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Court readies for arguments over definition of marriage

[[email protected]@180=“The Constitution doesn’t mandate a 50-state redefinition of marriage to include same-sex couples.” –Ken Connelly] WASHINGTON (BP) — The U.S. Supreme Court will hear two and a half hours of arguments Tuesday (April 28) as the next step toward a long-awaited decision that will determine if marriage in all 50 states is expanded beyond the definition it has held since the beginning of time.

In oral arguments in the landmark case, the justices will ponder whether the U.S. Constitution requires a state to license or recognize a marriage between people of the same sex. In a ruling expected in late June or early July, the court could legalize same-sex marriage throughout the country, permit states to maintain their authority to define marriage as only a heterosexual union or require states to recognize gay marriages from other states without preventing them from licensing only male-female marriages.

The Supreme Court’s ruling “could potentially transform the cultural landscape of America,” Southern Baptists’ lead ethicist, Russell Moore, has said.

“The stakes are high,” Moore, president of the Ethics & Religious Liberty Commission (ERLC), has told Baptist Press in a written statement. “The price of getting marriage wrong is steep, and as in the rest of the Sexual Revolution, children will foot much of the bill. It matters tremendously to our nation and to future generations that we agree with God on this.

“We appeal to the Supreme Court to recognize and to stay within the limits of its authority.”

Many observers, however, expect the justices to rule in favor of same-sex marriage. The oral arguments may provide additional insight into the court’s ultimate action, but they are not always a good barometer of its decision-making.

The high court is considering two questions in the case: 1) Does the 14th Amendment to the U.S. Constitution require a state “to license a marriage between two people of the same sex?” and 2) Does the 14th Amendment require a state “to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

The justices will hear from private and government lawyers during the arguments, which will be 90 minutes longer than the normal one hour.

In the 90 minutes allotted to the first question, Mary Bonauto — longtime director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders — and U.S. Solicitor General Donald Verrilli will argue on behalf of same-sex couples challenging state laws limiting marriage to heterosexual couples. John Bursch, former solicitor general of Michigan, will represent the states with traditional marriage laws.

On the second question, the Supreme Court will hear from Douglas Hallward-Driemeier, a Washington lawyer who formerly served as an assistant to the U.S. solicitor general, in behalf of gay couples and Joseph Whalen, associate solicitor general of Tennessee, for the states.

The oral arguments will come in a case, Obergefell v. Hodges, from the Sixth Circuit Court of Appeals, the first federal appellate court to rule that states have the authority to define marriage as only between a man and a woman. Five other appeals courts have invalidated state laws that prohibited gay marriage.

The November opinion by the Sixth Circuit Court, based in Cincinnati, took place in challenges to laws in the states of Kentucky, Michigan, Ohio and Tennessee. Voters in those four states passed constitutional amendments between 2004 and 2006 that limited marriage to a man and a woman.

Courts have overwhelmingly issued opinions in favor of gay marriage since the Supreme Court struck down a section of the federal Defense of Marriage Act (DOMA) in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.

In its 2-1 opinion, the Sixth Circuit panel acknowledged the legalization of gay marriage appears inevitable. In spite of what seems inevitable, the majority said states are permitted by Supreme Court precedent to define marriage. It is better if state voters or legislatures instead of judges determine an issue that has traditionally been in their purview, the majority explained.

At the time, R. Albert Mohler Jr. — president of Southern Baptist Theological Seminary — described the Sixth Circuit opinion as “a triumph of constitutional argument and the defense of common sense. It is a masterpiece of logic and a compelling argument for the rule of law.”

The panel’s decision shows it believes “any straightforward reading of the Constitution in terms of its original meaning would allow the states to regulate marriage and to protect natural marriage as the central organizing principle of human society,” Mohler, a frequent cultural commentator, wrote in a blog post.

Ken Connelly, legal counsel of the Alliance Defending Freedom (ADF), said the Sixth Circuit opinion “gets it right on almost every issue.”

“Same-sex marriage is not a fundamental right, which is something that the other side likes to argue,” Connelly told Baptist Press in commenting on the Sixth Circuit’s reasoning. “It’s not deeply rooted in the history or tradition of the country. And frankly, the opposition is trying to shoehorn same-sex marriage into the fundamental right of marriage. But the fundamental right of marriage that the court has always understood the definition to be is the relation of husband and wife, man and woman.”

As the justices said in the 2013 decision invalidating part of DOMA, “states have the essential authority to define the marriage relation, and that’s essentially what the Sixth Circuit said,” Connelly told BP. “The Constitution doesn’t mandate a 50-state redefinition of marriage to include same-sex couples. States have the ability to retain the traditional definition of marriage just as they have defined it since the inception of the Republic.”

The case has produced 148 friend-of-the-court briefs at the Supreme Court level — 77 for the same-sex couples, 66 for the states and five for neither, according to the American Bar Association.

The ERLC’s Moore was involved in two of those briefs. He led the ERLC to endorse a brief with 18 other diverse religious organizations defending the biblical, traditional definition of marriage and contending that a ruling to mandate state recognition of gay marriage “would generate church-state conflicts that will imperil vital religious liberties.”

Moore signed on to a brief written by Robert George, professor of jurisprudence at Princeton University, and Sherif Girgis, a co-author with George of a book defending traditional marriage, “What Is Marriage?” The brief argues that states which have restricted marriage to a male and a female have not denied “the equal dignity of self-identified members of sexual minority groups” while protecting “a child’s entitlement to a mother and father.”

Southern Baptist leaders — including Mohler and Southeastern Baptist Theological Seminary President Daniel Akin — joined in a friend-of-the-court brief defending male-female marriage filed by the Liberty Institute.

In other friend-of-the-court briefs in support of state laws defending traditional marriage:

— Heather Barwick and Katy Faust filed one of at least three briefs from people reared in same-sex homes who expressed concern about the impact of same-sex marriage on children. “Government should institutionalize and promote only the family structure that ensures children’s rights and well-being are protected,” said Barwick and Faust, who both had lesbian parents.

— The International Conference of Evangelical Endorsers argued military chaplains will face an “irreconcilable tension” if same-sex marriage is required nationwide, saying, “Those who preach historic Christianity would then be arguing against a constitutional right and sowing dissension, despite the Constitution’s specific protections. This will, in effect, create a new military civic religion based on homosexual practices with a fabricated liberty interest yet with no history or roots in the concept of ordered liberty.”

— 57 members of Congress defended the principles of federalism and separation of powers provided in American government, urging the court “to avoid imposing a judicially mandated redefinition of marriage on the States.”

— The Marriage and Family Law Research Project at Brigham Young University and 54 international law experts rejected the assertion by gay marriage advocates of an “emerging global consensus,” pointing out that only 17 of the 193 members of the United Nations have adopted a form of same-sex marriage.

Among the friend-of-the-court briefs in support of same-sex marriage:

— The NAACP argued the Supreme Court’s 1967 decision that struck down bans on interracial marriage should help guide in this case, saying Loving v. Virginia “makes clear that state laws that exclude certain groups from marriage effectuate a caste system that is contrary to the principles of Equal Protection.”

— 211 members of Congress called for the high court to strike down laws barring same-sex marriage, saying, “They impose countless burdens and indignities on an identifiable and disfavored class — gay and lesbian couples and their children. And they serve no legitimate governmental objective.”

— Various religious organizations and nearly 2,000 members of the clergy contended invalidating state bans on gay marriage would be consistent with “equal protection and religious freedom.” They said, “All religions would remain free … to define religious marriage in any way they choose” and “religious institutions’ or individuals’ other constitutionally protected speech or activities” would not be hindered.

The expansion of same-sex marriage to nearly three-fourths of the states has resulted in a growing clash between the rights of gay couples and the religious freedom of individuals and organizations. Florists, bakers, photographers and other business owners who have conscientious objections to providing their services for same-sex ceremonies have been penalized or are facing penalties for their refusal.

The latest example of the threat to religious freedom came April 24 when an Oregon judge recommended a fine of $135,000 for former bakery owners Aaron and Melissa Klein for their refusal to bake a cake for a lesbian couple.

Same-sex marriage is now legal in 37 states, nearly tripling the 13 states where it was legal in mid-2013. It also is legal in the District of Columbia. Court rulings have produced legal gay marriage in more than two-thirds of those states.

The ERLC has called for Southern Baptists and other Christians to pray for the court during its oral arguments, which begin at 10 a.m. EDT.