[Please note a change of Title to this recent post.]
The long awaited decision on same-sex marriage by the US Supreme court has finally arrived. Same-sex marriage is now legal in all 50 states. I spent my Sunday reading the court's majority decision written by Justice Kennedy and the dissenting remarks. I wanted to capture the full flavor of the arguments before commenting.
MARRIAGE PRESERVED
Contrary to those who believe the majority ruling has destroyed the institution of marriage, I would say that marriage has been preserved in this decision. Had the court chose not to review this case or had it ruled against the petitioners, the civil role for marriage in society would have been put at risk. I will explain further on in this post.
The dissents to the majority ruling are, in my opinion, more entertaining than substantive. The lack of substance in the dissenting opinions should have led them to agree with the majority, were they being objective about this case, rather than letting their subjective views get in the way as clearly demonstrated in Justices Scalia's and Alito's dissenting remarks. Contrary to the suggestion that the majority decision has rendered the court's action legislative, I would say the court acted as the court should, interpreting existing laws in the light of Constitution.
This Court did not define marriage, state legislatures did through their legislative procedures, and when they did the way was paved for the Court to adjudicate their legislative decisions. The fact is several states deferred action regarding the rulings of federal judges to the Supreme Court. They could have opted to comply with the Federal Court ruling and go back to the drawing board to revamp their laws or they could have petitioned the court itself. They chose not to, choosing to passively side with the respondents in this case. Click here to see the Court's ruling in Obergefell v. Hodges.
The respectful dissent given by Chief Justice Roberts that the Supreme Court acted legislatively does not seem to hold true given the course of events that led up to its hearing Obergefell v. Hodges as mentioned in the preceding paragraph. The court did not invite nor did it invent these cases, they were brought to the court through the appeal process by the petitioners and in accordance with the Supreme Court's judicial procedures. With all due respect for the Chief Justice's dissent, a ruling against the laws of a given state legislature by the Court is not legislation, it's adjudication. There is abundant precedent for doing so, as Justice Roberts well knows. The court ruled within the scope of the Constitution's 14th Amendment.
As much guff as Justice Kennedy has received by those dissenting the majority ruling, he did a brilliant job in citing and using legal precedent. Justice Kennedy premised the majority's ruling on the respondent states placing an undue burden on the dignity of the petitioners. In this case the dignity of the petitioners was burdened by state laws solely because of their identity or sexual orientation. The majority ruling specifically cited the type of burdens these individuals had to deal with because of disparate laws existing in various states. It acknowledged that this decision expanded fundamental right of two people, regardless of their identity, to marry as protected by the Constitution of the United States under the 14th Amendment. In particular, he cited three previous cases ruled on by the Supreme Court that reversed existing state legislation regarding the identity of people seeking the benefits of marriage: Loving v. Virginia (1967), Zablocki v. Redhail (1978) , and Turner v. Safley (1987).
Loving ruled that racial identity was no barrier to marriage between people of two races , Zablocki ruled that an identified father behind on child support could not be used as a barrier to the father getting remarried. Turner ruled that individuals could not be denied the right of marriage because they were identified as prison inmates.
Justice Kennedy also cited Griswold v. Connecticut (1965). In citing Griswold, Justice Kennedy referred to a definition of marriage cited in that ruling protecting the rights of a couple to the use of contraception. Here is what Justice Kennedy quoted:
"Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of begin sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet is an association for the noble a purpose as any involved in our prior decisions."
This is probably the most definitive language regarding marriage found in case law relevant to the case at hand. It's breadth is inspiring. It's lack of specific language regarding an identity as to who can be married is as inspired as anything written in the Constitution, which was purposely left open ended and definitively vague so as not to impede the social and political progress of this great nation.
In that same spirit, the decision to legalize same-sex marriage says nothing about who should or shouldn't be married, but rather that those desiring marriage, as defined in Griswold, should not be prohibited because of identity. This has not prohibited states from legislating other matters regarding marriage, such as age requirements, etc.. The majority ruling simply states that personal identity, as set by legal precedent, is not sufficient to prevent two people from being married and enjoying the privileges and responsibilities thereof and is thus protected under the 14th Amendment of the Constitution. As such, marriage has been preserved as foundational to our common understanding of society and as the means of establishing and providing for the familial and personal relationships it encompasses.
The dissenting justices pointed out that the constitution has no definition for marriage. That's true. The fact is the constitution doesn't define a lot of things that the Supreme Court has had to rule on throughout its history. This ruling did not define marriage. In actuality, marriage is difficult to define conceptually. The functional definition of marriage found in Griswold is probably as succinct a definition that one will find anywhere.
At best, marriage is the communal recognition that a covenantal bond exists between two individuals. As such, marriage is not specifically defined in the Bible either. The closest Chief Justice Roberts could come to finding a specific definition of marriage was in Noah Webster's Dictionary which he quoted in his dissent. All the dissenting judges pointed to the "long standing tradition" of marriage meaning one man and one woman. Chief Justice Roberts, however, pointed out his fear that polygamist would see their chance to legalize polygamous marriages.
The fact is there exists a longer tradition of polygamy than there is of monogamy with regard to the tradition of marriage and in forwarding his fear, Justice Roberts inadvertently admitted the "tradition" of marriage has changed throughout the centuries. The majority ruling did not change the monogamous state of marriage that is law in all 50 states.
If tradition is what marriage is to be based on, by all means polygamists should have their day in court. In fact, I don't see how the dissenting justices could argue against it, now that they have brought up.
Thankfully, tradition is not law and to cite it as such enters precarious terrain.
Had the court not decided in favor of the petitioners, marriage, as a foundation of our society would have been put at risk. It would have resulted in the need, at some point, to create a separate means for people in same-sex relationships to acquire the same rights and responsibilities of those is marriages as in recognizing civil unions.
Marriage, from a societal perspective, is a civil union - a legal covenant between two individuals that can be dissolved by court of law. Renaming same-sex relationships as civil unions only and opposite sex unions as marriages would have created a double-standard that I suspect would have, in the long-run, consigned the institution of marriage to that of a historical anachronism.
Had this ruling not been given, marriage would have been defined and identified by its "traditional" role that has come down to us via religious tradition, rather than secular tradition, since a strictly secular tradition does not exist. It does now. Marriage is now divorced from its being solely defined by its "traditional religious" connotations. The brouhaha by some conservative religious leaders is evidence of that. The founding fathers would not have seen a need to do so at the time the Constitution was written. Times have changes and with it the need to broaden that tradition has arrived. The fact is there are many long-standing religious denominations that welcome this broadening of the marriage tradition.
The wall separating state and church has been preserved. Thank God and thank the Court!
The division between church and state is one of the United States finest traditions and it should not be tampered with. Religious institutions have it very good in this country. Religion has flourished primarily because it enjoys freedoms of expression that have been long standing and not found elsewhere in the world.
That hasn't been changed by this ruling.
RELIGIOUS FREEDOM PRESERVED
Those who have expressed angst over this ruling as having violated religious freedom have been and are being misled by those who are saying this ruling compels them to marry same-sex couples which they, by their religious beliefs, are forbidden to do. This is blatantly false contention. This ruling upholds the First Amendment and the right of religions the free exercise thereof. To quote the majority ruling:
"Finally, it must be emphasized that religions, and those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organization and each persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in and open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."
The majority ruling has preserved the traditional role of marriage in this country both as a function of the state and a function of religion. Nothing there has changed.
There is no denying that marriage throughout the centuries has been understood to be the coming together of a man and a woman for the purpose of sharing their lives, for better or for worse, until the death of one or the other. Marriage was also understood to be the proper state or environment for raising children and of defining common property and the rights associated with it. That is the traditional understanding of marriage in its simplest form.
Traditions that endure, however, do so because they can absorb change when circumstances change - when understanding changes. Until very recently no one would have considered same-sex marriage viable, but things have changed, circumstance have changed, understanding has changed.
What hasn't changed is marriage.
Let me provide an example from science. For centuries it was literally a matter of faith in the Christian world that the earth was at the center of cosmos and the Sun and Moon revolved around it. That understanding stood for millennia . It was such an article of faith, at one time that the that great Galileo was censured, silenced and forced to retract his writings that the Earth is not the center of the Cosmos; that the Earth revolved around the Sun and the moon revolves around the Earth and forced to live out the rest of his life in isolation.
My point is this: Regardless of whether one believes the Sun and Moon revolves around the Earth or the Earth revolves around the Sun, the Sun and Moon still rise in the East, as do they set in the West. This new information has not changed our experience of sunrises, sunsets and the moon rising and the moon setting, but the discovery and the new understanding brought about by Galileo and others has broadened our appreciation of what's involved in these processes, of the universe as something far more than what it was prior. As with sunrises and sunsets, the beauty of marriage has not been altered by this decision. It's been broadened. It has likely attained greater depth and meaning.
In addition, the Bible really doesn't define what marriage is. The Bible describes its function, but not its essence. For example, we read in Genesis 2:24, Matthew 19:5, and Mark10: 7, the following: "For this reason a man shall leave his father and mother and a woman shall leave her home and the two shall become one flesh."
That's more a commentary on marriage rather than a definition. It's describing how it functions. "The reason" is not specifically spelled out. The reality is throughout history people become married for a number of reasons.
Love was not considered essential for marriage in ancient times. Marriages were arranged and bargained. Love might have been the icing on the cake, but it was certainly not considered a main ingredient of the cake. Women and children were more often considered property of the man than anything else. Love frequently resulted because of such unions, but was not always present at the onset of such arrangements. That has changed and, in historical terms, is a relatively recent change. [See my posts "Senseless Sex in the Bible" and "Is this the end... of Marriage?" ].
Polygamy was very much the practice of the day in the Middle east when these comments were made. There is no biblical prescription, for example, stating that marriage must consist of one man and one woman only. Even in the Epistles, which talk about married life between a husband and wife there is no true definition of what marriage is or how its established. The simple fact about marriage is that it requires a communal recognition that two individuals, historically involving a man and a woman, coming together to share each others lives.
In ancient times this process could be repeated by men several times, resulting in a man of means having several wives and a whole bunch of children. The only Biblical prescription regarding marriage as being between only one man and one woman is in the Christian epistle, 1 Timothy 3:2 where it states that a bishop should be the husband of one wife. That's as far as the Bible goes in defining marriage as being between one man and one woman.
What has changed is that we now know and acknowledge that two people of the same sex can fall in love and desire to share their lives in the same matrimonial state as opposite sex couples do. We now know that same-sex couples are capable of having children of their own genetic composition (thanks to advances in reproductive science), adopting children, and raising children such as opposite sex couples do. In that sense, the circumstances have changed, but marriage hasn't. Marriage remains what it has always been, a coming together of two individuals for the purpose of sharing their lives together in intimacy. [Justice Scalia's comments about intimacy in his dissent is worth the read.]
I am well aware that there are sincere religious people who feel very threatened by the Court's decision, who see this as an affront to God's will. I would ask them to take a deep breath and consider for a moment:
Is it possible that the Court carried out God's will to give us new understanding, a new depth to our understanding of human relationships?
The Court won't go there, but God, as I understand God, frequently within Biblical scriptures used those outside of the framework of religion to inform religion - including the use of mythical donkey by one account. Religions can become root bound to the extent they stop growing. They become enmeshed in their dogmatism to the point of having said it all. I've belonged to a church like that; where every sermon was essentially a regurgitation of every other sermon I heard in that church since a child. In fact, if you say something different in those churches' people complain you're not preaching the Gospel. They can only find comfort in hearing the same old messages. One really doesn't understand how brainwashing religion like that can be until one steps away from it.
When fear becomes the dominant theological position taken by a church, for example; when all that can been seen is gloom and doom ahead, that church has lost its bearings. It's root bound. It can't think beyond its fears. God sometimes, shakes the foundations to get things going again. If same-sex marriage is shaking the foundations of one's faith, maybe it needs a good shaking out to enliven it.
Beware of Wolves in Sheep's Clothing
Religious freedom can only be put at risk by the religious themselves.
Attempts to try and turn this into some sort of religious battle is misleading, to say the least. Since Obergefell v. Hodges was presented to the Supreme Court for review, I have heard all sorts of bizarre rhetoric used to frighten people. I find it interesting that many opponents to gay rights, yet alone, same-sex marriage talk in terms of Gay Nazis trying to take over the nation, of saying the Supreme Court does not having the final say regarding the laws of this land, that God's law takes precedent over US Law - trying to paint theocracy as democracy. Obviously, such individuals have no sense of history or religion.
Gay Nazis are a contradiction in terms - an oxymoron. Gays were as much persecuted by the Nazi's in Germany as the Jews.
This nothing more than a wolf in sheep's clothing approach to the issue; that is, wolves trying to act like sheep by pointing to other sheep and describing them as wolves.
I have heard some try to describe the effort to promote same-sex marriage as being kin to ISIS, another wolf in sheep's clothing argument.
Haven't they been watching the news? ISIS has been shown to kill gays in public.
Who are these people trying to fool? There are times when I think I was listening to an old Warner Brother's cartoon.
It seems to me the purpose for making such outlandish statements is that if one doesn't have a rational argument to make against something one opposes, then make the argument so irrational and outrageous as to garner the attention of the inattentive who just might buy into one's point of view simply because it is outrageousness and being published in the news and social media.
Unfortunately, there are those who think the more outrageous something is there must be some truth to it, especially if it backs their beliefs about something. It works on the young and weak minded. Its a troubling to see so called educated people utilize such scare tactics on those most prone to radicalization - those who will take matters into their own hands. I have often wondered why those espousing such outrageous notions are not cited as accomplices after the fact when those very ideas lead to violence in this country.
Then there are those who are saying churches and religious institutions may end up losing their tax exempt status if they refuse to marry same-sex couples. This is an interesting ploy.
Money, always seems to hit home - even among the religious - or perhaps more so. Churches have long set their own standards by which they will or will not marry individuals. No couple seeking to be married in a church or synagogue has a right to be married in a church, synagogue or temple because they want to. Such religious places are permitted to have and exercise their own policies with regard to who they will or will not marry.
That is not going to change.
The fact is, there are many churches who already are performing blessings on same-sex couples, and in states where same sex marriage has been permitted, they have willingly performed such marriages. Nobody has forced them to or forces churches who do not want to marry a given couple to do so.
What is more likely to happen over the course of time is that churches who support same-sex marriages will lose some of its membership and churches who oppose same-sex marriages will lose some its membership.
Religion is a free and open market in the US.
People, for the most part, are no longer attached to a specific denomination in the United States. If you don't like the church you're in, you have choices to consider, or you can stay at home. Religious denominations can no longer count on membership loyalty because someone was born or married in a particular church, synagogue or temple. Those times are long gone, and its been a healthy development for the sake of religion in America. Religious leaders frequently lament that fact, but it encourages growth. It is forces religions of various types to take a hard look at themselves and what they teach.
Then there are the Republican Presidential candidates who lining up to make this a political football in the upcoming presidential election. Oh well, nothing new here. Such is the politics of desperation. If you have nothing to offer, block those who do with a barrage of fear-mongering rhetoric.
I remember the time when interracial marriage was a much discussed topic in my plain's state conservative Lutheran church. I remember hearing the argument against interracial marriage, between black and whites in particular, put this way: "Black birds don't mate with Blue Birds. It's not natural." This is the same argument some religious leaders are saying about same-sex marriage. "It's unnatural." In time, however, interracial marriages became considered natural and the Court helped us broaden our religious perspective on that.
I suspect when all the fluff about this settles, no one will bat an eye about same-sex marriages. It too will be natural. The sky didn't fall when blacks and whites married, and it won't fall with the marriage of same-sex couples.
The biggest threat to religious freedom, as I have said earlier, comes from those who have their own notion of religion they wish to protect. Its very easy to predict (which I don't do very often) that if social conservatives try to create fear over the tax exempt status of religious institution by creating laws to protect them, they will be inviting scrutiny of the tax exemptions these institutions now enjoy.
Social conservatives simply don't understand how the creation of law results in the scrutiny of such laws. They simply don't get it.
Or do they? Hmmm....
I hope the leaders of all religions in this country are weary of any politician trying to protect religion.
Hopefully, this furor will abate quickly.
Marriage has not changed. It's been expanded.
Religious freedom has been affirmed and remains in tact.
No need to mess with any of it.
Let it be.
Until next time, stay faithful.
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