I had the privilege of being at the United States Supreme Court yesterday during the two-and-half hours of oral arguments on the Obergefell v. Hodges marriage case.
Yesterday I gave my “first impressions,” and today I want to share in more detail with you what I saw and heard during this historic day.
As you can imagine, the scene outside the Court was filled with energy and emotion, with lots of individuals representing both sides of the debate. It was loud and a bit chaotic. My heart went out to those who are confused about the meaning of marriage, and it reminded me again that there are many hurting people who need our love and compassion—and most of all the good news of Jesus Christ.
I was also encouraged to see many standing strong for God’s design for marriage, including many young people.
Once inside the courtroom, I sensed the same tension that I had seen outside. Both sides have strong emotions and opinions on this issue – and that’s one reason I hope and pray the Court allows the citizens who have voted for marriage to have their votes stand instead of imposing it via judicial decree.
As it relates to the hearing itself, the media is right to report that it seemed like the Supreme Court justices were deeply divided over the constitutionality of same-sex marriage. While we should be careful to not read too much into the questions, I was impressed by the depth of what the justices asked. There were tough and difficult questions from both points of view.
It was clear many of the justices were acutely aware that, “until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex,” as Justice Samuel Alito pointed out during questioning. In other words, we quite simply don’t know (from a social science perspective) how fundamentally changing the institution of marriage will impact our country, although the few legitimate scientific studies that do exist do not bode well for its effect on children.
And Chief Justice John Roberts was very clear on what legalizing same-sex marriage would do:
“You say ‘join in the institution.’ The argument on the other side is that they’re seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.”
Most eyes are on Justice Anthony M. Kennedy as the expected “tie-breaker” between the conservative and liberal wings of the Court. Justice Kennedy, who has led the Court in creating rights based on sexual attractions and behaviors appeared, at times, reluctant to sweep away thousands of years of marriage being defined exclusively as a union of one man and one woman. He said,
“The word that keeps coming back to me in this case is—is millennia, plus time… This definition [of traditional marriage] has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.”
Even justices from the liberal side of the spectrum raised questions about the wisdom of rushing to redefine marriage. For example, Justice Stephen Breyer asked,
“The opposite view has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change… what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?”
Justice Alito wanted to know where changing the definition of marriage would end.
“Suppose we rule in your favor in this case and then after that, [a group of four] two men and two women apply for a marriage license. Would there be any ground for denying them a license?”
Justice Antonin Scalia rightfully had concerns about what impact same-sex marriage would have on religious freedom. Specifically, he expressed doubt the religious liberties of ministers could be protected if same-sex marriage were a matter of “constitutional law”:
“The minister is to the extent he’s conducting a civil marriage, he’s an instrument of the States. I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men.
“If you let the States do it, you can make an exception. The State can say, yes, two men can marry, but ministers who do not believe in same-sex marriage will still be authorized to conduct marriages on behalf of the State. You can’t do that once it is a constitutional proscription.”
The oral hearings even made reference to the amicus briefs submitted by groups like Focus on the Family. When U.S. Solicitor General Donald Verrilli made the point there are “hundreds of thousands of children being raised in same-sex households” and “all of the evidence so far shows you that there isn’t a problem,” he was promptly stopped by Justice Scalia.
SCALIA: That that’s quite a statement. All of the evidence shows there is no problem.
GENERAL VERRILLI: Well, I –
JUSTICE SCALIA: All of the evidence shows there’s not a problem.
GENERAL VERRILLI: I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and – JUSTICE SCALIA: Well, I think some of the briefs contradicted that.
It was pretty surprising to see how quickly General Verrilli dismissed the vast amount of strong research and the briefs that showed children do best when raised by both a mother and a father… but perhaps it should not have been unexpected. After all, respected academics who have studied the topic – professionals like sociologist Mark Regnerus from the University of Texas at Austin – have been labeled “anti-gay” for daring to publish academics paper honestly reporting their findings. They’ve also been subjected to unfair ridicule and investigations for their work.
Earlier I mentioned Justice Kennedy, the presumed tie-breaker, seemed hesitant to do away with the millennia-old definition of marriage. But the justice has a reputation for critically questioning both sides. For example, Justice Kennedy seemed intent to equate same-sex marriage with “dignity.”
Two points on this:
First, it seems Justice Kennedy has a nouveau understanding of the word “dignity.” The short of it is this: whereas Christians and natural law theorists used the term to describe dignity as an inalienable value of humanity, Justice Kennedy seems to understand it as human autonomy and the right to define oneself. (If you want to explore this further, the aforementioned Dr. Mark Regnerus does a good job describing the shift in understanding.)
Secondly, by any definition, marriage has never been intended primarily as to be a dignity-affirming institution. It’s historically been the means that ties a man and woman together as husband and wife to be father and mother to any children their union produces.
I pray that Justice Kennedy appreciates the historical and anthropological significance and reason for marriage.
Regardless of how the Court rules, this debate isn’t going away. And we can rest in the knowledge that, ultimately, no court can change the truth that God’s definition for marriage has always been, and will always be, between a man and a woman.
So regardless of legal outcomes, here at Focus on the Family we will continue to address the importance of one-man, one-woman marriage to families, society and especially for children who have a right to both a mother and a father. And we’ll continue to advocate for the truth and beauty of God’s design as we extend grace and kindness to those who see things differently.
Please share your thoughts with me, won’t you? How are you seeing this issue? How about those of you with young adult children? Thank you for taking the time to weigh in.
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