Supreme Court Redefines Marriage

Supreme Court Chief Justice Roberts, a few weeks ago, noted that:

Marriage arose “to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.

For thousands of years societies have recognized, and had a vested interest in, traditional marriage (i.e. one man and one woman) largely for two reasons. First, every society needs babies if it is to perpetuate itself, and we generally get babies only from an intimate male-female relationship. (In the case of in vitro fertilization, we must still have the biological components that can be provided only by a male-female duo.) Second, society has a keen interest in endorsing / protecting whichever environment best provides for growth and maturation of babies into productive adults. Numerous studies conclude that children do best when raised by a united, permanent, mother-and-father team. One author sums all this quite succinctly:

"Sex makes babies. Society needs babies. Babies deserve mothers and fathers."[1]

The Supreme Court, in its deliberation on the Obergefell v. Hodges case (regarding same-sex marriage), specifically acknowledged the traditional definition and role of marriage, noting that traditional marriage “safeguards children and families,” “affords the permanency and stability important to children’s best interests,” and “is a keystone of the Nation’s social order.”

The Supreme Court Debate

Against this backdrop, the Supreme Court was asked to decide if Americans should toss aside our long-standing definition of marriage, and instead adopt a new definition that would accommodate same-sex couples. In the end, by a close 5-4 vote, the Justices decided that our country’s legal definition of marriage must include homosexuals.

The Majority Opinion

The majority position was that the 14th Amendment’s Due Process Clause (which says the government may not “deprive any person of life, liberty, or property, without due process of law”) extends to “certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs.” Further, the “right to personal choice regarding marriage is inherent in the concept of individual autonomy.”

The majority also argued that the 14th Amendment’s Equal Protection Clause (which says the government may not “deny to any person within its jurisdiction the equal protection of the laws”) applies here since current laws “burden the liberty of same-sex couples, and they abridge central precepts of equality.” The majority believes that current marriage laws are “in essence unequal” since “same-sex couples are denied benefits afforded opposite-sex couples.”

The 5-justice majority concluded that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses … couples of the same-sex may not be deprived of that right and that liberty. Same-sex couples may exercise the fundamental right to marry.”

The Dissenting Opinions

None of the dissenting justices argued that homosexuals should not be allowed to marry. In fact, the four dissenting judges seemed open to allowing same-sex couples to marry, if that is what voters decide. Justice Scalia said “it is not of special importance to me what the law" is regarding marriage; he noted that voters are free to pass laws that “recognize as marriage whatever sexual attachments and living arrangements” they wish.

The real question:  Who gets to decide?

The real question the justices debated, according to Chief Justice Roberts, was not can homosexuals marry, but who gets to decide what qualifies as marriage -- the voters or the Supreme Court? Scalia went on to say that it is of “overwhelming importance” to him who rules this country, i.e. who makes the decisions? Scalia was extremely upset that the Court took the decision about marriage away from the voters; he commented that “today’s decree says that … the Ruler of 320 million Americans … is a majority of nine lawyers on the Supreme Court.”

In brief, the dissenting justices objected so strongly to the majority's decision because it:

  1. Overruled voters on issues that the Constitution says individual States should decide via the democratic process, and
  2. Created a new right that the Constitution doesn’t mention, simply because it seemed to five justices like it was the right thing to do.

It is rare to see dissenting justices object more adamantly than was seen in this case. In an unusual move, Chief Justice Roberts read aloud his entire 29-page dissenting opinion to the Court. Their dissent concerned the inappropriateness of the process and logic the court used. They stated that the Court needs to restrain itself from creating / identifying rights not specifically mentioned in the Constitution. Here is a small sample of comments from the four dissenting justices:

  • “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
  • “Our constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.”
  • The Supreme Court has no business forcing any State to change its definition of marriage. Such a decision should “rest with the people acting through their elected representatives.”
  • “Five unaccountable and unelected judges … enacted their own vision of marriage.”
  • “Today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry.”  But their decision is not based on constitutional law.
  • “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

So, Now What?

The Supreme Court’s decision is monumental, on par with the 1973 Roe v. Wade decision that legalized abortion. So what happens now?

First, there is no doubt that we Americans will continue to debate whether the Court made the right decision, just as we still, over four decades later, discuss and debate whether abortion is moral. We should expect continuing debate as a normal part of our democratic process.

Second, Sean McDowell reminds us that as we debate, we should not be so narrow-minded and uncharitable as to think that everyone in favor of same-sex marriage hates morality or God, or that everyone who opposes same-sex marriage hates gays.[2] Let’s retain some civility and tolerance for others’ right to hold different beliefs.

Third, we may need to become more precise in our language. When we refer to marriage, we’ll have to be clear whether we mean the traditional view of marriage, or the new, broader view the Court endorsed, or something else altogether.

Fourth, it’s likely that society will come to recognize two different kinds of marriage. The government and citizens will recognize a ‘legal’ marriage; but churches and their members will also recognize a ‘religious’ marriage. C. S. Lewis pointed to this decades ago in a discussion about marriage and divorce, where he said:

There ought to be two distinct kinds of marriage: one governed by the State with rules enforced on all citizens, the other governed by the church with rules enforced by her on her own members. The distinction ought to be quite sharp, so that a man knows which couples are married in a Christian sense and which are not. [3]

Fifth, several analysts have observed that the logic used by the Supreme Court to declare same-sex marriage legal, could also be employed to require that polygamy be declared legal. So it's possible that in future court cases we will see further expansion of the government's definition of 'legal' marriage.

Conclusion

Whether we agree with the Supreme Court or not, same-sex marriage is now legal.

From the government’s perspective, marriage is no longer defined as a father-mother duo committed to producing and rearing children in a stable environment.

Instead, all 50 States are required to redefine marriage as simply the government's way of acknowledging feelings of love and affection between any two people.

 

Footnotes

[1] Maggie Gallagher, "(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman," University of St. Thomas Law Journal: Vol. 2: Iss. 1, Article 3. 2004. http://ir.stthomas.edu/ustlj/vol2/iss1/3

[2] Sean McDowell and John Stonestreet, Same-Sex Marriage (Grand Rapids: BakerBooks, 2014), 22.

[3] C. S. Lewis, Mere Christianity (New York: HarperOne, 2001), 122.