The State of Marriage After 6-26-2013

Much has been spoken and written about the U.S. Supreme Court marriage decisions in the hours since they were revealed. Here are four thoughts to clarify the state of marriage after the rulings:

Rings1. The Defense of Marriage Act (DOMA) Died A Moral Death.
In United States v. Windsor (the DOMA case), Justice Kennedy, writing for the majority, wrote: “The avowed purpose and practical effect of the law here in question [DOMA] are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.” Kennedy specifically pointed to the legislative history of DOMA, which states in part that the law reflects “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” Thus, in no uncertain terms, Kennedy pointed to Congress’ moral judgment as evidence of the “stigma” that led to the Court’s striking of section 3 of the law. Further, Kennedy described society’s “evolving understanding of the meaning of equality” and equated opposition to same-sex marriage with animus or hatred. In short, Kennedy condemned Congress’ moral judgment and then expressed his or “society’s” own moral judgment in support of striking the law.

2. State Definitions of Marriage Survive – For Now.

By striking down section 3 of DOMA on Fifth Amendment due process and equal protection grounds, the court essentially eliminated the former federal definition of marriage. Thus, any state’s definition of marriage qualifies for purposes of federal law. The court did not strike down the provision that protects states from being forced to recognize marriages performed in a state with a different definition of marriage. Though the court did not hand down a 50-state mandate, the close relation of the Fifth Amendment to the Fourteenth Amendment and the tone of the majority in condemning opponents of same-sex marriage prompt concerns about future challenges to state definitions.

3. Proposition 8 Is In Legal Limbo.

In Hollingsworth v. Perry (the Prop 8 case), the Supreme Court held that the leaders of Prop 8 had no standing to challenge a lower court ruling that held Prop 8 unconstitutional. This ruling vacated the Ninth Circuit opinion holding Prop 8 unconstitutional. The presumption is that same-sex marriages will now be legal in California. However, Prop 8, as an initiative, has not effectively been invalidated by an appellate court (as a result of today’s ruling); thus, Prop 8 is still arguably in effect and will face further legal challenges under the laws of California.

4. These Decisions Are Not a Roe v. Wade, But They Are Powerful Precedent.

As noted above, the court did not deliver a 50-state mandate or establish a “right” to same-sex marriage. But, the stage is set. The language and tenor of the court clearly invite such a challenge in a state that defines marriage as between a man and woman. Justice Scalia, in his dissent, stated the following: “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”

In closing, consider the words of Justice Scalia in his dissent in the DOMA case: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.”

Because this issue means so much to so many and because it is—evidently—such a deeply moral dilemma, the divided court’s holdings raise concerns. Even if one agrees with these holdings, hotly contested judicial pronouncements hardly seem the best systemic way to solve our gravest disputes. Also, Christian ministries and religious nonprofits should think deeply about this issue and prepare for the coming legal and cultural struggle. For, if your ministry stands for the Biblical definition of marriage, your ministry is now—in at least 12 U.S. states (those that have legalized same-sex marriage)—on the unfamiliar, unlawful side of a federal decree.

About the Author

Josh-HershbergerJosh Hershberger is an attorney with the Church Law Institute. He licensed to practice law in Indiana and Kentucky. If you have questions about how these decisions will affect your ministry, please call the Church Law Institute at (615) 964-5202 or email Church Law Institute will be hosting a webinar on this topic on July 11, 2013.



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