates the Equal Protection Clause of the Fourteen Amendment because it denies dignity to people in a same-sex relationship.
That
is how proponents of redefining marriage want to convince the justices
-- and the public -- to think about marriage. Don't think about future
generations, don't think about children, don't think about the
implications of the reality that we are a gendered species, just think
about what it does to someone when they feel "excluded."
Giving
proponents of real marriage reason to be concerned about the ultimate
outcome of this case, Justice Kennedy seemed to sympathize with the
dignity argument. Attorney John J. Bursch, arguing against the
redefinition of marriage, made the statement that the purpose of
marriage is not to infer dignity. But Kennedy responded with,
"Just
in - just in fairness to you, I don't understand this not dignity
bestowing. I thought that was the whole purpose of marriage. It bestows
dignity on both man and woman in a traditional marriage."
So what's going to happen?
Ultimately,
Justice Kennedy seems conflicted. He seems to recognize that there are
reason to preserve the current definition of marriage that have nothing
to do with prejudice toward gay people (a position I agree with) which
suggests he will preserve the right of people to define marriage for
themselves. At the same time, he seems to believe the purpose of
marriage is to infer dignity upon private citizens (a position I don't
share) which seems to suggest he would be willing to take the issue away
from the people and settle it as a constitutional matter.
It might also be true that none of these questions are the issues that will ultimately decide this case.
What is the impact of this decision?
If the Supreme Court finds that marriage is unconstitutional, every state will be required to issue same-sex marriage license.
If
the Supreme Court determines it is constitutional to define marriage
between a man and a woman, then the states would remain free to define
marriage for themselves.
The
Constitutional amendments in 26 states that have been overturned by the
courts would remain in effect. Only the 11 states that have redefined
marriage by popular vote or through the legislative process would have
same-sex marriage.
What can you do?
Pray for the court as they deliberate. Every day. The implications of this decision are tremendous, but,
"The king's heart is a stream of water in the hand of the Lord; He turns it wherever He wills." Prov. 21:1
You can listen to the entire, fascinating conversation, or read a transcript by clicking here.
Click here to read what was happening outside the Supreme Court while the arguments were being made.
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