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.
Does the Constitution of the United States require recognition of same-sex marriage on a par with heterosexual marriage? Second, if no such right exists, does the Constitution’s Full Faith and Credit Clause require states that do not allow such marriages to recognize marriages legally performed in other states?
Immediately after the oral arguments, attorneys for both sides pontificated to the press that their side would surely prevail. But some onlookers seem confused: They seemed to hear the Justices argue both sides, seemingly contradicting themselves. And they seemed to hear Justices assumed to be safely on their side – whichever side that was – to be asking questions that led in the opposite direction.
What’s going on here? Before trying to deduce some general observations – and even dare a couple of predictions – let’s see what was actually said.
Justice Anthony Kennedy, who almost surely holds the tie-breaking vote, and who over the past two decades has written the court's three decisions recognizing and expanding gay rights, seemed conflicted. He was tough on gay-marriage advocates, declaring that the definition of marriage as between as man and a woman "has been with us for millennia, and it's very difficult for the court to say, oh well, we know better." Yet when lawyers’ defending the state bans on gay marriage argued that there is no "dignitary" value in marriage, Kennedy bristled. "I thought that was the whole purpose of marriage," he said. "It bestows dignity on both man and woman in a traditional marriage ... and these parties say they want to have that same ennoblement."
Justice Samuel Alito asked, "How do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex? Is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?"
Justice Stephen Breyer, considered one of the court's liberal justices, chimed in: "Suddenly you want nine people outside the ballot box to require states that don't want to do it to change ... what marriage is? Why cannot those states at least wait and see whether" doing so is harmful to marriage? Mary Bonauto, arguing on behalf of the same-sex couples, replied that times can blind society to the "humanity" of people who are different. The U.S. Constitution has repeatedly recognized and corrected for that blindness, she said, as when it recognized women as equal under the law.
On the issue of the supposedly unchanging institution of marriage, Justice Ruth Bader Ginsburg noted that until 1982, when the Supreme Court struck down a law governing a wife's position in marriage, some states still recognized men as the masters of their wives.
Chief Justice John Roberts wondered if the Court should wait for the states to act further and for societal approval to coalesce. "[I]f you prevail here, there will be no more debate…. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by the courts." Bonauto replied that waiting and seeing "is not neutral" for the tens of thousands of same-sex couples and their children who do not have the benefit of marriage.
Justice Scalia then turned to another question: whether recognizing marriage as a constitutional right for gays and lesbians would mean that ministers opposed to such unions would have to conduct gay-marriage ceremonies. Bonauto replied that it's "clear" under the First Amendment guarantee of religious freedom that a cleric cannot be forced to perform a marriage that he or she disagrees with. She could have added that, according to policy, a Seventh-day Adventist minister can marry two church members or two non-members, but not one to the other. That is religious discrimination, and it’s constitutionally protected.
A more difficult question was posed by Justice Alito, who made reference to a 1982 case where the IRS took away the tax-exempt status of Bob Jones University because the school forbade interracial dating. Alito asked Solicitor General Donald Verilli if the same rational could be used to deny tax-exempt status to a school that forbids same-sex dating. Verilli could only answer, “It’s going to be an issue.”
Justice Alito turned to a different question, asking repeatedly whether groups of more than two people would also have a constitutional right to marry. Bonauto replied that there is a big difference between a traditional marriage of two and marriage of multiple partners that would raise questions of coercion and consent and implicate state laws involving everything from inheritance to divorce.
Justice Breyer, noting that gay couples are the only group that states exclude from the right to marry, rhetorically asked why? “And the answer we get is, well, people have always done it. You know, you could have answered that one the same way [when] we talk about racial segregation." Michigan lawyer John Bursch replied that the state's interest is in procreation and binding children to their parents. "When you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences," Bursch said.
Justice Kennedy seemed to reject that argument, noting that many same-sex couples adopt children and want the respect of a marriage and its legal dual parenthood to raise those children. But Bursch stuck to his guns, insisting that allowing gay marriages would reduce the number of heterosexual marriages. Justices both liberal and conservative seemed to balk at that one. The Chief Justice then said, "I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?"
After hearing the arguments on the gay-marriage bans, the court moved on to a second question: If the bans are upheld, can states refuse to recognize marriages performed in other states where they are legal?
Lawyer Douglas Hallward-Driemeier told the justices that there is a long tradition of states' recognizing each other's marriages, even when, for instance, the age of the participants is younger than would have been permitted in the recognizing state. In a mobile society, he argued, it is untenable to have states rejecting legal marriages from elsewhere in the country. He pointed to his clients, a gay couple married in California, who adopted children and then were transferred by an employer to a state that recognizes neither the marriage nor the adoption. "The cost of that transfer was the destruction of their family relationships, all that they had relied on in building their lives together," said Hallward-Driemeier. He cited the state of Ohio's refusal to list a surviving spouse on a death certificate because the same-sex couple's marriage was performed out of state and was not recognized under Ohio law. Ohio and other non-recognition states, said Hallward-Driemierer, offer "exactly nothing" as a justification for their laws.
Tennessee Associate Solicitor General Joseph Whalen, defending the state laws, quickly found himself tangled up when Justice Breyer observed that Washington, D.C. allows federal judges to marry people but New York does not. "So if I marry two people in Washington, D.C., and they happen to move to New York," asked Breyer, "you are saying that New York doesn't have to recognize that marriage?" "Yes, your honor," replied Tennessee's Whalen. At that, Breyer ruefully replied, "I think there are a few people who are going to get nervous about this."
So, what did we see and hear? Some observations: 1. Oral arguments give clues, but that’s all. Justices use oral argument to test theories and also to send messages to the other Justices as to the strength or weakness of the argument of the moment. 2. The argument that marriage is fundamentally about procreation did not win the day. The modern approach to marriage as also being about love and companionship did. 3. Even Supreme Court Justices are not above fear mongering. Justices Scalia and Alito raised far-fetched issues of the ‘slippery slope’ from same-sex marriage to the approval of polygamy, incest, child brides and assorted other evils. 4. Counsel’s insistence that same-sex marriage will lead to fewer heterosexual marriages seemed desperate. One seemed to hear a desperate plea that society is falling apart and must be saved by the Court. That desperation would seem to reach far beyond same-sex marriage and reflect the angst of those who bemoan the loss of the traditional cultural dominance of WASPS: white Anglo-Saxon protestants, and the cultural mores that went with their dominance. Argue it as you will, the demographic and cultural trends are clear. That horse left the barn some time ago. 5. One fundamental question was never addressed: If you were asked to accommodate a religious belief that devalues you, a belief that you do not share, how much of your right to equality under the law would you – should you - be willing to lose?
Now, some prognostications. As it stands, most court-watchers see four votes to find a right to same-sex marriage (Justices Bryer, Ginsberg, Kagen, and Sotomayor), three clear votes to deny such a right (Alito, Scalia and Thomas,) the Chief Justice's perhaps leaning toward denying the right, and the all-important swing vote – Justice Kennedy - leaning toward recognizing the right.
One last prediction is on firmer ground: The Court, in the long tradition of saving its most explosive decisions to the end of the term, just before leaving town for the summer recess, will hand down its opinion on or around June 30.
Mitchell Tyner retired in 2006 as associate general counsel for the General Conference of Seventh-day Adventists.
This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/6795