Brief Reflections on the Oral Arguments

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.

37 Responses to Brief Reflections on the Oral Arguments

  1. Curt Day April 29, 2015 at 6:47 am #

    If you want to refer to the framers of The Constitution as a standard, realize that they did not recognize Blacks or Indians as equals. And that is the issue here. Will us Christians share society with those from the LGBT community as equals. If not, we will be associating the Gospel with inequality. And that would make it more difficult to share the Gospel with others.

    • Brett Cody April 29, 2015 at 9:32 am #

      Actually Curt, to let the LGBT community *change* the fundamental institution of marriage would be to grant them special status, thus perpetuating inequality. No one is arguing that “Blacks or Indians” are not due the same rights to participate in the institution of marriage. The problem is changing the institution into a sinful fiction.

      • Curt Day April 30, 2015 at 6:57 am #

        Brett,
        But who has defined that institution and from what perspective? This is a discrimination issue only we use sexual orientation instead of race. And we justify that because sexual orientation is a choice. But what does that reveal about our feelings about race and orientation. That we will accept people of different races because it was not their choice, but we will not accept people from the LGBT community because it is?

        Also, they cannot “redefine” marriage because we own that? We own that for society? For a society that is supposedly based on religious liberty? I Cor 5 is very instructive in terms of how we are to relate to sexual sin in society. And we should especially note the distinctions made between the Church and society. We could also understand from I Cor 5 that the sin cited in that chapter is worse than homosexuality for at least the latter was known among the gentiles.

    • Denny Burk April 29, 2015 at 9:38 am #

      Curt, if the framers’ intent is not the guide for interpretation, then what do you propose should be the “standard”? The meaning of the text is what the framers intended, right?

      On slavery, the framers were wrong and fell short of their own principles. So we changed the Constitution through the amendment process. Are you suggesting that we change the Constitution through some other process in order to advance gay marriage?

      • Ike Lentz April 29, 2015 at 12:52 pm #

        “On __________, the framers were wrong and fell short of their own principles. So we changed the Constitution through the amendment process.”

        By your logic, couldn’t we fill in that blank with just about anything, including gay marriage?

        • Johnny Mason April 29, 2015 at 1:01 pm #

          Ike, you could, but notice the second half of your statement “So we changed the Constitution through the amendment process”

          The Constitution is silent on marriage. If you think the founders erred on this, then there is a process to remedy that, which is in amending the Constitution. Slavery didnt magically end because the cultural views changed, although that did happen, but it ended by changing the Constitution. So there are processes in place that can address these “oversights”.

          What is happening with SSM is the amending of the Constitution without a stroke of the pen or without the consent of the governed. Magically, because SSM is more favorable, the Constitution is deemed to support it. If the cultural tides are changing, like everyone seems to think, then SSM will come naturally through the legislative process. For the pro-SSM crowd, this process may be too slow, but on the plus side, they will have won the argument by changing people’s mind and using the democratic process.

      • James Stanton April 29, 2015 at 2:12 pm #

        The constitution does not address gay marriage. The decision will not hinge on what the founders would have thought of gay marriage. The legal issue being decided will likely invalidate a law passed by congress relatively recently that codifies marriage as between a man and woman. There seems to be no good constitutional arguments against gay marriage but I’m interested if anyone can point to one by legal theorists.

      • Curt Day April 30, 2015 at 7:10 am #

        Denny,
        Was it the framers’ intention that Blacks be counted equal to Whites? And how is it that their views on slavery fell short of their principles? How is it that their views on slavery were inconsistent with their other views? Have you read the Constitutional Debates?

        See, we get this idea that The Constitution was written in response to the American Revolutionary War. It wasn’t. It was written in response to widespread dissent against American elites and Shays Rebellion and how the government under the Articles of Confederation could not adequately respond to such a rebellion. The framers of the Constitution, for the most part, belonged to the upper class and were writing the document in order to strengthen federal government in order to preserve the current status quo, a status quo that served their interests. Please note the percentage of Americans who could vote immediately after The Constitution was written.

        What I am suggesting is that if you are going to practice equality, you must recognize same-sex marriage in society–this does not apply to the Church. This is an equality issue. So we don’t need to change The Constitution to allow for same-sex marriage. Rather, it is the opposite. For it those who defend traditional marriage who want to pass an amendment.

    • Lynn B. April 30, 2015 at 2:59 am #

      Curt: Actually, the Word of God is the standard and compromising His clear word on the matters of sexual acts is certainly a contradiction to His Gospel, which is a message of good news to sinners. The gospel message always begins with repentance and there can be no greater contradiction than condoning sin.

      • Curt Day April 30, 2015 at 7:16 am #

        Lynn,
        This isn’t about what God’s Word says about same-sex marriage. This is about what should we allow in society. Here, I Cor 5 is very instructive especially vs 12.

        But more than that, this is about how we Christians will share society with others. Will we share society as equals or will we assume a privileged position over them in the making of society’s laws? In addition, this is about whether we will rely on the evangelism alone to confront sins like homosexuality or will we also rely on some form of legislation.

        • Don Jackson May 1, 2015 at 7:23 am #

          Curt: I would suggest that your application of 1 Cor. 5 is skewed. It is talking about the church judging professed believers within the church (so much for those who want to banter about judge not). In America the citizens have a voice in how we are governed and we have a responsibility to steward that voice to the glory of God. That does not mean we are a theocracy but that does mean championing basic biblical morality.

          • Curt Day May 2, 2015 at 7:49 am #

            Don,
            Hope this isn’t a repeat, I tried to answer before. First, if you check I Cor 5:12-13, you will see how Paul looked at sexual sin in society.

            Second, we cannot both champion basic Biblical morality in society through legislation and work for equality. For the former relies on Christian privilege to control legislation. The latter says that Christians will share society with others as equals. But one more thing about the former, when any group seeks to control society, it pushes on the pendulum and any significant discontentment with the group that pushes on the pendulum will cause the pendulum to return to swing the other way.

            • Don Jackson May 4, 2015 at 5:10 pm #

              Curt: My Bible does not tell me to work for equality and it certainly does not tell me to work for the equality of those seeking accommodation for their sinful lifestyle.

              Championing basic biblical morality does not rely on Christian privilege but the Judeo-Christian ethic has been the lowest common denominator to all that made America great.

              • Curt Day May 5, 2015 at 12:35 pm #

                Don,
                Mine does whether it comes from Romans 2 where Paul says that God shows no preference, Galatians 3:28 where there are no divisions in the body of Christ to the OT prophets. And we have I Cor 5:12,13 where Paul says that he is not there to judge outsiders because that is God’s job.

                If you are interest in justice, you will be interested in equality. And what you think has made America great is still privilege because Christians have a superior position in determining our laws, not an equal position. In addition, many Blacks and Indigenous Americans, as well as victims of America’s imperialism, may not share your assessment of America.

                • Don Jackson May 6, 2015 at 9:18 am #

                  Wow Curt, your misunderstanding and misapplication of scripture is quite amazing. I wish we could sit and talk. Since we cannot, I would encourage you to consider the old Moody Science film, “Empty Cities.” George Sweeting makes an interesting argument that consistently throughout time it has been turning from God and subsequent moral and spiritual decay that brought to ruin the greatest civilizations. You will have to overlook Dr. Sweetings’ sky blue polyester suit; like I said, it is a very old film but the message is just as timely today as when I first viewed it forty or fifty years ago.

                  One other thing, how do you know I am not black or Native American, or both? If you believe yourself to be a “victim” of American Imperialism (whatever that means), I would encourage you to count your blessings. You may be aware that one of our significant national challenges is illegal immigration because somehow a great many people want to share in the blessings of being part of the United States of America.

  2. James Bradshaw April 29, 2015 at 7:12 am #

    Like most cases, it’s all a matter of angles.

    Is there a constitutional mandate for states to redefine the parameters of civil marriage? I don’t think so. They would be implying that the early framers intentionally excluded gay couples from the legal institution.

    At the same time, do gay marriage bans, which actively forbid a state from recognizing a same- sex marriage, uphold the equal protection laws and have a rational basis behind them? I don’t think so.

    There are competing considerations here, and this could go either way, but I think it will ultimately be left to the states.

  3. Brett Cody April 29, 2015 at 8:15 am #

    There is a need to point out here that those supporting so-called same-sex “marriage” have made arguments citing the existence of homosexual “marriage” in ancient cultures as a precedence for accepting it now. They have also belabored the point that homosexual “marriage” will not affect the lives of those around them…

    This is nothing but intellectual dishonesty and, as is made abundantly clear in the oral arguments, will guarantee the destruction of free speech and religious liberty.

  4. ian Shaw April 29, 2015 at 10:36 am #

    Denny, if the USSC rules that states shall issue marriage licenses to 2 people of the same sex, does that open the door for forcing churches to marry people of the same sex? I’m only asking as when you turn in a marriage license to the county court office after you get married, there is a line for an official (usually signed by a religious official or a justice of the peace. If the court finds that states have to issue a marriage license and the only way for that license to be valid is with a signature of an “official”, could SSM groups put legal pressure/have legal precedent on churches to force them to marry same sex couples?

    • Denny Burk April 29, 2015 at 10:56 am #

      Yes

    • Denny Burk April 29, 2015 at 10:57 am #

      Yes, there’s a real question whether ministers would be able to remain licenses agents to perform marriages.

      • James Bradshaw April 29, 2015 at 12:03 pm #

        Why? Despite laws protecting religious affiliation, no minister has ever been forced into marrying a Christian and a Jew.

        Why would there be a different legal expectation for gay couples?

        • ian Shaw April 29, 2015 at 1:33 pm #

          None have been forced yet….

          Just an example and I’d like to hear your feedback James. Say a gay couple really want to get married in a church. They are religious, but really like 1-2 specific churches for X, Y, Z reasons. They go to the church office and inquire about getting married there. The staff or pastor(s) tell them that while they’re loved, they cannot marry them in the church. The couple really want the location and cry foul to the state. Does the state have the authority (if SSM is ruled in favor of by the USSC) to pulling the licensing privilege from that church’s pastoral staff for refusing to marry them as the state dictates that they can/cannot refuse? Therefore the pastoral staff at that church can no longer sign marriage licenses (and make their ability to perform ceremonies moot in the eyes of the state)

          The couple could most likely go to another church that supports SSM and be married, but they pursue legal with the state AG against the church that refused them. Sounds a lot like bakers, florists and pizzerias’, doesn’t it?

          • James Bradshaw April 29, 2015 at 4:07 pm #

            Ian: I would assume that no one can force a church to perform a marriage ceremony any more than it can demand it perform a baptism.

            Now, in terms of the licensing abilities of a pastor: I would think exemptions would be extended to clergy, but I’m uncertain. If they are legally able to deny civil licenses to interfaith couples or other couplings they do not approve of, I would think that right should continue whatever SCOTUS decides. I tried to find what the laws are, but I couldn’t find anything.

            “Sounds a lot like bakers, florists and pizzerias’, doesn’t it?”

            No one sued the pizzeria, but I generally find it detestable for someone to sue a small business when they have other options. This is not what I’m fighting for.

            • ian Shaw April 29, 2015 at 4:47 pm #

              Thank you for your honesty James. It is appreciated.

          • James Stanton April 29, 2015 at 9:44 pm #

            Abortion is legal, generally, in the United States. Are doctors forced to perform abortions?

          • Lauren Bertrand April 30, 2015 at 7:36 am #

            More than 50 years after most civil rights legislation, a number of small churches (mostly scattered throughout the mid-south and lower Midwest) still exist that profess that only people of white European descent will inherit the kingdom of God. Better known as “Christian Identity” churches, they keep websites that state their doctrine, and they continue to operate. Granted, the Southern Poverty Law Center keeps watch on most of them as “hate groups” but is powerless to stop them from existing. And you know as well as I do that if the SPLC could shut them down, it would.

        • Gus Nelson April 29, 2015 at 8:22 pm #

          James: Up until now, people in the United States actually understood the First Amendment permits freedom to exercise religion. Now people think it means freedom to worship only. That freedom will now be measured against equal protection. Which gets the upper hand? If equal protection, (which seems likely) then churches will find themselves in all kinds of legal hot water. Given the comments and articles I’ve read elsewhere, this is precisely where many who are against Christianity want this to go. It’s not that far-fetched.

          • Chris Ryan April 30, 2015 at 12:53 am #

            Actually, its the reverse. Historically, the 1st A only referred to religious worship. In fact it was Scalia who wrote in defense of that principle: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” So this freedom you mention is a very recent development!

            In response to Scalia’s opinion Congress passed the Religious Freedom Restoration Act in 1993 which said the gov’t couldn’t ‘unduly’ burden the free exercise of religion. But this is a statute, not part of the Constitution, and it can be repealed.

        • Lynn B. April 30, 2015 at 3:10 am #

          James: I agree with your analogy about marrying people of mixed faiths. Church policy on whom they will marry may protect them from SSM unless or until this becomes really militant.

  5. dr. james willingham April 29, 2015 at 1:32 pm #

    The idea that the Solicitor General saying that the law will challenge tax exempt status of religious institutions that stand against same sex marriage is proof positive that this thing was planned long ago. Even the Washington Post’s recent article, taken from the National Review, admitted that the people pushing this agenda who had indicated that they would respect the rights of others are not doing so. They are already proving that they can indulge in a witch hunt, suing bakers for example. One young man who spoke out against his childhood raising by two same sex partners, saying he should have had heterosexual parents for balance was declared to be an extremist of the worst sort. Imagine that! If there was ever a time for good people to come together for the sake of their country, that time is now. We need to organize, demonstrate, march, bring law suits, especially based on the violation of our constitutional rights of freedom of religion and speech and press which is a case of treason being committed against our rights. I once, long ago, saw where there was a fine of $80,000 and/or a five year prison sentence for such a crime. Have they changed that law? If they have not, then we ought to go after our opponents on that basis. However, I understand that this whole thing is aimed at the destruction of the USA, a goal of certain groups dating back to the founding. The old story of the frog slowly being boiled to death certainly applies to this situation, and religious people are the frog in to-to.

  6. Nathan Cesal April 29, 2015 at 4:27 pm #

    During the millennia that Kennedy spoke of, a minority was derided and excluded from the public square. They were killed, bullied, beaten, castrated, shocked, lobotomized, ostracized, ridiculed, abandoned, and abused. Where was the church? Huh? They stood on side and approved if they weren’t participating. For millennia. Instead of bemoaning that this group of people is starting to be treated humanely and fairly, why aren’t you happy that they are finally being given a chance at life — at flourishing.

    Just stop. Please.

    • Andy Bungalow April 29, 2015 at 6:03 pm #

      You do realize that the idea of a homosexual orientation was invented in the last 50 years or so right? That homosexuality in the millenia of the ancient eras (including the times of the Bible’s writing) was something that “straight” people engaged in for fun right? The mythical “group” your are talking about doesn’t exist.

      • Nathan Cesal April 29, 2015 at 7:07 pm #

        Andy B, add to my list above that gay people didn’t even have the right to exist.

      • James Bradshaw April 29, 2015 at 8:25 pm #

        “homosexuality … was something that “straight” people engaged in for fun”

        Really? I know quite a few straight men, and even in our metrosexualized culture, I can’t think of any who would have gay sex just for the heck of it.

        Is this something you find appealing and just decided you should not because it’s unethical (like fornication)?

        See, there’s nothing in me that is interested in having a physical relationship with a woman. Nothing. I like women. I can talk to them and be friends, but a woman married to me would feel quite neglected (at least romantically speaking).

    • dr. james willingham April 30, 2015 at 1:14 am #

      If you are talking about Eugenics, I am acquainted with the subject and the evils wrought with the approval of the Supreme Court. The same could be said about segregation and slavery, the treatment of the Indians. The fallen nature of man as evinced in greed goes a long way to explaining much of the miseries involved, while the drive for security for the wealthy explains the wars as well as the extermination of huge numbers of the population, one way or the other. I do not advocate the mistreatment of those identified in the Bible as Sodomites, but I am fully aware of the fact that they are moving on all fronts to stifle dissent and force Christians back into a ghetto with few, if any rights. Even the Post or Times published an article of how the homosexuals had said they would not do such things, but we find them suing an elderly baker and subjecting others to like treatment. Even a young man raised by same sex parents came out against the practice, saying he needed a male and a female as parents. For that he was identified as a bigot and attacked viciously. Two lesbians lived across the road from me for about 10 years. Never once did I attack them or say anything about the situation. They even displayed one of their terrible arguments out in the middle of the road. Some flourishing. I am also aware of the increase in the number of rapes in the military by homosexuals. I was once threatened by one, when I said that I did not want to be bothered. When he refused to desist, I spoke of violence, and he responded with a threat of his gang. Difference between our threats? I just wanted to be left alone and did not want to fight. He, on the other hand, would beat an old man to death on the street and the last time I saw him he was waiting to face a trial for murder. I counseled one homosexual who had a run in with the law. Can’t say I helped him or not. I can say I did not use any of the epithets or spoke out of the way; it was a calming discussion of the options which he faced.

      Just think, I live about a 50 minute drive down the highway from a battlefield of the American Revolution where one of my ancestors fought to secure religious liberty for his descendants. I had other family members involved in the American Revolution, and I do not propose to give up my religious rights. Period.

  7. Robert Karl April 29, 2015 at 6:10 pm #

    The SOCTUS will definitively overturn the ban of homosexual marriages. The government or private individuals will criminally or privately prosecute any religious institutions who prohibits same sex marriage ceremonies. The cake makers are the first to fall.

    In light of his his recent passing, Archbishop George of Chicago correctly opined that he will die in his bed a free man, but his successor will be in jail for upholding his religious beliefs. and his successor will die for doing the same.

    Are we willing to do the same?

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  1. The Saturday Post(s) | A Pilgrim's Friend - May 2, 2015

    […] Brief Reflections on the Oral Arguments from Supreme Court. “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.” […]

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