Oral arguments were heard today by the U.S. Supreme Court. Both sides presented their cases; decision to be rendered in June.

Introduction

The Supreme Court took on gay marriage cases since there is disagreement between Circuit Court decisions. The 6th Circuit and Puerto Rico courts have ruled to uphold traditional marriage, while other circuit courts have struck down laws and constitutional amendments passed by voters.

The issue of gay marriage has been hotly debated in American culture the last several years. Those who wish to redefine marriage have framed it as a civil rights issue, using the 14th Amendment as their rationale. Those who wish to retain civil marriage between one man and one woman have used natural law arguments and recently state’s rights arguments to defend their position.

Both sides have sometimes used sharp rhetoric, distorting the other position as a clash of worldviews obscures dialogue on the subject. Both sides often make valid points, which are sometimes ignored by the other side. The pro-gay-marriage side insists on using its own overly broad language, such as antigay to describe anyone who opposes gay marriage.

Today’s Oral Arguments Before the U.S. Supreme Court

Today’s arguments were contentious on the first issue: whether the 14th Amendment requires all states to issue same-sex marriage licenses. According to Emily Belz, reporting for WORLD magazine, today the high court essentially asked: What is the purpose of marriage? Is it based on love, or is it based on a potential future family?

John Bursch, the lawyer arguing for the states said, “The state has no interest in love and emotion. Justice Kagan and I have a close friendship but the state has no interest in regulating that.”

Leading up to the arguments, the court repeatedly declined appeals of circuit court rulings that struck down state marriage laws. Today the justices appeared divided, with Anthony Kennedy appearing to hold the swing vote. Tough questions were asked of lawyers representing both sides. The full article is balanced and thoughtful.

According to Belz, legal reasoning and discussion of court precedents were minimal in today’s arguments.  Bigger questions were asked: How would redefining marriage affect children?

Chief Justice John Roberts challenged the plaintiff’s attorney who started talking about homosexuals being excluded from the marriage institution as a class with “You’re not seeking to join the institution. You’re seeking to change what the institution is.”

The second question, whether states have to recognize same-sex marriages from other states, was less debated, perhaps hinting that the court is focusing on the first question, or that they already know which way it will rule.

Legal Briefs

The justices will probably consider the legal briefs more than oral arguments, if they haven’t already decided how they will rule.

Douglas Laycock, a religious freedom professor at the University of Virginia School of Law, filed a brief arguing in favor of nationwide same-sex marriage but also urging the court to protect religious liberty.

It read in part, “If this court holds that same-sex marriage is constitutionally required, it must take responsibility for the resulting issues of religious liberty, because a constitutional decision will largely displace legislative efforts to address the issue,” he wrote. “States that have enacted same-sex civil marriage by legislation have generally included provisions to protect religious liberty. But where marriage equality has arrived by judicial decision, religious liberty has not been protected.”

Follow Australia’s Lead?

Some of the liberal justices have suggested America should follow precedent in other countries. One of them even suggested other countries should model their constitutions after newer constitutions than America’s. So perhaps these liberal justices should consider Australia.

Australia has very liberal accommodations for same-sex unions, but does not recognize gay marriage per se. Perhaps America could follow their lead.

Conservative groups in Australia have successfully opposed same-sex marriage with arguments that every child deserves a mum and a dad. Read some of their arguments in the article.

American Culture is Rudderless

America’s culture seems to have become like that of ancient Israel, where “In those days there was no king in Israel. Everyone did what was right in his own eyes.” Judges 17:6, ESV. Of course, America is not a theocracy, but it has increasingly lost its moral foundation from the Bible and the Scriptures of other faith traditions.

Matthew Henry’s commentary on Judges 17 after the death of Joshua where there was no judge applies to America, where the love of money has caused some of us to betray our principles and make idols. America’s judges and other leaders are increasingly following their own ideas and not God’s principles.

Religious freedom laws may be needed

After the likely 5-4 June Supreme Court ruling to legalize gay marriage, unless it includes religious liberty protections as Douglas Laycock recommends, new laws will be needed in each state to protect the religious freedom of faith-based adoption agencies to place children with families who share their religious convictions.

Some people are OK with gay parents adopting; others are not. The faith-based adoption agencies should be allowed to refer gay parents to other agencies who are OK with it.

35 of 81 adoption agencies in Michigan have Catholic, Christian or Lutheran in their names. Some of these agencies may choose to immediately refer gay clients to other agencies under the proposed new law, which merely codifies existing DHS policies. Should they be forced to close down to follow the tenets of their faith, as they have in other states like Illinois and Maryland without this protection?

There should be room for everyone of all beliefs in America. Otherwise we will have the government-mandated National Church of Gay Dominance. America is supposed to have separation of church and state…

Here is more on the Religious Freedom Restoration Act circus that played in Indiana last month.

More pushback from the Left and LGBT lobby is here in the comments, indicating that compromise is unlikely, and there will probably be another Long War similar to that which followed the 1973 Roe v. Wade decision, which nullified most state laws restricting abortion on demand:

Justice Kennedy likely the swing vote

Here’s a link to an article suggesting that Justice Kennedy will be the swing vote, which references an editorial piece which appeared in the Detroit News. It also links to commentary on Ryan Anderson’s column about Kennedy, with a video of a debate with a gay marriage proponent and link to a review of the book What is Marriage?

Conclusion

However the court decides, it will be a landmark decision, hailed by one side and reviled as flawed by the other. Unless the court strikes the middle ground suggested by Douglas Laycock. Social conservatives will not be happy, but at least they won’t be forced into participating in gay wedding ceremonies or receptions. And adoption agencies will be able to continue to follow the tenets of their faith.

 

Dale Murrish writes on history, traveltechnologyreligion and politics for the Troy Patch and USA Melting Pot club. You can help this non-profit club by making your Amazon purchases through the link on their website. You can also read his articles on bicycling or quilting .