Monday, March 25, 2013

The Supreme Court Decisions on Same Sex Marriage

I'll be writing more in the series on the Tell-Tale Passages for Soteriology, to add to parts one, two, and three of last week.  I also want to write a post about rampant fake spirituality in churches.  Stay tuned on that.  But this week some decisions will be heard in the United States Supreme Court.  Read what I wrote on below in 2010.


The Supreme Court of the United States (SCOTUS) will hear a couple of cases this week on the subject of same-sex marriage (SSM).  What Is Truth writes opinions about public events based upon the Bible.  What I hear more than anything is that public opinion is shifting on this subject at a dramatic pace.   In the Gallup poll in 1996, 68% opposed SSM.  In the 2012 Gallup poll, 48% opposed it.  A Washington Post/ABC News Poll says that in 2004 55% opposed and 41% supported, while in 2013 36% opposed and 58% supported.  They tell us as well that young people are the large majority of those who support it.  People's opinions have changed in America, and I believe that.

One case deals with my home state of California, the attempt to overturn Proposition 8, which added the definition of marriage of a man to a woman to the state constitution.  Marriage is a state issue and California made opposite sex marriage as legal as it can get in the state by putting it in its constitution.  Then the ninth circuit federal appeals panel of three judges ruled by a split decision to overturn the citizens of California and the state constitution.  On August 4, 2010, Judge Vaughn Walker ruled that Proposition 8 violated the constitution of the United States.  On April 6, 2011, Judge Walker told reporters that he was homosexual.  The case is now called Perry versus Brown, and was a constitutional challenge to the denial of a marriage license to Kristin Perry with Sandra Stier.   Brown is Jerry Brown, governor of California, who chose not to defend Proposition 8 in court.  Official proponents of Proposition 8 were allowed to intervene to defend the Proposition.

What's the SCOTUS going to decide?  When people start relating their decision to public opinion, shouldn't that send off warning signals?  The SCOTUS is supposed to be apolitical.   However, here are two choices.  One, it could rule against Perry on behalf of Proposition 8, arguing that marriage is not a federal issue, but a state issue.  That would be a powerful ruling, yet with what would seem to be some complicated ramifications that I'll mention later.  Two, it could argue that Perry's constitutional rights were violated and make same-sex marriage legal across the United States.  Most are comparing this to the Roe v. Wade decision in 1973 that legalized abortion everywhere in the United States.  I don't see any possibilities but those two choices.  I don't think the conservative majority in the Supreme Court, even with the libertarian-esque, Justice Anthony Kennedy, would make marriage a federal issue either by opposing or supporting same-sex marriage.   By either a 5-4 or 6-3 vote, the SCOTUS will send the decision back to the states to decide.  Many look to the statements by Anthony Kennedy in this article and even Justice Ruth Bader Ginsberg in this article as predicting a win for Proposition 8.

This week the SCOTUS will also hear arguments over the Defense of Marriage Act (DOMA), passed into federal law in 1996.  The challenge to that law in the court relates to the death of a lesbian army staff sergeant killed in Afghanistan, and the rights of her "same-sex spouse" to be notified of her death and to receive the flag that would drape over her coffin.  It is called United States v. Edith Schlain Windsor, In Her Capacity as Executor of the Estate of Thea Clara Spyer.

As with so many of these types of cases, the petitioners are arguing based upon the equal protection clause of the fourteen amendment, contending that their right to marry is being violated.   Same-sex marriage supporters would say they should be given equal "rights" to marry as "opposite-sex" couples.

I'm sure someone has either written or commented that there will still be an issue with same-sex marriage, even if the SCOTUS upholds Proposition 8 in California.  This is the complicated ramification of it being a state only issue that I mentioned above.  What happens when same-sex couples, married in states where it is legal, move to a state where it is illegal.  Will their status, as "married," be protected?  If the definition of marriage is different in one state as it is in another, marriage becomes more than a state issue.  Perhaps this is a tension that the country will have to deal with.   Same-sex couples may not be recognized as married by opposite-sex only states.  Let's say a same-sex couple travels to New York, is married, gets its married license, and then moves back to their original state, where same-sex marriage is not legal.  They won't be considered to be married where they live.  I predict that this ramification will result in a sooner than expected ruling on this issue.  The way things are going now, I think that the Supreme Court in the near future will make same-sex marriage the law of the land.

These cases are as important as any SCOTUS decisions in the history of the United States.  They will remembered for years to come.   If you are a Bible-believing Christian like myself, you understand the spiritual implications of such a decision to the future of the United States in light of Romans 1.


How could American opinion be changing so quickly on this issue?  Americans have lost trust in the Bible as an authority.  I've written a lot on this here at What Is Truth.  The Bible is clear about homosexuality.  People aren't born that way.  There is no same-sex marriage.  It is sin like fornication, adultery, murder, and stealing.   It is worse than certain sins, because it is an abomination (Lev 18:22).  It is disgusting to God, personally offensive, rebellion in the most fundamental way again Him.  More and more issues are becoming disputed.   Even church people aren't sure of the Bible's inspiration, inerrancy, or preservation.  They aren't sure that we know what the Bible means with any certainty.  Christian leaders at even conservative institutions argue now regularly and with acceptance that we should turn almost any belief outside of the gospel into a non-essential.  This is where this treatment of scriptural teaching leads us.  We can't come down with any conviction on something so simple and so certain.  If we aren't sure about authority, then we're sunk anyway.  I think we're sunk anyway, but it's still worth fighting.

Furthermore, being accepting of homosexuals is seen as loving.  It is judged as compassionate.  It is a church growth technique.  It will "help" your gospel preaching.  If you remove preaching against homosexuality as necessary, you can have "greater opportunities" to see more people saved.  This is a new measure in evangelicalism today, actually finding some sympathy among even fundamentalists now too.   That's not all.  Christians are afraid.  They don't want to be persecuted for a stand in this area.  They don't want to be judged as "hating homosexuals" or "homophobes," so they leave it out.  This fear is the real cause of the silence.   Equivocation masquerading as nuance says that we don't want to single out homosexuality when there are a whole lot of other sins that people are committing, who even call themselves Christians.  On top of all of that, there is more effeminacy in churches than ever.   The churches don't want to reject the acceptance of their own children and potentially turn them off to the things of the Lord.  Older folks think their kids might be upset if they come out too hard.  This is likely the influence of worldly culture on their thinking.  It's not politically correct to oppose homosexuality in the culture.  You're a bully if you do.  Being a bully doesn't seem like the Christian way to be.

Homosexuality, at its root, is a rebellion against God's creation.  God created male and female.  God ordained marriage as between one man and one woman.  Today Christians are questioning the creation account in Genesis 1-3.  An evolutionary way of thinking is going to undermine teaching against homosexuality.  The word homosexual itself justifies the behavior.  It makes the behavior seem like an alternative, if not an acceptable one.  Sodomy and sodomites are old time words.  Those make it clear that the behavior is not a part of divine design, but sin.  They are not words often heard any more because of societal pressure.

Perhaps as much as anything, movies and television and music have affected change in people's thinking.  The entertainment industry is full of sodomites.  They make the behavior look acceptable.  Christians were once vary wary of Hollywood.  It was wrong to go to movies.  Then came television, then videos.  Christians had to decide about those.  Resistance eroded and now Christians are the biggest movie attenders in the country.  If you don't think this has had a major effect, then you don't know what's going on.  Even if you like movies, you've got to admit they aren't the best influence on your life.   They are a battle for Christians and the truth.

We know the Bible condemns homosexuality, but scripture can't be used to argue in a secular court.   What is the best legal argument against same sex marriage?  What can be used to stop it in the courts?  It would be worth trying to stop, but how do we do that?


The best legal argument against same-sex marriage, I believe, is the polygamy argument.  I heard Douglas Wilson make it recently in a debate against Andrew Sullivan on whether same-sex marriage is good for society.  I didn't think that Wilson did very well in the debate, because he didn't show enough on how bad same-sex marriage is for society.  However, as a legal argument, I thought it was very good.

Here's the argument.  If polygamous marriage (or even beastial  or under-aged marriage) is illegal, then we are determining the definition of marriage by the direct object.  "Marriage is when a man marries ______________________."  We've already outlawed polygamous marriage, so that is a legal precedent.  We have already ruled on behalf of the single direct object, opposite gender only fits into the blank.  Marriage is marriage and we change marriage by changing the direct object.  We can't legalize same sex marriage without opening the door for further changes.  I think that is the best legal argument.

The way they'll argue against it in the Supreme Court, I believe, will be based on the tenth amendment.  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  Marriage is not a power delegated to the federal government, nor is it prohibited by the states.  Just the opposite, it is a state issue.  People will have to decide in each state whether it should be allowed or not.


Marriage for most of history had pretty much been mutually exclusive from homosexuality.  The interest in marriage is new.  What is it?  It is an attempt to legitimize the behavior.  If the court rules in favor of same-sex marriage, it legitimizes socially the behavior.  The trend toward marriage pursues the opportunity to make it look normal.  Before it was deviant, not it is not just acceptable, but real.  They're real couples, real marriages, just like any marriage.  I would say that it is more than attempt to legitimize homosexuality, except that I don't think it is anything but that.  If it was economic or financial, that could be attained through civil unions that fall short of marriage.  Homosexuals want acceptance from everyone, whether everyone likes it or not.  They want people to tell them that their urges are natural and understandable.  They don't want to be outcasts or to be considered sinful.  When we as a society tell them they are OK, this is a pivotal moment.  It is akin to the religious leadership of Israel rejecting Jesus Christ.  It's a watershed, where we've reached the backside on the slope toward destruction.

Our social institutions are reaping the seeds of moral relativism.  At a root level, it is faithlessness.  It is a foundational epistemological problem.  How do we know what we know?  We know by faith.  Our culture has rejected faith.  Without faith, it is impossible to please God.


I could have predicted that few would comment on this post.  It's generally a no-brainer to my audience.  Why show support?  It's that obvious.  Here I am in the middle of the day and other things occurred to me, so I'm going to add.

What got me to write more here is what I'll call the "Roe Factor."  Roe v. Wade brought passion to the issue more than it would have.  If abortion was kept a state issue, I believe the issue would have decompressed.  Instead, it was sent into high pressure.  Same with same-sex marriage in these cases.  I don't think the SCOTUS justices will want to escalate the passion on this issue by overturning a state constitutional amendment.  That won't help with support for same-sex marriage overall.  It will make people very angry.  Just a prediction.  The justices won't want to repeat the mistake of Roe.

The other additional thought is that I don't believe the polls exactly.  You have these polls and then you have elections where 39 states have banned same-sex marriage.  It just doesn't jive.  I think public opinion is changing quickly, but something is the matter with the polls.


Anonymous said...

I think you're mistaken on Prop 8. All the lower courts threw it out as unconstitutional, so if the Supreme Court doesn't intervene specifically in favor of it then it goes. The lower courts' judgements stand.

Kent Brandenburg said...

Thanks Anonymous,

I understand the courts ruled it as unconstitutional. That's the decision. The Supreme Court is ruling on the constitutionality of Prop 8. I believe that they will rule that it isn't a constitutional issue, so not a federal issue, so a state issue. In other words, they'll overturn the lower courts.

I recognize that they might want to do something to keep marriage legal in California, but I don't know how they can have it both ways, especially after reading the oral arguments today.