On April 28, 2015, the Supreme Court heard arguments on whether states can ban same-sex marriages, and if so, whether states that ban same-sex marriages must recognize same-sex marriages from states that perform them in the case Obergefell v. Hodges. The Seventh-day Adventist Church filed an amicus brief on March 6 with a law firm that specializes in free exercise of religion issues from a conservative Christian perspective: Brief of the General Conference of Seventh-Day Adventists and the Becket Fund for Religious Liberty as Amici Curiae in Support of Neither Party.
Todd McFarland, Associate General Counsel for the General Conference, who helped draft the brief, explained in the Adventist Review, the brief does not support either party litigating the case before the Court because the case does not present a religious or religious liberty question directly. But the brief presents the Adventist Church as a “conscientious objector” to same-sex marriage whose rights must be safeguarded, should the Court find a constitutional right to same-sex marriage. The Church seems to think that the Court will rule in favor of marriage equality, so the brief presumes a post-decision landscape, and discusses the rights of conservative religious groups against that backdrop.
In this edition of the Spectrum Roundtable, four Adventist Religious Liberties thought leaders discuss the implications of Obergefell v. Hodges. -Ed.
Religion came up a lot more than I expected – In a post about this case that I wrote for Ecclesio.com, I proposed that while same-sex marriage has become a religious liberty issue because of certain evangelical sects, the Court would not be focusing on religion as an important part of this case. Leave it to Justice Scalia to bring up what was, in my opinion, a totally irrelevant line of questioning that put religion front and center. Scalia raised the issue that pastors are agents of the state with regard to marriage. He opined that he could not see a framework where pastors who disagreed with same-sex unions could refuse to perform those ceremonies if the Court established a constitutional right to same-sex marriage. I think the lawyer representing the same-sex couples was so floored by the question that she could not find the simple answer – that ministers can refuse to marry heterosexual couples despite the fact that currently heterosexual couples have a constitutional right to marriage. Thank God for Justice Kagan who saved us from that argument going any further. Justice Breyer eventually smirked that the framework that Justice Scalia was looking for was the free exercise clause. Chief Justice Roberts raised religious questions with Donald Verrilli, asking about what concerns religious institutions like schools would have under a new framework. Verrilli didn’t take the bait, opining that states will have to work out those frameworks after the question is decided, essentially saying that whether other religious schools and institutions have issues is not germane to the question in this argument.
The Struggle, Part I – Mary Bonauto, Director, Gay and Lesbian Advocates and Defenders, really struggled with first line of questioning regarding the definition of marriage. Justices Roberts and Kennedy seemed to really want to know how the Court could come to change a definition of marriage that has been in place for millennia. I don’t know that Bonauto did a good job in addressing their concerns. That’s a problem if we find that this question is very important to Justice Kennedy, who is going to be the swing vote on this case (as always). There is an answer to that question, I just don’t know if the answer would satisfy anyone. There has been a changing definition of marriage throughout these same millennia, as more people whether based on class, gender, or race have gotten a greater say in the institution of marriage. So it’s not like changing marriage is something that has been an anathema to human society, or America in particular. In some cases (like race), the change was to something that many thought was just as fundamental to institution of marriage as the requirement of one man-one woman. Bonauto did eventually get around to a good formulation of the response when she said that “this is the way we’ve always done it” cannot be a sufficient answer to something that is unconstitutional.
Been here before – I am not always a fan of Donald Verrilli, U.S. Solicitor General, but of the five lawyers who argued the case, you could tell he was the one who had been here before. The government made a pure equal protection 14th Amendment argument (as opposed to arguing issues pertaining to the fundamental right of marriage) and made a three pronged argument. First, allowing the states to allow same-sex marriage piecemeal would be saying that the second class status of gay couples is in line with the principles of the constitution. Second, it seems likely that the result of a ruling against same-sex marriage would be akin to de jure segregation (segregation by law). Third, effect of this ruling will have real economic and social costs for couples.
The Struggle Part II – I thought John Bursch, the attorney supporting the same-sex marriage bans, really struggled in oral argument. Justice Sotomayor criticized from the beginning when he attempted to say that this case was about whether voters or courts should decide what marriage is. Justice Kagan went after him when he attempted to argue that the same-sex marriage bans were not enacted to make same-sex couples inferior. Justice Ginsburg got on him when he attempted to argue that the policy goal of marriage was to bond children with their biological mothers and fathers. The problem with the argument is that it would seem that the state would want marriage to also bond same-sex couples to the children they parent, which in many cases are biological to at least one member of the couple. The argument, as many justices noticed, seems to cut against itself.
A Bad Analogy – To top things off, Bursch made a really bad analogy to abortion and I was surprised that none of the justices attacked it. Bursch argued that government treatment of same-sex marriage should be like abortion, where the government allows the private behavior but does not support or condone it through government funding. He argued that the government should stay out of people’s homes on marriage like it does with abortion. That doesn’t make any sense, largely because Bursch is arguing for a system that would be in some couple’s homes with regard to marriage, but not in others. With abortion, the government has stayed out of the issue of whether you can have one entirely.
A Tough Row to Hoe – Douglas Hallward-Driemeier the lawyer for the same-sex couples who argued the second question, had an uphill battle. The presupposition of the second question is that the Court has already ruled that same-sex marriage is not protected by the Constitution. Alito noted that many of his arguments sounded like the arguments on the first question. The judges then peppered him with examples like whether a state had to honor a polygamous marriage from another country or the marriage between an adult and a minor if two states differed on the age of consent. Driemeier did an OK job trying to hold it down, but what surprised me most was that he seemed to bury the lede. Eventually it came out that the states at issue (TN, MI, and KY) had all honored marriages from other states that could not be conducted within their borders, and that the last time they had rejected a marriage from another state was 45 years ago.
The Struggle Part III – Joseph Whalen, Assoc. TN Solicitor General who argued for the state in support of not honoring same-sex marriages from other states, struggled with the obvious problem he was going to have – the Full Faith and Credit Clause of the Constitution. Even Scalia, who I think will be on the states’ side on the first question, pressed Whalen on this question and Whalen did not handle it well in my opinion. Whalen’s argument was that allowing same-sex marriages to be honored in states where same-sex marriage is not allowed would create a burden to the state’s ability to self-govern. In addressing full faith and credit, he argued that marriage stems from the law, and is not a decree. Justice Sotomayor disagreed, and Ginsburg noted the irony that while a marriage would not be binding in these states a divorce would be under the system Whalen advocated.
I am usually loath to predict what the Court will do. (However you can read this if you want to see a more solid prediction.) The Court’s decision on the Affordable Care Act is proof enough that the way an oral argument looks is not always a predictor of how the decision will come out. However, I think there is a good case for the allowance of same-sex marriage. At the end of the day, marriage is a civil institution with societal benefits and therefore must be conducted in conjunction with the principles of the Constitution. Anyone would be hard pressed to convincingly argue that this social institution is not being withheld on the basis of sex at the least and sexual orientation at the most. Those who argued against it didn’t seem to have any arguments that addressed this particular formulation of the issue, and the arguments they did raise did not seem to address the heart of their own case – that the reasons for marriage that apply to heterosexual couples can also apply to same-sex couples and those families, like those with a mother and father deserve to be respected as well.
Jason Hines is an attorney with a doctorate in Religion, Politics, and Society from the J.M. Dawson Institute of Church-State Studies at Baylor University. He blogs about religious liberty and other issues at www.TheHinesite.Blogspot.com.