Dec

10

2012

Joe Carter|2:31 AM CT

Supreme Court Agrees to Hear Two Same-Sex Marriage Cases

The Story: On Friday the Supreme Court announced it will take up California's ban on same-sex marriage and a federal law denying benefits for homosexual couples in states that allow same-sex marriage.

The Background: In 2008, California voters approved Proposition 8, a measure limiting marriage to a man and a woman. Last year, the U.S. 9th Circuit Court of Appeals said the proposition had illegally taken away a right to marry that gays had won in the state courts.

In a second case, the justices will review the constitutionality of the Defense of Marriage Act (DOMA) and its provision denying federal benefits to same-sex couples who are legally married. DOMA leaves each state free to decide whether to recognize same-sex marriages for purposes of that state's laws and includes a provision that no state is required to give effect to another state's recognition of same-sex marriages. As the L.A. Times notes, judges in California, New York, and New England states have ruled this law denies gays and lesbians the equal protection of the laws.

Federal circuit courts of appeals are not bound by the decisions of the other circuits, say John G. Malcolm and Elizabeth Slattery of the Heritage Foundation. Thus, for the sake of uniform application of the law across the circuits, the justices need to determine the constitutionality of DOMA.

Why It Matters: The Court's rulings on these two cases could redefine marriage for the entire nation.

The primary issues the Court will evaluate in the DOMA case is what level of scrutiny applies to equal protection challenges in this context and whether the proffered rationales for DOMA satisfy that level of scrutiny. In defending DOMA, the government's solicitor general, who was hired by the House of Representatives, has asserted that the government interests at stake include, among others:

• Preserving a uniform definition of marriage across state lines for purposes of allocating federal benefits,
• Protecting the federal treasury and respecting prior legislative judgments in allocating marital benefits on the understanding that they would apply only to heterosexual married couples,
• Defending state sovereignty and democratic self-governance,
• Exercising caution to avoid "the unknown consequences of a novel redefinition of a foundational social institution,"
• Recognizing heterosexual couples' unique ability to procreate and incentivizing the raising of children by their biological parents, and
• Expressing a preference for optimal parenting arrangements by encouraging childrearing in a setting with both a mother and a father.

The Supreme Court will now decide whether the Constitution enshrines a right to same-sex marriage, say Malcolm and Slatterly, or whether it will leave this divisive issue up to the people of each state and their elected representatives to decide.

In the Prop. 8 case, which has similar implications for marriage across the nation, the Supreme Court has four options:

1. Overturn the 9th Circuit ruling and uphold Prop. 8. This outcome would leave the definition of marriage to the individual states and its voters.

2. Uphold the 9th Circuit ruling, but do so in a way that limits the ruling to California's Prop. 8 legislation.

3. Dismiss the appeal on the grounds that the sponsors of Prop. 8 had no legal standing to defend it in court. This outcome would prevent the Supreme Court from ruling on the merits of the case. It would also leave the outcome of the legislation unclear since it would also vacate the 9th Circuit's ruling.

4. Issue a broad ruling that homosexuals have a constitutional right to marry someone of the same sex. This outcome would strike down the bans on such marriages in 39 states. While many gay rights advocates prefer this choice, others are concerned that such an act of judicial activism would lead to a backlash similar to the Roe v. Wade decision.

The Court is expected to hear oral arguments in March and have a ruling by June 2013.

Joe Carter is an editor for The Gospel Coalition and the co-author of How to Argue Like Jesus: Learning Persuasion from History's Greatest Communicator. You can follow him on Twitter.

Categories: Commentary
  • Lou G.

    It seems to me that "The Gospel" coalition is spending an excessive amount of time "reporting" on political and cultural issues. I'm getting weary of this approach. Sure, some Christians are clearly called to vocations that will influence these areas. But as a coalition that is supposed to be formed around the centrality of the Gospel message, I'm less and less interested in what this site has to offer to people whose main interest is sharing the Gospel and helping others find their way back to the Church.

    • Tim

      Lou G,

      The Gospel has implications for cultural issues that invites this kind of informative post. It's sad that you want to limit this kind of talk when it helps so many speak the Gospel into their context.

      It's up the to individual Christian if they want to abdicate their responsibility to be cultural influence for the sake of Christ, but we all do have a measure of influence to use, abuse or neglect.

    • Joe Carter

      Same-sex marriage is most definitely a "Gospel" issue. One of the reasons we cover this topic (and similar ones) so frequently is that too many believers still don't understand how sharing the gospel message will be impeded by these threats to religious liberty.

      For example, what happens when a homosexual couple wants to use your church for a same-sex "wedding" ceremony? Or what if you area a business owner who believes abortion is wrong and that you shouldn't have to pay for such evil? And what happens to those in college parachurch ministries who would prefer not to be lead by a Muslim or atheist?

      If your interest in sharing the Gospel and helping others find their way back to the Church, then these issues should be of primary concern for you. Unless our churches are places where we teach that abortion is an individual choice and that homosexuality is not a sin, then we need to ensure that we can continue to speak the truth.

      • Lou G.

        I agree Joe. I guess the political and cultural issues aren't my interest. I'm more of an evangelist/missionary type, and I'm grateful for the gatekeepers of the keys of kingdom and that sort of thing. Thanks for the reminder.

        • Matthew

          Wow! The rare, humble retraction on a blog comment section. Kudos to Joe and Lou for displaying gracious dialog as brothers in Christ.

          Thanks for the example fellas.

  • Rob French

    (1) These are definitely valid things to talk about, for the reasons described in previous comments.

    (2) Let's not get too carried away about the supposed impact of these things on our ability to share the gospel. (a) The early spread of the gospel occurred in the context of Roman persecution and/or at least opposition to Christianity. (b) Is not a cultural Christian veneer as damaging to spread of the gospel as outright opposition?

    • Joe Carter

      ***(2) Let's not get too carried away about the supposed impact of these things on our ability to share the gospel. ***

      I certainly don't want to overstate the case. But I think that unless we limit "sharing the Gospel" to it's most narrow scope, the issues we face today are quite a serious threat. What makes them such a threat, I believe, is that these issues undermine the plausibility structure of Christianity. In order for a person to accept something as true, they first must consider it plausible that the belief could be true. For example, you'd have a hard time convincing me that a blue fairy riding a unicorn was the cause of anything since I consider the existence of unicorn-riding blue fairies to be wholly implausible.

      Similarly, people will not consider a religious belief plausible if it requires that they believe something they do not think is true. For instance, many young people today simply can't fathom (i.e., consider plausible) the idea that homosexual behavior is immoral, much less that God could be opposed to "committed and loving" homosexuals joining together in marriage. Any version of Christianity that claims homosexuality is sinful will therefore be considered implausible and rejected for less orthodox varieties of religion. Sharing the Gospel is not just about being able to speak the words of truth, but also about the ability of the hearer to accept such truths. Anything that normalizes homosexuality will erode the plausibility structures of orthodox Christianity.

      ***The early spread of the gospel occurred in the context of Roman persecution and/or at least opposition to Christianity.***

      I'm hoping to write an article about this soon, so I don't want to say to much on the topic. But I think we miss the point of such statements. Yes, it's true that the gospel spread within the context of persecution. But too many people take from that the idea that persecution somehow greases the skids and makes the spread of the gospel *easier*. I don't think that is the case at all. Satan's purpose in persecuting believers is to *hinder* the gospel. The fact that the message still gets through shouldn't blind us to the fact that the message may have spread to even more people in the absence of such hinderances.

      • Joshua Wooden

        The question then becomes, what actually changes in the minds of unbelieving people when gay marriage is made illegal? In other words, what is accomplished by the courts that is NOT accomplished in the court of popular opinion? It seems you would need to win in that court for it to mean anything practical for the spreading of the gospel.

        Perhaps Christians should spend more time getting involved in mass media than politics that ultimately won't affect how they are perceived at a popular level apart from any favorable legal ruling.

  • David Matthews

    "The Supreme Court will now decide whether the Constitution enshrines a right to same-sex marriage, says Malcolm and Slatterly, or whether it will leave this divisive issue up to the people of each state and their elected representatives to decide."

    This is clearly a states rights issue. The Constitution doesn't give the federal government the power to define marriage at all (although you could make an argument that it's already been "defined" throughout human history). The 10th Amendment is clear. Any power not explicitly given to the federal govt is automatically given to the States and the people.

    • Launa

      I predict they will rule on the basis of discrimination. There are actual federal benefits going to couples who married. It is it also makes sense within the law to argue taxation without equal representation. Pro gay marriage proponents simply have to argue that the benefits, at the end of the day, are not going to them because their genitalia does not differ, which can easily be seen as legal discrimination based on previous court rulings that deal with gender and race.

      I have yet to hear a good legal argument against gay marriage. State's rights will be trumped if its a discrimination case like that of interracial marriage. The difference between the cases is purely theological and the court will not be able to make that distinction because it has no right to.

      I don't want the law to function in a way that would allow another outcome. Does anyone else feel the same way? I do not want a government that can deny tangible benefits and tax deductions based on theological understandings of sexuality and gender. It makes no sense to me and seems inherently un-American to me.

      I am not saying that our faith should not influence law heavily or that politicians should be secular in thought. But when the only arguments used in a legal court against something come down to something purely theological, it should not be treated as something the government should be able to act on.

      I do not want my government to function like my church. My wish would be for "marriage" to cease as something recognized federally because the benefits are so inherently discriminatory. Tax benefits should be based on how many dependents a working individual has/ which adults want to share assets etc.

      This argument has turned into "what kind of sexual contract does the government sanction with benefits". I think its a very creepy notion and I am constantly surprised at so many "conservatives" willingness to defend such legal hoshposh.

      The intertwining of God's union and the government is problematic on all levels.

      • http://thegospelcoalition.org Collin Hansen

        What right does the government have, Laura, to discriminate between any two individuals who wish to enter into marriage under the law?

        • Launa

          I am saying that I do not believe the government does have a right to enter citizens into marriage. Benefits should not go to individuals on the basis of a kind of sexual relationship. I think it is inherently discriminatory to those who are single, and also clearly those who do not share my beliefs, who should not be subjected to discrimination in the form of denial of federal tax benefits and other things.

          Other factors such as how many children someone has, dependents etc. should be the legal language for many of the benefits within marriage, not federal "marriage" and its implications.

    • Joshua Wooden

      "This is clearly a states rights issue."

      Well, apparently that's up to debate, and it will, in fact, be debated and decided upon by the Supreme Court. I suspect that the Supreme Court will only kick it back down to the states if they don't WANT to rule. Because if they did - no one could really stop them.

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  • Joshua Wooden

    As a native California resident, seeing these propositions and court decisions go back and forth over the last decade, and knowing that California is not alone, I think that we need a supreme court ruling on this. I tire of hearing advocates and critics argue day-in and day-out over the same points. We need some kind of ruling, and what's about to happen has been cooking in the oven for many years now. Of course, they may simply kick the issue down to the states, only perpetuating the current state of affairs (and mainly postponing the inevitable, from what I can tell), but who really knows for certain what they will decide.

  • http://www.amptoons.com/ Barry Deutsch

    Dismiss the appeal on the grounds that the sponsors of Prop. 8 had no legal standing to defend it in court. This outcome would prevent the Supreme Court from ruling on the merits of the case. It would also leave the outcome of the legislation unclear since it would also vacate the 9th Circuit's ruling.

    One minor nit-pick - if the Supreme Court vacates the 9th Circuit's ruling but doesn't rule on Prop 8's merits, then it's clear what the outcome is. We'd revert to Judge Walker's ruling (which has no standing issues), and Prop 8 would be overturned.

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