Gay Marriage and the Supreme Court: What’s Really at Stake

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Gay Marriage and the Supreme Court: What’s Really at Stake

If I were a Supreme Court justice who had to decide on gay marriage, and all I could rely on were the oral arguments made to the Court last week, I would almost certainly vote in favor. This is bad news for supporters of traditional marriage.

I have been a vocal supporter and advocate for the traditional position over the last decade. But the arguments made this week for traditional marriage seemed self-defeating and contradictory.

Before I detail the shortcomings of these arguments, let me mention a couple of glimmers of hope for traditional marriage. First, the Court is not limited to the facts and arguments made at oral argument. The main parties filed hundreds of pages of briefs. In addition, various outside parties have filed a record 148 friend-of-the-court briefs, with 58 supporting the traditional position. Surely amidst this pile of paper are some careful, thoughtful, and evidence-based arguments about the importance of a mother and a father to the nurture and development of children, as well as the importance of state policies in encouraging and protecting those relationships.

Second, a couple of the swing-vote justices revealed that they still have questions on gay marriage. Justice Kennedy is generally understood to be the main swing vote on the issue. He has voted for gay rights in the past, but his reasoning has suggested that his support might not extend to marriage.

His questions revealed some of this uncertainty. He pointed to the short period of time gay marriage has been seriously considered: “10 years is, I don’t even know how to count the decimals when we talk about millennia. This [traditional] definition has been with us for millennia. And it—it’s very difficult for the Court to say, oh, well, we—we know better.”

More surprisingly, Justice Breyer—generally considered a firm pro-gay vote—voiced a similar question: “[Traditional marriage] has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don’t want to do it to change … what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?”

[ More on this topic: 4 Questions for the Supporters of Same-Sex Marriage ]

Now, both of these justices also asked hard and pointed questions of the traditional side, so these questions do not tip their hands as to the direction they are leaning. But they do suggest that one or two centrist minds on the Court are not entirely made up and that the result is not a foregone conclusion.

A Weak Argument for Traditional Marriage

But I am quite pessimistic about that eventual result. And it has to do in good part with the weak showing in the oral argument. The counsel for the state of Michigan, who was defending the state’s traditional marriage statute, rested his entire argument on the view that gay marriage is bad for children.

Now, this is not a poor argument in itself, as many studies show that, for optimum development, children do better with the influence of both a mother and a father. But he did not cite these studies or even really make this argument. Rather, he argued that the acceptance of gay marriage will, in the popular mind, disconnect marriage from procreation and child-raising, thus leading to the birth and rearing of more children outside of marriage.

Now, this claim may or may not be true. There is insufficient data in the U.S., as gay marriage is so new, to prove it one way or the other. But the simple fact is that this philosophical shift from family-centered to adult-centered marriage has already largely occurred, prior to and outside of gay marriage. This adult-satisfaction-centered marriage is a result and symptom, and a possible partial cause, of the sexual revolution of the 60s and 70s. At that time, the rise of birth control and the spread of a self-centered hedonism took the public’s focus off the health of the family unit and transferred it to the satisfaction and actualization of adults.

To blame the gay community for this fundamental shift in outlook is myopic and ahistorical; it is a symptom rather than a cause of this change. Indeed, the gay community’s attempt to enter into long-term marriage relationships could be seen as mitigating against this self-focused, individualistic construct. (Indeed, that is why marriage itself is controversial within the gay community; some vocal factions oppose it, and many gay persons do not marry for these reasons.)

But those gay persons who do want to enter into marriage can plausibly argue that such a step strengthens the bonds and duration of their relationships, and that this is actually good for kids. The fact is, as the court noted, there are hundreds of thousands of children being raised by gay couples. Their family bonds would be strengthened and made more enduring by gay marriage, and this would actually achieve the goals that Michigan is concerned about in regard to strengthening families for children.

The argument that this practical support of children is outweighed by a purported, but yet unseen, “philosophical shift” in the public mind regarding marriage and procreation seems a thin reed indeed for the Court to rest on in denying gays the right to marry.

A Better Argument for Traditional Marriage

So why do I think that the Court should protect and preserve the traditional definition of marriage? Well, I too agree that it is about the children and preserving an optimum environment for their upbringing. There is extensive support for the notion that children do much, much better with the care and attention of both a mother and a father.

A number of very recent studies, as well as older studies, have shown the importance to child-rearing of both genders. Yes, of course, we have many single-parent homes, but in these instances society generally recognizes that there is a lack that needs to be provided for. Big brother programs, men at Boy Scouts and at church, uncles and grandfathers—all are enlisted to play the role of the missing father (and 80 percent of the time, it is the father that is missing.)

But once gay marriage is recognized, there will be a legal presumption, and increasingly a popular assumption, that these are fully adequate child-rearing environments. Society will assume that little boys can grow into well-rounded men without the benefit of masculine influence; that little girls can become mature women without feminine nurture and guidance.

This is an unsafe and even foolish assumption that goes against the common experiences of those raised by a mother and a father—and who cannot imagine choosing between them; or those raised by single parents—and who feel very deeply the lack of the “other” parent in their lives. Increasingly, children raised by gay parents are expressing their unhappiness at the lack of, usually, a father figure. Amicus briefs were even filed at the Supreme Court by such persons.

There is a reason that the Fifth Commandment not only calls for honor from child to parents, but also specifies mother and father. In a patriarchal age where fathers had supreme command, it is remarkable—and a point for Christian feminism—that the commandment includes the mother as deserving equal honor.

But there is also a significant point for heterosexual marriage here. The duty of the child to honor assumes a corresponding right of the child to have the nurture and protection of the complementary duo of mother and father. That right cannot always be realized in a fallen and sinful world, and one must fill the gaps as best as one can; but neither should that right be extinguished or disregarded as a matter of policy simply because of the subjective desires of those who cannot biologically produce children.

Now, I do not cite the Fifth Commandment as authority for the proposition that gay marriage should be rejected. That would be an inappropriate biblical argument for a matter of public policy. But I am noting that our most ancient religious wisdom supports our historical, common-sense, intuitive, and empirical observations that men and woman are both crucial to the development and well-being of children.

The Deeper Issue at Stake: Religious Liberty

I’ll conclude with one thought about the risks and dangers faced by the church should gay marriage be declared a national right. Justice Alito raised with the lawyer for the Justice Department the Bob Jones case, where the Supreme Court had stripped the tax-exempt status of a religious college. “So would the same apply,” Alito asked, “to a university or college if it opposed same-sex marriage?”

The response by Donald Verrilli, Solicitor General for the United States, was telling: “It’s certainly going to be an issue. I—I don’t deny that . . . Justice Alito. It is—It is going to be an issue.”

An issue, indeed. The religious community has been alerted: religious institutions, at least colleges and universities, and very likely hospitals and health-care institutions, will be very much on the government’s radar in enforcing this newly found right, should the Court grant it. Standards relating to sexual behavior in hiring, employment, admissions, student and faculty behavior, and even classroom teaching would all come under close scrutiny and, very likely, eventual challenge. Institutions that stand firm would risk losing their tax-exempt status. In many instances, this would simply close their doors.

In sixteenth-century England, the Protestant Reformation was announced and implemented by a “stripping of the altars,” a practice whereby state churches had Catholic vestments and icons removed from their altars. We are coming to the point where a new, secular “stripping of the altars” is being threatened: one that does not remove vestments and icons but that strips institutions of either their core Christian identity or their tax-exempt status.

This Hobson’s choice should be a sobering thought, even for those who support gay marriage. Rather than “pluralism” and “tolerance”—which is what we were told the gay rights movement is about—there is much more “uniformity” and “intolerance” than in the system it seeks to replace. No responsible Christian thinker or organization that I know of has called for a loss of tax-exempt status for gay-friendly churches, schools, or organizations.

The Christian community has expressed a general sense of moral disagreement with gay groups and institutions. But that community has also largely understood that in a pluralistic country people have the right to hold and express those morally contrary views. Apparently, in our larger society, that principled tolerance is no longer seen as important or true.

[ More on this topic: Religious Freedom: The New Bigotry? ]

What is at stake in this decision is more than gay marriage in particular, or gay rights generally; rather, it is also the fundamental right of moral disagreement with whatever conventional wisdom or wave of political correctness holds the political high ground. Today that ground is held by gay rights and, apparently, gay marriage. But tomorrow, who knows? Before we discard a system of principled, pluralistic tolerance, we should consider carefully what beasts and dragons might lie around the next corner, waiting to enforce their own intolerance.

A version of this article was previously published as part of a roundtable discussion at the Spectrum website

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Nicholas Miller, J.D., Ph.D., is an attorney and director of the Lake Union Public Affairs and Religious Liberty Department, as well as professor of church history at the Adventist Theological Seminary at Andrews University. Dr. Miller has argued many church/state cases in state and federal courts, including the U.S. Supreme Court.