THE SAME-SEX MARRIAGE CASE

by Bob Wheeler

          Yesterday the U.S. Supreme Court handed down its long awaited decision on same-sex marriage. And, as expected, it legalized homosexual unions in all fifty states. Justice Anthony Kennedy wrote the opinion for the majority, with Chief Justice Roberts, and Justices Scalia, Thomas and Alito all writing dissenting opinions. Justice Kennedy, writing for the majority, relied heavily on the Due Process and Equal Protection clauses of the U.S. Constitution to make his case, while the dissenters complained bitterly of judicial overreach, and suggested that the matter should have been left to the political process to resolve.

The decision changes nothing, and it changes everything. It changes nothing in the sense that it basically ratifies the tremendous changes that have taken place in public morality over the past fifty years. The fact of the matter is that the only reason that same-sex marriage is even conceivable today is because we have largely reduced marriage to a legal technicality. If one does not need to be married in order to have sex, if marriage does not entail specific gender roles, and if one does not need to stay married if one does not wish to, then what is the point of marriage? The best answer that the Court could produce is that it provides certain government benefits, and in some vague way leads to happiness and fulfillment. Today we have accepted as normal single parent families and absentee fathers. Thus all that the Supreme Court is to encase the modern dysfunctional family model in cement and make it virtually impossible to return to the stable, two-parent family structure that we knew and expected in the ‘50’s and 60’s. What you see is what you get.

In another sense, though, the Supreme Court’s decision changes everything. It is a radical break with the past. We have now formally severed our connection with Judeo-Christian morality and 2,000 years of Western culture. Justice Kennedy, in his opinion for the majority, put it like this: “the right to personal choice regarding marriage is inherent in the concept of individual autonomy” (opinion, p. 12). What is implied here is a distinctly non-theistic worldview in which we exist as autonomous entities. We are not accountable to any supreme authority outside of ourselves. As a result we are free to choose our own identity. The nearest that Justice Kennedy comes to acknowledging any system of morality is when he says that there are “those who adhere to religious doctrines” who “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned” (opinion, p. 27). Thus morality is reduced to a matter of personal opinion and has no bearing on constitutional law. There are no absolute moral principles that are binding on all. It appears that we are now sailing through uncharted waters, and know not wither we go.

What are the consequences for society? It is impossible to know. As Justice Alito said, quoting his previous dissent in the DOMA case, “At present, no one – including social scientists, philosophers, and historians – can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be” (Alito, p. 6). But at least some of the Founding Fathers saw a connection between morality and public order. George Washington, in his Farewell Address, made the observation that, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” It is hard to see how democracy can survive if the public can never rise above narrow self-interest. When morality is gone, all that is left is the law of the jungle – might makes right.

But what does the Supreme Court decision mean for the religious community? Several of the dissenting Justices raised the specter of religious persecution. The problem is this: if you ask, what harm to gay couples suffer if they are denied marriage licenses, Justice Kennedy would reply that at least part of the answer is that it “demeans or stigmatizes” (opinion, p. 19), “. . . it would disparage their choices and diminish their personhood,” (ibid.), and it “serves to disrespect and subordinate them” (p. 22). But if that were the case, would not opposition to homosexuality in the religious community amount to the same thing?   Logically, wouldn’t the government have to stifle opposition to same-sex marriage in the churches? Justice Kennedy sought to reassure religious conservatives that they would be given “proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths” (opinion, p.27). But, as Justice Thomas pointed out in his dissent, “In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples” (Thomas, p. 15). And Chief Justice Roberts noted that, “Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage” (Roberts, p. 28). He went on to say, “There is little doubt that these and similar questions will soon be before the Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

During the next couple of years churches, denominations and religious institutions will have to decide how to respond to this ruling. There will inevitable come a parting of the ways between those who wish to be socially acceptable and those who wish to be biblically orthodox. We are bound to see a major realignment in the religious scene as people’s loyalties become clear.

In the meantime we will have to give up the fiction that America is somehow a “Christian nation.” It is a nation at war with God. And as we learned from our experience with Roe v. Wade, it is virtually impossible to reverse a Supreme Court. It took the Civil War to reverse the Dread Scott decision of 1857. America is beyond redemption at this point. It is no longer possible to sing patriotic hymns like “My country, ‘tis of thee” and “America the Beautiful.” We have just entered the New Age.

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