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 talked about dignity.
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 licenses.
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.