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Perspective: A Do Nothing Victory


On October 6, the United States Supreme Court refused to hear several cases pending pertaining to same-sex marriage.  The next day, the 9th Circuit Court of Appeals struck down bans on same-sex marriage in two states and provided several rationales for allowing same-sex marriage constitutionally. Although there have been some legal holds and natural judicial delay, it is possible that same-sex marriage will become the law in up to thirty-five states. Predictably there has been some hand-wringing from social and religious conservatives, but the decisions this week have been an implicit victory for religious liberty and faith, as well as for the rights of same-sex couples.

It should be noted, however briefly, that there is a glimmer of hope for the opponents of same-sex marriage. The denial of certiorari (“cert”) is not a definitive ruling. Some advocates for same-sex marriage, despite this week’s positive events, are troubled by the fact that the Court did not grant cert in order to rule definitively on the question. Legal analysts believe that neither the conservative nor the liberal wing of the Court wanted to grant cert, though for different reasons. The four liberal justices did not want to grant cert because a desire to let the decision play out state by state until there are conflicting appeals court rulings. (Moreover, some believe these justices learned a lesson from the fallout of Roe v. Wade – that to push an extension of a right too far too fast can be socially problematic.)

The conservative wing of the court may have wanted to grant cert, but there may have been defections based on the belief that they would not have the votes to deem same-sex marriage unconstitutional if the case came to the Court. Despite all this, it is possible that some day the Court will grant cert and rule against same-sex marriage, although analysts believe that is unlikely considering the fact that so many states will have legalized same-sex marriage by that point.

Furthermore, the decisions rendered by the courts of appeal (which have been validated by the Supreme Court’s denial of cert), are legally justifiable decisions. In the 9th Circuit decision alone, three rationales were proposed, each of which could be justified on its own as a justification for the decision to allow same-sex marriage. The Court of Appeals ultimately decided the issue on the basis of the Equal Protection clause, finding that discrimination on the basis of sexual orientation required heightened scrutiny, a standard the government was not able to meet.

Judge Reinhardt, who wrote the Court’s opinion, then wrote a concurring opinion, stating that it was also possible to substantiate this decision through the Due Process Clause (also from the 14th Amendment), because the fundamental right of marriage was being taken without just cause. Finally, Judge Berzon wrote a concurring opinion in support of an Equal Protection argument on the grounds of gender discrimination as opposed to discrimination on the basis of sexual orientation. Despite the fact that this was not the court’s rationale, the argument for gender discrimination might be the strongest argument of all. Gender discrimination is well-established as a grounds for heightened scrutiny, and it is clear that same –sex couples are being discriminated against with regard to marriage simply because the laws at issue are based entirely on gender.

When we look at the week’s events from a political and religious perspective, people of faith can take solace in two things. First, when same-sex marriage is found constitutional, there is seismic social shift that creates barely a ripple for actual churches. Despite the continued outcry from religious conservatives, not much, if anything, has changed for churches in the wake of the allowance of same-sex marriage in several states. None of the rulings require any churches to perform same-sex weddings. The misconception that occurs in some circles stems from the misconception that the religious sacrament of marriage is what is changing. It is important to remember that there are two forms of marriage, not one. What has changed is the civil right of marriage, which has now been extended to two people of the same sex. This extension has no effect on the marriage ceremony that takes place in our churches.

Finally, while it may seem counterintuitive, the allowance of same-sex marriage is actually expansive to the notion of religious liberty. Much of the objection in the public square to same-sex marriage has come from religious groups, including members of the Adventist Church. Although covered with some creative window dressing, these religious groups were asking the government to ratify only their definition of marriage, to the exclusion of the definition of even other religious groups. For the government to support and establish that definition would be an unprecedented step toward establishment. This type of step could potentially have negative ramifications for religious minorities.

Sectors of the Adventist Church may agree with religious conservatives now, but what happens when those groups disagree, and the Church finds itself in the position that the LGBT community is in now? Adventist eschatological theory in essence states that religious persecution of people of faith will come not from those who are against religion, but from those who usurp religion for their own purposes and seek to impose their religious values on those who disagree. Keeping these religious arguments and rationales away from public policy allows for people of all faiths (and none at all) to continue determining their own morality according to the dictates of their own conscience without any one moral framework influencing the rest.

The Supreme Court this week did something very important, essentially by doing nothing. Not only have they solidified the effort to extend the civil marriage right to same-sex couples, they have also expanded the notion of freedom for all of us. For those of us who find ourselves as minorities of one type or another, this is a cause for celebration.

Jason Hines is an attorney and doctoral student in Religion, Politics, and Society at the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at

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