The American Supreme Court and Same Sex Marriage

On 26 June 2013 the U.S.A. Supreme Court issued rulings that boosted the cause of same sex marriage by a 5-4 decision, and ruled that the Defense of Marriage Act (DOMA) was unconstitutional.

This is a major decision that will have long term impact. The court accelerated the advance of gay marriage in the US, and decided that defining marriage as the union of one man and one woman is unconstitutional.

No Christian should be unaware of this decision or its implications.

But rather than read articles about the Supreme Court ruling, I read the entire seventy-six page decision myself. I slogged through all seventy-six pages of the complete decision – majority and dissent, in order to get a firsthand, undistorted sense of what each side was arguing. Let me summarize what I found – the majority supporting gay marriage, and the dissent opposing it. As you read, see if you can discern the worldview clash taking place among the justices and the two conflicting visions on the court.

First, for the majority who favoured gay marriage, equality and freedom are the ultimate values. They view DOMA as unconstitutional for depriving liberty and writing inequality into the law. For the dissent, on the other hand, tradition and Christian morality have greater weight than freedom and equality. It’s not that freedom and equality don’t matter. But they are valued within the wider framework of a traditional moral order.

Second, the majority argued that the Constitution guarantees equality but has no bias on marriage. The dissent, on the other hand, argued that the Constitution’s silence on marriage should not be taken as indifference. They do not believe the right to same sex marriage is deeply rooted in our nation’s history or tradition. In fact, they argued that no country has allowed same sex couples to marry until the Netherlands did so in 2000.

Third, the majority said DOMA denies rights and privileges to hundreds of thousands. Whereas the dissent loudly argued that enshrining gay marriage as a civil right will discriminate against all those who hold to a traditional view of marriage.

Fourth, the majority emphasized that perspectives on marriage have evolved. They spoke of new insights which ‘enlarge the definition of marriage.’ The dissent, on the other hand, underscored that marriage and family is an ancient universal human institution. Justice Roberts said that DOMA defends a definition of marriage which has been adopted by every state in our nation and every nation in the world for virtually all of human history. They added that we do not know the long term consequences of this radical new experiment in marriage and family.

Fifth, the majority argued that homosexuality and homosexual marriage is as acceptable as heterosexuality and heterosexual marriage, implying that Judeo-Christian morality is wrong. The dissent repeatedly differed with the majority on this.

Sixth, the majority opinion said that DOMA was primarily motivated by a ‘bare desire to harm.’ DOMA’s supporters, they said, demean, injure, humiliate and degrade a class of persons. In other words, the traditional view promotes hateful bigotry. The dissent, however, countered that DOMA was written primarily to defend a view of marriage which sees it as highly beneficial to society. Justice Scalia protested that DOMA’S supporters are now being cast as ‘enemies of the human race.’

Seventh, the majority opinion said the federal government has no legitimate interest in marriage and family, and said that this is primarily a matter for states and not the federal government to decide. The dissenting justices did not buy this. They said that government does have a legitimate interest in marriage and family for the well-being of society. Furthermore, they argued the majority was posturing with its ‘states’ rights’ justification. Behind their rhetoric is a cloaked federalism, driven by judicial overreach.

Finally, according to the majority opinion, this is a singular ruling that stands on its own. Whereas the dissent said that no one should be fooled. It is only a matter of time before the other shoe drops and this opinion becomes enshrined in constitutional law, and that anyone who opposes same sex marriage will be seen as an enemy of human decency. This ruling, said the dissent, will be used to claim that the traditional definition of marriage has the purpose and effect to disparage and injure the person and dignity of same sex couples.

I would not review a Supreme Court case like this if I did not think that it will have immense consequences. And while the judicial process has not yet fully run its course on this issue (the legal battle moves to the states), I think it is heading in the wrong direction. I think the court got this wrong, because ultimately marriage is defined by God’s law.

This decision is symptomatic of a disordered liberty, and another indication of how lost our Western world is becoming. But having said this, I am not hopeless. Nor should you be. Truth is truth. God’s moral law and order stand. There is an ordered liberty which is good. And Jesus Christ still sets people free!

But the outcome of this ruling will not lead to true freedom, or human flourishing.

However, the dissenting judge Antonin Scalia offered the longest opinion as to why this was a misguided and ominous ruling.

Some on the left have tried to present Scalia as a nut case. They talk of his ‘intemperate dissent.’ It was passionate, I’ll grant you that – all twenty-six pages of it.

He criticizes the verdict as judicial overreach. But most interesting is his statement that Justice Kennedy and his colleagues in the majority have essentially resorted to calling opponents of gay marriage (i.e. those who defend traditional marriage) ‘enemies of the human race.’ Scalia does so on the grounds that the ruling itself uses intemperate language, saying those who support DOMA and traditional marriage ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ those who are homosexual. ‘All that,’ wrote Scalia, ‘simply for supporting an Act that did no 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.’

Scalia’s statements are striking and not overstated. Because since 2010 the Department of Justice (DOJ) has argued that acting to protect traditional morality shows hostility to gays and lesbians as a class. In other words, to the DOJ, and now to the Supreme Court, traditional notions of morality are themselves hostile. So, by implication, Christian morality is not just discriminatory, it is hostile.

Most people do not seem to realize where this little phrase ‘enemies of the human race’ comes from. It was used by Tacitus, the first century historian of the Roman Empire. It was used to describe the Neronian persecution against early Christians. Nero accused, arrested and tortured many. He used them as scapegoats for his own troubles. One of his accusations was that Christians hate the human race. Tacitus goes on to say that as a result Nero mocked them, covered them with skins of beasts, had them torn apart by dogs, nailed to crosses, or tied to posts and burnt as living torches for a spectacle in his garden parties.

All this because Christians believed in Christ crucified and did not find the self-indulgent life-style of many Romans acceptable (including the homosexual life-style).

The use of this phrase ‘enemies of the human race’ by Justice Scalia serves as a warning for what may be ahead. Not that Washington is about to burn Christians. But some are putting us in the same category as anti-Semites and the KKK because of our objection to gay marriage.

Scalia’s words are a warning that a season of church-state conflict lies ahead – that litigators will start suing groups that are ‘discriminatory,’ and that there will be more ostracism of Christians in public leadership. He also said that the ruling is a sign that the majority on the Supreme Court is now ready to declare gay marriage a constitutional right.

What is particularly striking about the timing of this ruling is that it takes place on the 1700th anniversary of Emperor Constantine’s Edict of Milan (313 A.D.). That famous edict reversed a 200-year-old policy of the Roman Empire against Christians which led to discrimination and persecution. The Edict of Milan decreed that freedom of religion is inherent to each human person. It announced that ‘all who choose a religion are to be permitted to continue therein, without any hindrance, and are not to be in any way troubled or molested.’

The Western world is not interested in celebrating Milan. Instead it is going backwards. It is embarrassed by Christianity. It refuses to even recognize the contribution Christianity made in shaping our culture. It casually defies the laws of God. It reduces the freedom of religion. And it forgets that all civilizations rise and fall and will be judged by the Supreme Judge of all the earth.

It was the early African Christian apologist Tertullian (c.160-225) who wrote to his pagan accusers, ‘You choose to call us enemies of the human race, rather than of human error.’ But then he added, ‘to tell the truth, we are enemies, not of the human race, but of human error.’

In light of history, Scalia’s words were no rant, but an insightful observation of the immense clash of vision that this ruling represents. He is historically informed enough to know what has happened before and where we may be headed.