A sweeping decision in the DOMA case

The Supreme Court just struck down section 3 of the Defense of Marriage Act, which defined marriage as the union of one man and one woman. In doing so, the court issued a sweeping judgment that in my view will lead to a constitutional right to gay marriage in very short order. One test case should do the trick.

Justice Kennedy wrote the majority opinion, and there are some elements in it that are chilling—as Justice Scalia makes clear in his scathing dissenting opinion. The Court’s majority holds in contempt anyone who defines marriage as the union of one man and one woman. Scalia writes:

The Court…accuses the Congress that enacted this law and the President who signed it of something much worse… The majority says that the supporters of this Act acted with malice—with the “purpose” … “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” … to “impose inequality,” … to “impose . . . a stigma,” … to deny people “equal dignity,”… to brand gay people as “unworthy,”… and to “humiliat[e]” their children, …

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that didno more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race. (p. 21 of Scalia’s dissent)

Rod Dreher’s characterization is on point:

Scalia has chillingly illuminated the future for marriage traditionalists: the only reason to oppose same-sex marriage is hate. In constitutional law, there is no rational basis for supporting traditional marriage. Henceforth, the Court has declared open season on religious and social conservatives and their institutions. Given the majority’s holding that hatred is the only plausible explanation for denying same-sex marriage, I see no reason why the Supreme Court will not declare same-sex marriage a constitutional right.

And the logic of the Court’s language here ought to put fear into the hearts of anyone who does not share the belief that homosexuality is morally neutral, or morally good. The Supreme Court says we are haters, full stop. You know the liberal mind: thoughtcrime cannot be allowed to exist. How can the federal government maintain a tax exemption for churches that hew to the Biblical teaching on homosexuality, given that the Supreme Court now has put opposition to homosexuality in the same category as racism? We live in interesting times.

I will have more to say on this as the day wears on, but the Court’s decision on DOMA is a watershed on the order of Roe v. Wade. It will have religious liberty implications that I’m guessing most folks have not even begun to ponder.

43 Responses to A sweeping decision in the DOMA case

  1. buddyglass June 26, 2013 at 1:08 pm #

    A truly sweeping judgment would have for the court to recognize a constitutional right for same-sex couples to marry. It didn’t. Instead it took a federalist position and decided it’s up to states to decide who can marry.

    • Denny Burk June 26, 2013 at 1:14 pm #

      No, this ruling does not establish a right to gay marriage, nor am I claiming that it does. I am saying that it provides the constitutional basis for that right. All we need now is one test case, and gay marriage will be the law of the land.

      • Chris Ryan June 26, 2013 at 6:55 pm #

        Ruth Bader Ginsburg has often said that Roe v. Wade was decided too fast & that the right to abortion would have been much stronger had the Court delayed its ruling until more states liberalized their abortion laws.

        So, I think both she & Kennedy think that by slow walking the right of gays to marry that they will achieve a more durable ruling. You may be right that its one test case away, but I’d guess that SCOTUS will try to defer that right for at least 3-5 yrs based on her comments.

        Right now the support for gay marriage goes up by ~3% per year & it now has majority support nationwide. Over at the 538 Blog stats guru Nate Silver projects that states as conservative as Nebraska & N. Dakota will support gay marriage by 2016. So my guess is we have a couple of years before its law, but fer sure the writing’s on the wall.

  2. Daryl Little June 26, 2013 at 1:18 pm #

    Thankful that I am Canadian today.

    We are a more liberal country to be sure, but there is a significant difference between Canada and the US that, while generally not a good thing, works to our advantage here.

    Canadians are a generally apathetic people (with the exceptions of hockey and disasters that affect our own). So while we’ve had more liberal/anti-Christian laws on the books for much longer than you, they are not enforced without complaint, and being apathetic, real complaints are rare.
    America, being a much more action-oriented country, will not let this ruling sit unused for very long. This sounds like a case to arrest faithful pastors on contempt charges (at a minimum) in the near future.

    The times, they are a-changing to be sure…

  3. Ken Temple June 26, 2013 at 1:55 pm #

    The end of civilization as we know it continues.
    The Wrath of God is being poured out by giving people over to their selfish desires. (Romans 1:18-32)

    • Tom Parker June 26, 2013 at 1:59 pm #

      Ken:

      Are you really saying the world came to an end today?

      • Ken Temple June 26, 2013 at 2:04 pm #

        the words “civilization” and “world” have different meanings. and notice I wrote, “continues” which means it is a slow process and started a while back.

        • Tom Parker June 26, 2013 at 2:15 pm #

          Ken:

          Maybe you are not panicking, but the panic that will ensue from this ruling–should that be the Christian response?

          • Ken Temple June 26, 2013 at 4:32 pm #

            Not a panic; but I heard a very interesting take on this on the radio from Michael Medved (A Jewish conservative radio talk show host – not a Christian) – he pointed out that the people’s reaction and mobilization for pro-life was sparked by the wrong-headed Supreme Court decision of Roe vs. Wade of 1973; and that this could result in the same kind of response of getting the real facts and truth out for people, and that will turn people’s opinions back to true marriage and family. ( 1 man with 1 woman) We can hope and pray for this, just as more and more people realize abortion is murder and wrong; more and more people are going to realize that there really is no such thing as “same sex marriage” and that it actually harms children in the long run.

        • Lauren Bertrand June 26, 2013 at 2:36 pm #

          Such hyperbole from the ideological right bears eerie echoes to the teeth-gnashing we saw from the ideological left during the Bush administration. Back then I lived in a much more liberal part of the country than I do now, and my colleagues were convinced after Bush was re-elected in ’04 that America as we knew it was coming to an end as a civilized country. Of course, the cultural barometer was such back then that people who disagreed with the solid right stance of Evangelicals (who we all know were pivotal in elevating Bush Jr to power both times) were labeled as “traitors” or “anti-American” much the same way conservative Christians are labeled today as “bigots”.

          Really it comes down to no more than two fiercely divided camps who cannot discern anything in shades of moderation, duking it out in the same jurisdiction. It’ll be fun to see what the hot-button issue is during President X’s 2016-2020 term.

  4. Greg Alford June 26, 2013 at 2:01 pm #

    Professing themselves wise, they became fools…

  5. Stan McCullars June 26, 2013 at 2:03 pm #

    This is right up there with no fault divorce and abortion. God’s judgment against America continues.

  6. Ian Shaw June 26, 2013 at 2:10 pm #

    Sigh,

    While it is not my hearts desire to have my children face the same battles I do, I’m afraid their experiences being Christians in the United States will be considerably different from mine and more similar to those in the rest of the world for the better part of the past 200+ years. Did I honestly think they’d uphold DOMA, no. Will this ruling be another catalyst in how being a Christ follower in this country will be shortly, yes. People will be forced to make very difficult decisions based on their faith. Much like the rest of the world, where there has not been the same amount of religious “freedom” as we have had since the country’s inception, the religious will find themselves apart from civil society. To quote a great man of God I was fortunate enough to have as a pastor for many year’s, homosexual marriage is not a “hill worth dying on-(his phrase)” for me. Did we know this day would come, yes. It’s not a be-all end-all issue for me, because I can see the foundation of religious freedom crumbling. The guy who checks bridges hasn’t been out to this one in a while and it’s a few heavy trucks away from giving way. Scalia’s and Dreher’s points are spot on. Any disagreement with this decision will and always be viewed as hate. As Christians, we must prove them wrong. I love all people, regardless. That being said, the message hasn’t changed and won’t change.

    • Chris Ryan June 26, 2013 at 7:48 pm #

      Unfortunately reasonable & well meaning Christians get out shouted by the loons over at Westboro Baptist & clowns like Rush Limbaugh.

      More often than not, people see the truth of your witness & do not get offended. True life example. I had a girlfriend once & we were visiting Disneyland with her 5yo son. After seeing two lesbians kissing she walked up to them and said, “Excuse me, I have my son with me, would you mind terribly not doing that in front of him?” The women stopped immediately.

      Its like our mothers taught us, “Its not what you say, its how you say it.” So, Christians need not worry; in Christ we can do all things.

  7. Brett Cody June 26, 2013 at 2:24 pm #

    Well, for those who visit this blog and have defended the sinful fiction of homosexual “marriage” I suppose you will enjoy seeing Christian pastors going to prison for preaching the truth. Enjoy it while it lasts.

    • Lauren Bertrand June 26, 2013 at 2:38 pm #

      Brett, as far as I know, Westboro Baptist has never gone to prison, and they’re certainly more extreme than most. Maybe the other Evangelicals can understand how WBC has been able to successfully maneuver amidst First Amendment rights while infuriating both conservatives and liberals. They might be a bunch of kooks, but they clearly aren’t dumb.

      • Brett Cody June 26, 2013 at 2:47 pm #

        Lauren,
        I think we both agree that Westboro Baptist Church leadership and members have a larger percentage of folks who need to carefully consider the foolishness of their demonstrations, but let’s not pretend that religious persecution is not inevitable in this country.

      • Chris Ryan June 26, 2013 at 7:02 pm #

        Lauren–Never gone to prison? Not only that but their activities have been sanctioned by SCOTUS. You’re so spot on. If the extremists like the WBC and militants like the KKK can mouth off, Christian pastors will face no, nada, zilch restrictions on their sermons.

    • Hannah Lewis June 26, 2013 at 4:29 pm #

      Oh don’t be so dramatic. There are Christians who still denounce interracial marriage and they don’t get hauled away to prison. Look at Bob Jones Univ. Look at Westboro. If our right to free speech and freedom of religion falls that far, we have far more serious problems than some Christian pastors going to prison.
      Although based on the martyrdom complex I see in some Christians, I think some *want* it to happen despite their protestations.

      • Akash Charles June 26, 2013 at 11:08 pm #

        hey it happened in sweden , it can happen here it is not dramatic!!- unless you think it is okay to jail pastors who follow the bible

        • Lauren Bertrand June 27, 2013 at 6:38 pm #

          Sweden ain’t the US. Not even Minnesota is really that much like Sweden. After all, Sweden wouldn’t have a Michele Bachmann–and she’s under no threat of arrest.

  8. Ian Shaw June 26, 2013 at 2:28 pm #

    *Will this ruling be another catalyst in how being a Christ follower in this country will be changed drastically, yes.*

    Apologizes for the typo

  9. Ian shaw June 26, 2013 at 2:45 pm #

    I fear that my children’s experiences being Christian in this country will be far different from my own.

    WBC gets away with what they do because they are uber-extreme in their views. IMHO, I would not say they are Christ followers as they never share Christ with anyone. That’ll be a sad day if evangelicals take a page out of WBC’s book to avoid persecution. I think eventually evangelicals would rather welcome the persecution than avoid it.

  10. Johnny Mason June 26, 2013 at 3:10 pm #

    The revealing part of Scalia’s dissent was that the SC has been turned into another partisan apparatus and does not strive to be above the political discourse of the day. I tend to believe this has been the case for a while, but this ruling made it very clear, since it was not based on jurisprudence but on demonizing the opposition (i.e. The only way you could be against gay marriage is out of hate or animosity).

    So the court is no longer an impartial referee (which may have been the truth for quite some time), but an active participant in the cultural and political battles of the day.

    I dont think this same Court would legalize SSM given what they wrote in this case and the Prop 8 case, however once one of the 5 conservative justices is replaced by a liberal then all bets are off.

  11. Andrew Orlovsky June 26, 2013 at 3:42 pm #

    The grass withers, the flower fades, but the word of our Lord endures forever.

  12. James Bradshaw June 26, 2013 at 4:59 pm #

    Brett writes: “Well, for those who visit this blog and have defended the sinful fiction of homosexual “marriage” I suppose you will enjoy seeing Christian pastors going to prison for preaching the truth. ”

    No. In fact, I have repeatedly voiced my support for religious freedom and freedom of speech. I have even written on occasions in support of people I don’t agree with, and I will continue to do so. Today’s Supreme Court decision hasn’t changed that.

    That being said, given the fact that religious fundamentalists have demonized us on television and in print, have slandered us from their pulpits and have fought us having even the ability to retain our jobs and homes, I’m not sure what the proper deserved response should be. Were we to simply treat them as they’ve treated us, the outcry of “Persecution!” would be deafening.

    However, many of us are still willing to work for compromise and that your freedoms are retained in every way. Quit being a drama queen for once and realize that most of us just want our own opportunity for happiness as we envision it, just as you do, and most of us are not out looking for conflict for its own sake.

    • Chris Ryan June 26, 2013 at 7:58 pm #

      James, I’m sorry that you’ve been demonized, slandered, and discriminated against. There’s no excuse for any of that; its plain wrong. And, frankly, its unChristian.

      As a Christian who supports the right of gays to marry but still views homosexuality as a sin, I’m hopeful that gays and Christians can find common ground. People should not face hatred, discrimination, or vilification b/cs of who they love.

    • Akash Charles June 26, 2013 at 11:14 pm #

      “all want our own versions of happiness”?!!! I hope laws are not based on that, cause I know that I would not like a rapists version of happiness to be legal

      hmm you think people who dislike christian beliefs are not looking for conflict??- that is exactly how the devil works he hates christian ideas- so stop calling this guy a drama queen especially when pastors in the western world have been arrested for this matter

      • Chris Ryan June 26, 2013 at 11:40 pm #

        For what its worth, Akash, it’ll never happen here. Lots of things happen in the Western World that never happen here. Hitler massacred millions of people. I feel confident that that’ll never happen here. France banned the burqa. I fee pretty confident that that’ll never happen here. Switzerland banned minarets on Islamic mosques. I feel pretty confident that that’ll never happen here. Those countries have a sharply limited freedom of religion and of speech. We have abt the most powerful & broad 1st Amendment in the world. Even Britain doesn’t have a 1st Amendment.

        So what happens in other countries simply isn’t relevant to what happens here. You have nothing to fear.

        • Akash Charles June 27, 2013 at 3:37 am #

          Fear?!! I do not fear generally and historically persecution of christian’s is a good thing for Christianity in the long term and is a reminder that God is in control.

          hey for every single thing you said there are like 100’s of things that have happened in the states.

          sharply limited freedom of speech?? please give me examples of this in those countries, just because their laws guarantee freedom of speech with different wording to yours etc does not mean they do not have it

          also the states does not give individuals the right to sell goods to whoever they want to ( and rightly so for historical reasons but the states has moved on from those days)

          also just curious why does the states supposedly claim to be the “leader of the free world” when they condone leaders of other nations who silence women and Christians and any other minority with murder etc?

          and there are enough cases in the states where frankly what is defined as “okay to say” changes -largely depending on the media’s opinion

          if the first amendment was so powerful why does the States behave in a manner that contrasts it- there was time when it was powerful but today it is not

          I ain’t saying one has to be perfect but the fact is anything can happen , even a Hitler

          • Akash Charles June 27, 2013 at 3:39 am #

            here is another reason it can happen here, supporters of abortion and various feminists hold Swedish law as the pinnacle of feminism

            • Chris Ryan June 27, 2013 at 2:55 pm #

              Feminists do really like Sweden, Akash. You’re certainly right abt that.

              • Akash Charles June 27, 2013 at 5:41 pm #

                exactly and feminists pretty much control our government

                • Tom Parker June 27, 2013 at 10:41 pm #

                  Hardly!!

  13. Tim Elliott June 27, 2013 at 2:20 pm #

    James, James, James,
    If the battle lines were drawn, your “support” for religious liberty would be nil and you know it. You worship the god of homosexuality. There’s no room in your heart for the true God. It is impossible for you to defend anyone else’s religious liberty when doing so would stand in the way of sacrificing to your idol.

    • James Bradshaw June 27, 2013 at 10:30 pm #

      Tim writes: “If the battle lines were drawn, your “support” for religious liberty would be nil and you know it … There’s no room in your heart for the true God. ”

      You’ve never met me. Do you have ESP? Do you run a psychic hotline? I have made my support for freedom of speech clear on every blog I’ve contributed to and every opportunity I’ve had. You have no idea who I am or how I live my life.

      Now, if your “religious liberty” entails seeking my death or imprisonment, or if it means you want to have the “right” to fire me from the job I’ve had for over a decade for no other reason than you hate “queers”, then yeah … you’re going to get a fight. I’ll treat you with the consideration and respect you give me.

      Sound reasonable?

    • Lauren Bertrand June 28, 2013 at 7:01 pm #

      Tim Elliott– Lots of stone casting for just four sentences. Don’t see a lot of room for God in your heart either. Do you really expect to be winning souls to Christ by saying something like this?

    • Chris Ryan June 28, 2013 at 9:32 pm #

      “If the battle lines were drawn, your “support” for religious liberty would be nil and you know it…It is impossible for you to defend anyone else’s religious liberty when doing so would stand in the way of sacrificing to your idol.”

      Matt 7:1: “Judge not, lest ye be judged.”

      We need a lifeguard up in here ‘cuz someone’s just gone overboard 🙂

      When Christ tells us to do good to those who despitefully use us, how much more should we be good to those who are kind to us? Like James, here? If we’re to seek the type of common ground & common courtesy that Denny discusses, then it starts with treating one another with mutual respect & dispensing with talk of war & battle. And if we want the LGBT community to respect our freedom of speech when Conservative Christians are in the minority, then we had darn well respect them while they’re in the minority. ‘Cuz, mark my words, the train to gay civil marriage has left the station & you can either get onboard, or get run over. I grew up in a railroad town & trust me, you’re better on the train than in front of it 🙂

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