Before yesterday’s oral arguments on gay marriage at the Supreme Court, I had contended that the Court’s decision was pretty much a foregone conclusion. I predicted that by the end of June, the Court would rule gay marriage to be a Constitutional right. Now that the case is in, I have listened to all of the arguments made by attorneys on both sides of the question. I have also listened to the Justices’ grilling of those attorneys, and I can say this. I am no Constitutional scholar, but I heard nothing today that would alter my original prediction. The Court will ensconce a Constitutional right to gay marriage.
In addition, I would offer five brief observations:
1. There was one exchange that sent a chill down my spine. President Obama’s lawyer acknowledged that religious organizations would have their tax-exempt status challenged if the Supreme Court declares a right to same-sex marriage. Justice Alito asked the Solicitor General if a religious university might lose tax-exempt status if it refused to recognize gay marriage (e.g., in student housing). Solicitor General Verrili replied:
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 (p. 48).
This is an enormous concession. To say that this bodes ill for religious liberty would be an understatement. Loss of tax-exempt status would effectively shut down these Christian institutions because of their beliefs about marriage. If you pay attention to nothing else that happened in yesterday’s proceedings, pay attention to this. A Constitutional right to gay marriage could pose the biggest threat to religious liberty that we have ever faced in this country.
2. I don’t think Roberts will be a swing-vote as some have speculated. The court is clearly divided. It’s four conservative justices against gay marriage (Roberts, Scalia, Thomas, Alito) and four justices for gay marriage (Ginsburg, Breyer, Sotomayor, Kagan). The swing vote is Kennedy. Some observers think that Kennedy could go either way on this, mainly because of his hang-up on the word “millennia” (see oral arguments). I think that was just a head-fake on Kennedy’s part. Kennedy will cast the deciding vote in favor of gay marriage and will write the majority opinion. That’s my prediction, and I hope I’m wrong.
3. It was a relief to hear the justices grill the attorneys about the meaning of marriage. I wish that as a culture we might drive the same kind of conversation. But I am not holding my breath. In my view the definition of marriage is the fundamental question that is often overlooked.
4. The arguments revealed just how much the institution of marriage has already been weakened in our culture. It is clear that the justices in favor of gay marriage see no rational basis for connecting marriage to procreation. In the sweep of history, these justices are outliers. But today, they represent the mainstream, and that is sad. Common sense has become quite uncommon in the aftermath of the sexual revolution, even among those who preside at the highest court in the land.
5. If you step back and think about it, it is completely implausible to imagine that the framers meant or implied a right to gay marriage in the Constitution. But I don’t think that the majority who will decide this case are concerned about that at all. John Piper was downright prophetic on this point over a decade ago:
What has changed dramatically in the last fifty years is the concept of meaning and truth in our culture. Once it was the responsibility of historical scholars and judges and preachers to find the fixed meaning of a text (an essay, the Constitution, the Bible) and justify it with grammatical and historical arguments, and then explain it. Meaning in texts was not created by scholars and judges and preachers. It was found, because the authors put it there. Authors had intentions. And it was a matter of integrity to find what a writer intended—that was the meaning of the essay, the Constitution, the Bible. Everybody knew that if a person wrote “no” and someone else creatively interpreted it to mean “yes,” something fraudulent had happened.
But we have fallen a long way from that integrity. In historical scholarship and in constitutional law and in biblical interpretation, it is common today to say that meaning is whatever you see, not what the author said or intended. To get right to the point, today the Constitution is being “amended,” whether we like it or not. That is, courts are finding there what never was there in any of the authors’ minds, namely, a right to marriage between two men or two women. This kind of so-called interpretation creates out of nothing a definition of marriage that has never existed. In other words, the question is not whether the Constitution will be amended concerning the meaning of marriage and the rights of homosexual people to marry; the question is simply how it will be amended. Will it be by the means established by the Constitution itself? Or will it be by the Supreme Court creating a meaning for the Constitution which was never there in the authors’ farthest imaginations?
We will have more to say about this when the decision is handed down at the end of June. I think I know how the Court is going to rule. We will all know soon enough. In the meantime, we wait for that other shoe to drop.