Gay Marriage: What Will the Supreme Court Decide and How Can We Respond?1
(Eds. Note: Jake Phillips is a 3L law student at the University of Florida Levin School of Law, and will be graduating with a J.D. in May).
The Supreme Court announced they are hearing the final two questions in the gay marriage debate, with a ruling probably to come in June: are states required to issue marriage licenses to same-sex couples, and (mostly only if not) are they required to recognize same-sex marriages legally enacted in other states? Two years ago, in Windsor, the Court only answered the question whether the federal government could refuse to recognize a same-sex marriage legalized by a state, leaving the states to decide for themselves whether gay marriages would be recognized. With this case, necessitated by a split among federal circuit courts, the Supreme Court will be deciding once and (one would think) for all whether the states are allowed to decide individually whether to recognize same-sex marriage or whether the federal Constitution requires that they do so.
I want to address two separate issues. First, I want to explain, at a basic level, the possible outcomes of the case now presented to the Court. Second, I want to write about how we, as Christians, can respond to the eventual outcome.
WHAT IS GOING TO HAPPEN?
As I see it, there are three possible outcomes. I will address the two outcomes I think less likely, and then address my prediction for the case.
First, it is possible that the Court will issue a 5-4 decision, answering no to both questions. In other words, the Court will rule that states do not have to issue same-sex marriage licenses and do not have to recognize same-sex marriages valid in other states. Anyone who believes this is the likely outcome does so because while Justice Kennedy’s opinion in Windsor was characteristically ad hoc and poorly written, perhaps the central defining theme of his jurisprudential theory is respect for the sovereignty of the separate states. His opinion in Windsor was no different – a significant portion of his opinion found DOMA (which limited federal benefits to heterosexual marriages, regardless of the laws of individual states) violated the constitution specifically because it “reject[ed] the long-established precept that the incidents, benefits, and obligations of marriage…may vary, subject to constitutional guarantees, from one State to the next.” The issue of marriage has historically been the province of individual states, and “[c]onsistent with this allocation of authority, the Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.” It would be contradictory for Kennedy to issue a landmark opinion holding that the federal government must respect the rights of individual states to define marriage, and then two years later issue what would be a landmark opinion holding that the federal government could dictate to states the proper definition of marriage.
Second, it is possible that the Supreme Court will issue a split decision, answering no to the first question, and yes to the second. In other words, the Court will hold that states are not required to issue same-sex licenses, but they are required to recognize same-sex marriages legally enacted in other states. Since I addressed the “no” in the first option, and will address the “yes” in the third option, I will simply move on, but note that this possibility would be an absolute mess and might include nine separate opinions, and would be the bane of law students’ existence for years to come.
The third possibility is my prediction. It is possible that the court will issue a 5-4 decision answering yes to the first question and a 6-3 decision answering yes to the second, with Justice Roberts as the differing vote. The Court, in other words, would be ruling that states are required to issue same-sex licenses and thus, of course, must also recognize same-sex marriages validly enacted in other states. This is the most likely outcome, perhaps overwhelmingly so. Those who think this is the most likely outcome do so because it is somewhat absurd to think that Justice Kennedy, who issued landmark gay-rights opinions in Romer, Lawrence, and Windsor, would then restrict gay-rights in the last landmark case. And even his respect for the rights of individual states has limits. Just because the definition of marriage has historically been within the province of individual states does not mean that he would respect the right of a state to limit marriage to those between people of the same race. Furthermore, his opinion in Windsor also made it clear that he thought the only reason to bar same-sex couples from the federal benefits of a validly-recognized right was bare animus. It could be argued, of course, that there is a difference between arguing that same-sex couples should not be given federal benefits for valid marriages, and that states should be required to recognize gay marriage as valid. To argue the first requires bare animus (they just shouldn’t have nice things!) and the second does not (a constitutional argument).
Justice Scalia himself, though, articulated the problem with the argument, in his scathing dissent of the Windsor opinion. “In the majority’s telling, this story is black-and-white. Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle…Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better…that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the ‘personhood and dignity’ which state legislatures conferred upon them, will of a certitude be similarly appalled by the sate legislatures’ irrational and hateful failure to acknowledge that ‘personhood and dignity’ in the first place. As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe to drop.”
If my prediction comes to pass, Justice Roberts will dissent as to whether states are required to issue same-sex licenses, and concur as to whether states must recognize same-sex marriages valid in another state.
There’s also a small possibility that states could get out of the marriage business altogether; the Court could decide the issue on strictly Equal Protection grounds, such that what would be unconstitutional would be to draw distinctions between classes (heterosexual and homosexual) and then to discriminate between them when it comes to issuing marriage licenses. If you issue marriage licenses to straight couples, you must also do so to gay couples. But if a state does not issue marriage licenses to heterosexual couples, they would not be required to do so to homosexual couples. I offer no opinion as to what the make-up of the decision would be, but I’m quite certain that if this happens, Justice Roberts will be prominently involved.
THE REACTION OF THE CHURCH
Regardless of how the Court ultimately decides the issue, our reaction as a church (both individually and universally) will be important. I think we can generally respond in one of three ways.
Roe v. Wade Response
First, there is the Roe v. Wade response. After the Court legalized most abortions, the church responded by making abortion, and specifically overturning Roe v. Wade, a prominent goal both of the church and, more importantly, of the Republican party (to be clear, initially this was not the response – most of the church was generally favorable to the holding at first). In other words, they politicized the issue; being pro-life became part of the Republican platform. The success of the response is debatable; in recent years, we have seen a lot of gains in outlawing abortion at various levels and for various reasons. In that sense, it has been successful. The problem is that we do not know the counterfactuals; it seems possible (perhaps likely) that our gains in outlawing abortion have had more to do with scientific advancement than political ploys. And by aligning ourselves with a particular party platform, Christians have made sacrifices. We have probably been on the wrong end of the discussion about racial reconciliation and treatment of the poor, just to give two examples.
But even if the political response to abortion has been successful (and it very well may have been), I do not think the response to Roe v. Wade is a good template for the current situation regarding gay marriage. Abortion is horrible, and in our goal to stop as many abortions as possible, I think the negative side effects are more palatable. The same probably is not true when it comes to gay marriage. We are not, after all, talking about protecting babies; we are talking about protecting the way one government defines something God has already defined.
Second, there is “Rome is burning” response. This response would probably only happen assuming the most likely outcome occurs, and gay marriage is mandated in every state. The “Rome is burning” response would be much of church seeing this as an example of how our society is going to hell in a hand-basket, and that the decline of the U.S. is either occurring or imminent. We have already seen this response from some who think the values of traditional U.S. society are eroding.
The problem with this response is legion, but among them is the inherent theological confusion. The response probably stems from a wrong perspective on both the relationship between God and the U.S. and on the U.S.’s place in history. God has only had a specifically special love for one nation in history, and it was Israel. The U.S. is not the new Israel, and its rapid rise as a world power is more likely the result of an economy based on free labor and geographical advantages than on a special affection God placed on us. But even if it were true, the idea that it could be eroded by governmental recognition of gay marriage seems unlikely. It would require us to believe that while the government allowed people to be enslaved, beaten, humiliated and dehumanized based on the color of their skin, God had a special love for us. While the government found “manifest destiny” to be more important than the livelihoods or lives of Native Americans, God had a special love for us. While women were treated as second-class citizens and denied the right to vote, God had a special love for us. But when the government recognized the marriage of homosexuals, it was evidence that we had lost our way, the moral fabric of our country had been torn, and God no longer had a special love for us. Even if we believe God had a special love for the U.S. (and we probably should not), are we prepared to subscribe to a position that implicitly requires us to believe that God’s love for a nation is not determined by government-sanctioned slavery, or unjustified killing, or dehumanization of women and immigrants and African-Americans, or abortion, but is determined by government-sanctioned same-sex marriage?
(Eds note: for a fuller, not to mention better, discussion of this specific issue, see this post by the always excellent Derek Rishmawy.)
“Specific People” Response
The third response is the “Specific People” response. This response does not require that Christians forego their convictions about what God said marriage is, but it does call us to remember that we are talking about specific people. Those who will rejoice if recognition of gay marriage is mandated, or be devastated if it is not, are not some vague “other.” They are our co-workers; our family members; our neighbors; our friends. They have hopes, and dreams, and careers, and ambitions, and secrets, and skeletons, and positive characteristics, and fears, and bear the image of God. We can maintain our various perspectives about the wisdom and permissibility of recognizing gay marriage in a way that is compassionate and kind. In some ways, governmental recognition of same-sex marriage across-the-board might be a boon to Christians. We can engage in the type of discussion that Justice Scalia wanted, a discussion that remembers that our “opponents” are not monsters, but it can center on something that the Bible does talk about (homosexuality) rather than something it does not (whether governments have anything to say at all about the benefits it extends to those it considers married). Regardless of our theological positions, if the debate stops centering on rights and benefits and the legality of marriage, it can start centering on sin and redemption and hope. We can talk about homosexuality instead of legal definitions. We can talk about what the Bible says rather than what state constitutions say. We can talk about the Gospel rather than federal statutes. We can talk about the marriage feast of the Lamb rather than marriage licenses. We can talk about the Judge rather than the Justices.