Perspective: A Do Nothing Victory

(system) #1

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 to 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

This is a companion discussion topic for the original entry at

(Allen Shepherd) #2

I agree that there is little threat to churches to be forced to perform marriages that they do not support. I have never felt that they would be forced by law to do so. There might be a societal force to do so, that is cultural pressure might be applied to do it. But the law is clear.

I think the problem is that traditional marriage is no longer held up as the gold standard that it is. The change of definition will allow for plural marriage, bigamy, polygamy, polyandry and any other coupling of men and women. This is not a triumph for children, as the nuclear family has proven to be the best for them. But of course they had no say in this discussion. Nor for women. The most common from of alternate marriage in history is polygamy, not historically a win for women.

But that is what we have come to so, there is not much else to do.

(Carrol Grady`) #3

I appreciate your legal understanding of this issue, Jason, and that you see it as a win for religious liberty. I will never understand why so many of our church RL leaders turned away from our traditional stand on supporting everyone’s right to follow their own conscience when gay rights became an issue.

(Elaine Nelson) #4

A very well reasoned explanation. There should be no disgruntled individuals as nothing effects their current or future marriages in any way. It simply is their wish to limit marriage to their personal choice.

Many Christians, including Adventists, disapprove of both smoking and drinking. But that in no way changes their beliefs or habits while both are still legal. Legalizing same sex marriage is no different than the repeal of prohibition: it allowed liquor to be sold and used but it was regulated by the states.

(Sherlock1) #5

Certainly not a victory by any means. More of an act of judicial politics to prevent addressing a case of humanity going amok. It is truly evident that the prophecies of Revelation are quickly opening as we see the spiritual controls of Satan being released. The supreme court that turns away the responsibility of upholding the laws in our constitution is a strong demonstration of political maneuvering and this is only one item that is added to the downward spiral of the United States of America our current president and Senate has been leading us in. Interesting times we are in!

(Rohan Charlton) #6

Absolutely interesting times. Things are accelerating, changing.

(Thomas J Zwemer) #7

less than two generations ago, Sodomy was a crime in most states. Then AIDS, Promiscuity became the villain. Understanding and empathy saw same sex marriage is a public health issue as much as a civil right. I support the civil marriage primarily because it carries with it property rights not available without explicit contractual agreements on real property, etc. The church has the right to define marriage in a much narrower frame. it is a Gordian knot for theology buffs. Tom Z

(Elaine Nelson) #8

Tradition should not be the gold standard but the U.S. Constitution which has been the reasoning used by all the judges refusing to uphold bans against same sex marriages: It denies equal rights which is embedded in our constitution. That cannot be contested.

(David Thomas) #9

This discussion is quite interesting and I appreciate the opinions of someone versed in the law. I also understand the matter of equal rights. What will now become interesting is to see just how far this new definition of marriage takes us. I was thinking that, since marriage is now a civil right and a way of obtaining civil rights, perhaps it could become a valuable tool in helping undocumented persons in the US to get legal status. Since there is no non-discriminatory way of limiting marriage to two people, perhaps undocumented people could one day band together in groups of 50 or 100 and “marry” a legal citizen. With no-fault divorce, it would not be a very long journey to full legal standing. Or, perhaps a business owner could one day arrange to “marry” his/her customers, especially if the goods for sale are high value. With some careful attention to pre-nups, this “marriage” would allow for the transfer of assets without having to pay taxes. There need need be no presumed right of co-habitation, and the no-fault system could provide an exit after a short while.

The other side of this discussion also remains to be seen, whether or not religious institutions - schools in particular - will be able to remain in the public square if they refuse to adopt open hiring practices. I suspect there is going to come a real struggle over that item and, in all probability, religious schools will lose the right to write student loans, which will effectively put them out of business. And that will transpire without the actions against them being perceived as being discriminatory. Toleration will not be extended to those deemed to be intolerant. We will end up with a sort of secular sharia law of sorts, a situation where you comply, or you are gone from the public square, and that in a society that claims to value plurality of thought.

Lastly, this discussion proves that the law - the Supreme Court in particular - is not unbiased. It is, rather, quite inclined to support the opinions and desires of those who can mount the most political or societal pressure on it. It provides little real or enduring security to those who choose to dissent. And it certainly does not seem to protect any long-established idea that is thought by citizens to be constitutional. Human reasoning is an amazing capacity. It can find justification for almost any action if we work at it long enough.

(Elaine Nelson) #10

You DO know that there are laws against bigamy as well as polygamy?

Ridiculous projections are the sign of being unable to logically consider a subject. The courts SHOULD not be swayed by either tradition or political changes. Their job is to interpret the U.S. Constitution only. They have ruled correctly in this instance, and there will soon be sufficient states to bring it to the Supremes.

(David Thomas) #11

ageis7, I think you missed my point. I was not advocating for all those things. I was making the point that, now that we have opened the doors on the definition of marriage, where are we going to draw the line without it being discriminatory? At this point we are left with only one thing - consent. If adults consent, there are no boundaries that can be set that are not discriminatory. The laws against bigamy and polygamy cannot hold for they discriminate against those who want to be bigamous or polygamous. And, I agree the courts should not be swayed by tradition or political changes, but that is just not so. They always follow political pressure in the end.

(Elaine Nelson) #12

No, I understood your point which projected bigamy and polygamy that could result from same sex marriage legalization.

There have already been, prior to same sex marriage, many marrying to obtain citizenship. Stating that there is no-non discriminatory way of limiting marriage to two people is impossible; same sex marriage still applies ONLY to two individuals. Such projections of multiple partners has absolutely no basis in the ruling. Please explain under what conditions that bigamous or polygamous marriage could possibly become legal.

(Elaine Nelson) #13

Your byline would more properly be named “Cassandra” or “Chicken Little.”

(David Thomas) #14

Simple. It is discriminatory to limit marriage to two people.

(Elaine Nelson) #15

Try filing objection to same sex marriage based on such grounds. You have absolutely no standing