Roundtable: How Will Same-Sex Marriage Impact the Adventist Church? Part 1


(Spectrumbot) #1

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.

After the Court issued narrow rulings in 2013, finding that private proponents of California's constitutional ban on same-sex marriage did not have standing to represent California when the state government refused to appeal a federal judge's decision overturning the ban (Hollingsworth v. Perry), and that a portion of the federal Defense of Marriage Act that prohibited a federal tax exemption to the surviving spouse of a state-recognized same-sex marriage was unconstitutional (United States v. Windsor), the Court now has the opportunity to decide whether same-sex marriage will be legalized.

After hearing the arguments, it is hard to tell how the Court is going to rule in Obergefell v. Hodges, and I believe that the implications of the decision may extend beyond the four states involved in the case, which included Kentucky, Michigan, Ohio, and Tennessee.

Although many Americans have voted for bans against same-sex marriage because of moral qualms, religious concerns, or simply because of tradition, arguments that play to public opinion do not typically play well in the courtroom.

It has been very difficult for opponents of same-sex marriage to articulate arguments that promote marriage in such a way that it honors love and commitment between spouses but at the same time excludes same-sex couples. If anything, same-sex couples who want to be married would also embrace the values of love and commitment which form the basis of most marriages. Arguments that same-sex couples should not be married because of alleged increased infidelity or promiscuity have fallen flat.

The only argument that has gained any traction is the idea that same-sex couples are unable to biologically have their own children, and that is what the attorney arguing for the state of Michigan relied upon. John Bursch, a former solicitor general of Michigan, is a brilliant 42-year-old attorney who has argued before the Court eight times since 2011, which is 6% of all the cases the Court heard during that period, on topics ranging from what phone companies can charge competing networks to defending Michigan's felony statute for the non-payment of child support.

Yet Bursch struggled to defend Michigan's ban on same-sex marriage. He argued that the voters should have "fundamental liberty" in deciding what marriage means but ignored Justice Kagan's argument that there is liberty in allowing people to choose who they want to marry. He argued that marriage is a practical arrangement designed to bond children to their biological mothers and fathers, and is not "all about emotion and commitment."

Justice Kagan raised the question of whether marriage should be denied to people who don't want children, and Bursch responded, "But, Justice Kagan, even people who come into a marriage thinking they don't want to have children often end up with children."

Bursch followed this train of thought to an absurd degree, goaded on by Justice Ginsburg who asked whether a 70-year-old couple should be allowed to marry. Bursch's answer was cringeworthy. "Well, a 70-year-old man, obviously, is still capable of having children and you'd like to keep that in marriage."

Although he may not have had to raise the issue, Bursch did not address the point that Justices Scalia, Alito, and anticipated swing-vote Kennedy had raised involving the notion that marriage has not changed "for millenia" and that same-sex marriage is a relatively new institution, with the first country to legalize it being the Netherlands in 2001.

The legal standard for addressing same-sex marriage has not yet been firmly established, with proponents of legalization arguing that the compelling state interest test needs to apply as it denies a fundamental right, and opponents arguing that a rational basis test applies as the state has broad discretion to determine who can marry.

In the wake of the arguments on Question 1, Question 2, regarding same-sex marriage across state lines was denouement. Question 2 is only relevant if the Justices, more likely on the strength of the many briefs that have been filed rather than the short oral argument, decide that it is legal for states to decide to ban same-sex marriage. Douglas Hallward-Driemeir, appearing for the petitioners, argued that marriage needs to be portable in a mobile society. Counsel for the state of Tennessee, Joseph Whalen, argued that the "full faith and credit" Clause of Article IV does not apply to state statutes, but rather judicial decisions. Justice Sotomayor asked whether marriage certificates should carry weight from state-to-state like birth certificates.

One of the issues that has not been addressed to the extent it perhaps should be, is what happens if the Supreme Court decides that each state can decide whether to allow for same-sex marriage.

In Hollingsworth v. Perry, the Court decided based on standing, and did not reach the merits of whether the California constitution amendment (Ballot Proposition 8, passed in 2008) banning same-sex marriage was in fact legal under the United States Constitution. The California amendment had been declared unconstitutional by a federal judge and even the California Supreme Court could not overturn a provision of the California constitution. Therefore, if the Supreme Court reverts the issue to the states, would the various federal decisions that legalized same-sex marriage, not only in California, but in many other states likewise disappear? How would this affect existing same-sex marriages in these states?

It is difficult at this stage to predict which way the Court is going to rule, although the votes of Justices Ginsburg and Kagan are predictable, with each having performed same-sex weddings. Justice Scalia and Justice Alito will likely find that the long history of marriage being defined in society as being between a man and a woman justifies moving slowly, if at all, toward affirming same-sex marriage, and that the states should set the pace, not the Court. But this is likely to be a tight decision, with a 5-4 vote riding on Justice Kennedy whose questions imply a take-it-slow approach.

The concept of group rights to exclude versus an individual right to marry carries forward into the various wedding-related services that have been in dispute recently. While same-sex proponents argue that others should not be able to decide for them who to marry, they may also want to carry this logic forward and provide accommodation for those who, not due to animus, but rather due to sincerely-held religious beliefs, do not want to participate in providing services related to same-sex weddings. The rights of individuals and groups intersect at these times, and the diverse beliefs of all involved can be protected if both sides are willing to find solutions.

In the wake of the current arguments about Religious Freedom Restoration Acts, which are primarily a state function, much like marriage would be if the Court decides that one size does not fit all states, then it is likely that RFRAs will be the tool used to protect those who, for religious reasons, do not wish to participate in same-sex marriage. If the Court decides that same-sex marriage is a federally-protected right across the country, we can expect that Congress will look for a national resolution, which may be a retread of RFRA but geared toward addressing issues of marriage and individual rights of conscience.

With all the pitfalls that can be conjured up in answer to the two questions that were posed on Tuesday, the Court may find a way to avoid taking any action, leaving everything as it is right now, with the Circuit Courts of Appeal being able to decide whether or not same-sex marriage is constitutional.

Michael Peabody, Esq. is the editor of ReligiousLiberty.tv.


This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/6794

(Carolyn Parsons) #2

What is the solution to protecting LGBT people from discrimination in accommodation and services and then turning around and dismantling these protections because someone has a vague “sincerely held religious belief”.

The position that the “sincerely held religious belief” is not about animus but a sincere position falls flat wen these same businesses serve others who violate other beliefs that religious people might have. They seem to choose to exercise these beliefs only when they are serving LGBT customers. That is animus.


(David Read) #3

The legal issue before the court is whether the equal protection clause of the Fourteenth Amendment somehow overturns the, until very recently, temporally and geographically universal definition of marriage as involving a man and a woman, not two men, and not two women. The obvious answer is “NO, of course not!” The 13th Amendment, which bans slavery, the 14th Amendment, guaranteeing equal protection of the laws, and the 15th amendment, which guarantees the right to vote regardless of race, were all passed in the wake of the Civil War and were intended to protect blacks from depredations under color of law or legislation by unhappy white majorities in the south. At that time, states that had thought enough about same-sex relations to expend any legislative energy on the topic had made sodomy a criminal offense. The idea that the 1860s drafters of the 14th amendment intended it to overturn the universal and eternal definition of marriage, and institutionalize sodomite marriage, is obviously ludicrous.

Using the 14th Amendment to re-define marriage is lawlessness, plain and simple. It is nothing but robed tyrants giving themselves the powers of philosopher kings. When I was in law school, a conservative constitutional law professor, Lino Graglia, who objected to the whole notion of judicial review from Marbury v. Madison on down, used to provocatively ask, “How is the Supreme Court different from Stalin?” At the time, I thought he was being overly dramatic, but if the Supreme Court can lawlessly arrogate to itself the power to re-define marriage, I would have to belatedly answer, “they aren’t.”


(SurprisedByGrace) #4

“While same-sex proponents argue that others should not be able to decide for them who to marry, they may also want to carry this logic forward and provide accommodation for those who, not due to animus, but rather due to sincerely-held religious beliefs, do not want to participate in providing services related to same-sex weddings. The rights of individuals and groups intersect at these times, and the diverse beliefs of all involved can be protected if both sides are willing to find solutions.”

I am thinking the so-called “Utah Compromise” my provide tools to which solutions to these clash of rights may be found.


(Jared Wright) #5

Nicholas Miller addressed something similar in the 4th part of this series, saying,

A couple of the swing-votes revealed that they still have questions over the issue. 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 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?”

Read the rest of Miller’s comments here: http://spectrummagazine.org/article/2015/05/06/roundtable-how-will-same-sex-marriage-impact-adventist-church-part-4


(Tim Teichman) #6

From the government’s point of view marriage is just a legal contract. That’s it.

Allowing for same-sex marriage will not force anyone to do anything new they don’t want to do.

  • For example, there is an irrational fear that churches will somehow have to perform gay marriages. Are they forced to perform straight marriages today? Didn’t think so.
  • Another is that somehow those in the service industry will be forced to serve gay people. This is laughable. They’re already serving gay people. They just don’t know it. And they’re clueless enough they probably won’t know it later, either.

(Rheticus) #7

Of the 1,231 societies listed in the 1980 Ethnographic Atlas, 186 were found to be monogamous; 453 had occasional polygyny; 588 had more frequent polygyny; and 4 had polyandry.[1] Polyandry is less rare than this figure which listed only those examples found in the Himalayan mountains (28 societies). More recent studies have found more than 50 other societies practicing polyandry.[2]

And, of course, the State of Utah had to abandon its support for polygamy before being allowed into the United States.

So your ‘universal definition’ is decidedly not universal at all.

You are also omitting http://en.wikipedia.org/wiki/Amazons and http://en.wikipedia.org/wiki/LGBT_themes_in_mythology and http://en.wikipedia.org/wiki/Third_gender


(Rheticus) #8

If you want to participate in civilized conversation, why don’t you start using inoffensive, or at least correct, terms rather than airing your ignorance and uncouthness in public

A male and a female can engage in sodomy, whether or not they are married.
Two males can be happily married without engaging in sodomy.
Two penis-less females can’t engage in sodomy


(Elaine Nelson) #9

-This is similar to the Virginia vs. Loving of l967 overturning a law against interracial marriage (when was that original law made?). How could it possibly harm same-racial marriages? It doesn’t and since then we have thousands of interracial marriages raising children with no harm to anyone.

Why is it not animosity toward same sex couples for heterosexual couples to want to deny the benefits of marriage when they have failed to show any damage at all to their own marriages or society? How do the mixed sex petitioners have standing as they are unable to prove damage to heterosexual marriages/


(Rheticus) #10

Ignorance like yours deserves to be called out - The Supreme Court doesn’t control the Army or have a KGB


(David Read) #11

Bevin, obviously I am aware of the practice of polygamy. But polygamy, whether one man and two or more women, or (the extremely rare) one woman and two or more men, always involves a man and woman, i.e., at least one of each, which is what I said: “temporally and geographically universal definition of marriage as involving a man and a woman,”


(David Read) #12

Obviously, you have not been keeping up with how paramilitarized not only the U.S. Marshal’s Service has become, but even seemingly peaceful agencies like the National Oceanic and Atmospheric Administration, which now has its own SWAT team. https://sayanythingblog.com/entry/in-the-federal-government-even-the-weather-forecasters-have-swat-teams/


(Bill Garber) #13

So what is at stake is whether any two people can use the process of marriage as an inexpensive short cut to establishing a legal contract between themselves that is the equivalent of marriage.

How can this possibly be a threat to anyone in terms of the rule of law?

How difficult can it be for religious persons to self-declare their marriage to be described as a Christian marriage … of course then they would have to contest with other Christian expressions of religion that already marry without regard to gender. Christians that reject marriage without regard to gender as non-biblical, ought to take it up with Christians who approve of such marriages, rather than seeking for the state or federal courts to enforce their interpretation of the bible and in turn the word, ‘marriage.’

In an interesting way, if the courts were to deny marriage without regard to gender, they would in effect be supporting the establishment of a very specific religious expression, in the face of already contesting religious views of marriage without regard to gender.

This would be a First Amendment, rather than a 14Th Amendment matter, would it not, David?

As for changes in the meaning of words, since when do the courts every get involved in that? The courts have not been called to preserve the meaning of the two terms, ‘conservative’ and ‘liberal’ which have fully and totally reversed since the mid-19th Century.

I’m not trained in the law and look forward, David, to your update regarding the Constitutional validation for marriage continuing to be defined religiously, or not.


(jeremy) #14

i tend to think gay marriage should be legalized…opposition arises purely from religious considerations which cannot justly be imposed on those who don’t share them in a secular democracy…


(Ian Cheeseman) #15

Jeremy I agree with your belief. Same-sex marriage has been legal in Canada for some years now, and in some other countries for longer. In Canada I don’t recall any problems for heterosexual couples due to same-sex marriages being legalised.


(jeremy) #16

i don’t recall any problems, either…my string quartet has been hired for quite a few gay weddings over the years, and the wedding parties have always been very upfront with what i’d be contracting into if i sold my services to them…in fact the gay couples who’ve contacted me have explicitly said they wouldn’t be offended if i refused to manage the music for their wedding…

i’m not sure why there’s such belligerence and fuss in the states…


#18

Wikipedia is a poor choice of reference material. You may want to find a more reliable source of information if you want your case to be taken more seriously.


(Rheticus) #19

Sadly English is a somewhat ambiguous language. That is why we have phrases like “at least one”, although I have worked enough with patent lawyers to know that they would argue that “involves a male” and “involves at least one male” are equivalent. But we aren’t using legal jargon here.

So now we need to distinguish between the social concepts of
1 - having a wife
2 - having a servant
3 - having a bonded servant
4 - having an apprentice
5 - having a slave

Throughout a lot of the world and a lot of history the legal status of a wife and these a member of these other categories is not all that different.

What precisely distinguishes the role of “wife” from the role of “servant”?


(Rheticus) #20

If you look at the Wikipedia articles, there are extensive references within them to appropriately cited peer reviewed source materials.

The Wikipedia thus acts as a set of links to some of the best available material.


(Peter) #21

Amen, Jeremy!

David et al - since you fervently believe the Bible that commands Sabbath observance also prohibits same-sex marriage, I’m assuming you’ll push legislation for that just like you support legislation to deny gay marriage.

Don’t let your inconsistency show.