Roundtable: How Will Same-Sex Marriage Impact the Adventist Church? Part 3


(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.

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.


This is a companion discussion topic for the original entry at http://spectrummagazine.org/node/6796

(Kim Green) #2

And I hope and pray that this is where the court ends up.


(Peter) #3

If the court were to surprise us and uphold the right of states to deny gay marriage:

  1. There will still be gay couples.
  2. They will still live together as though they are married.
  3. They will keep having [you know what] just like the have been.
  4. They will buy homes together.
  5. Sometimes they will parent children together.
  6. They will attend church if they want to (even if they aren’t given membership).
  7. They will sometimes find churches that welcome them.
    8, They will find more and more people supportive of their relationships.

How that satisfy those who want gay marriage prohibited on moral grounds? What “the Bible says” won’t change any of this.

And there will still be a majority of states that continue to offer gay marriage. That won’t be revoked.

Why don’t we spend our energy on something that will do far more good than condemning and debating?


(Kim Green) #4

Though I recognize what type of question you are really asking, Peter…just look at what types of articles garner the most comments with the most passion: women’s ordination and anything to do with homosexuality (not that we are obsessed with sex or anything :wink: )

But to partially answer your question- it would appear that we are more firmly “stuck” in the negative than the positive. Sad…and we call ourselves “Christians” and it isn’t apparent by our love.


(jeremy) #5

this has to be the understatement of the year so far…of course same-sex marriage is going to be legalized…the only real issue is the rights of those opposed to it…


(Elaine Nelson) #6

Because the church is fillled with Don Quixotes!


(Ron Simpson) #7

I am opposed to baptism by sprinkling so I am going to pass a law against it.
I am opposed to low rider trousers…
I am opposed to people that snore…
I am opposed to (what ever is near and dear to you and does not effect me much)…

OK; back on my horse and go shish kabob a windmill.


(jeremy) #8

if you had a religious belief that, when followed, infringed on a newly granted right to someone else, and if that infringement resulted in you being forced out of business, you would then be in the position n. american adventism is potentially facing…

our 501©3 status exempts us from taxes…but there is precedent for that status being taken away if and when a civil right of someone is infringed if we exercise a belief that was protected before the infringed civil right existed …my understanding is this will not compel us to pay back taxes, but even current taxes, at a minimal tax rate of 10%, means nad stands to lose at least $100 million from its operating budget…even if this doesn’t force it to shut down, it will certainly necessitate a reallocation of resources that has the potential to impact thousands of innocent individuals…


(Ron Simpson) #9

Are you talking about baking cakes or the church?

According to what I read on Spectrum; there was a time when Union College would not allow Colored People to sit with White People so the people of color had to sit in the back. Also; UC pushed people of color to other schools. And some how that got solved.

Are you talking about basic rights of people?
Parts of the church has made it clear that women are not equal in pay, jobs, etc.
When I first went to college; girls could not even take theology classes. fixed, Then they could not get a degree in theology. fixed Then they would not be payed, but their husband could be payed. But who would want a woman (wife) that defied the church that openly? Some how the church keeps its tax status.

What Gay Person would want to come to a church that is this “open” (out of the closet) about its feeling about Gays? There are many alternatives. “Only one way to God” Well…there are churches that treat all people well.

I know, do what Union College did and rope off the back 4 rows for ‘those people’.
It has been suggested that I go to the Unitarian church. lol (different reason)
I got brochures. Lets have a ‘gay test’ at the door and hand out Unitarian church brochures.
I do not know what to do! I just see bad options.
I think there will be a mixed message. ‘You can come but we will through eggs until you leave.’

……edited…New idea…
We have a conference.
Then we have a conference that no one walks about.
How about a third conference for Gays that no one (no one) walks about.


(le vieux) #10

Ah, but you can voice your opinion and not get demonized for it. Those opposed to same sex marriage are called all kinds of unkind names, and some have been forced to resign their jobs.


(Andrew) #11

If an organisation wants to be subsidised by the state, it is effectively being paid for, by every tax payer. Those tax payers include gay people, unmarried parents etc.

When a person pays a corporation for something, ie when ‘consideration’ is exchanged; a contract is formed.

In this case, the church accepts payment and is therefore obligated to abide by anything the paymaster deems appropriate.


(jeremy) #12

andrew, i think you may be conflating tax exemptions with government subsidies…while it is true that the supreme court has held that tax exemptions are a form of subsidy administered through the tax system (1983, “regan v. taxation with representation from washington”), the point is it is an indirect subsidy as opposed to a direct subsidy…that is, the church is not receiving payment from the public…

in reality, the public may actually be receiving more through the church’s tax exemption status than it would be if the church was taxed directly…this is because corporate tax rates generally fall below personal tax rates…in nad’s case, it’s $1 billion tithe fund is probably divvied up primarily between church workers’ salaries and pension funds…certainly the salaries are taxed at a higher tax rate than a typical corporate tax rate…even pensions are taxed, and presumably retired church workers living on pensions are taxed at a tax rate at least comparable to a corporate tax rate…

there is also the savings the public receives from reduced disease and crime where the church’s teachings are followed…if healthcare really costs america $3.8 trillion, and crime $1.7 trillion
( http://www.forbes.com/sites/danmunro/2014/02/02/annual-u-s-healthcare-spending-hits-3-8-trillion/, http://www2.davidson.edu/news/news_archives/archives99/9910_anderson.html),
it is reasonable to think that the more tax exempt adventist churches, the better…


(Ron Simpson) #13

Unless you are not a Adventist.
Unless you are in groups the church does not like.


(Ron Simpson) #14

There is/was a number of white only schools that had problems with the IRS.
Churches and bible texts had much to say about white/black mixing. (religious beliefs)
I was thinking about some Baptist school in the south, but there are many examples.

There are many “religious beliefs” all are “from Gods mouth”. The government is not in the business of saying SDA is right and LDS is wrong. The government is in the business of saying certain actions are not right. Example: excluding certain types of people.


(jeremy) #15

the point i was making to andrew is that even if you are a non-adventist, an anti-adventist, or a perceived victim of adventism, as a tax payer and tax beneficiary, you benefit when the church redistributes it’s tax-free income to workers who are taxed at a higher tax rate than the church would be taxed at…the tax system is receiving more money, which means you stand to receive more services…you are also benefiting from the reduction of crime and it’s costs, and health problems and attendant costs, which is one important difference between an amoral for-profit business which also hires workers and a moral nonprofit business like the adventist church…let’s also understand that property values are directly impacted by the type of businesses in the vicinity…homes that are constructed around a well-attended church of some kind are probably impacted differently than homes across the street from bars, strip joints, brothels and bathhouses…

the reality is that a charitable institution that receives tax exempt status in order to redistribute its income which is then taxed at a higher tax rate, is fundamentally different than an institution that receives a state subsidy in order to post a profit for shareholders, although it is true that society still benefits when a for-profit business hires workers…tax lawyers have looked into these things long enough to create the stipulations for tax exempt status that ultimately benefits society…tax exempt status requires that specific conditions are met…someone can’t just decide to run a tax exempt business on a whim…


(Elaine Nelson) #16

How will this affect Adventist schools whose students receive government scholarships paid directly to the schools? What if a gay couple wish to attend school, living off campus: will they be admitted? Can those students file discrimination charges against the school if refused admission based on their same sex marriage?


(Ron Simpson) #17

What if a gay couple wishes to attend school and live on campus?
AND
She takes theology.
AND
Covers her head with a hijab.
AND


(Elaine Nelson) #18

When Muslims become “gay couples” they would likely not apply to an SdA school.


(Ron Simpson) #19

Elaine,

I have given up on being serious. Too much head banging on walls.
I was trying to find something worse than the ways things are.
Gays in school…living on campus…taking theology…SHE is taking theology…covered heads…what could go wrong?


(Elaine Nelson) #20

Too deadly serious here: frayed tempers and animosity. So much of Adventism can be laughed at with its inconsistencies and picking out trivia ad infinitum, ad nauseum.