The Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act was a cause for celebration for many. Andrew Sullivan, whose constant advocacy for same-sex marriage had made him perhaps the most influential blogger in the country, lauded it: “Marriage is not a political act; it’s a human one. It is based on love, before it is rooted in law. Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways.” Barack Obama tweeted his backing. Bill Clinton, the president who signed DOMA into law, expressed his support. Even cultural icons got into it: Starbucks praised the ruling, The New Yorker put a gay Bert and Ernie on the cover, and General Mills celebrated by making the cereal Lucky Charms the face of its #LuckyToBe campaign in support of gay pride.
Conversely, the opposition to the Court’s decision was much more muted, and perhaps for good reason: In the wake of the 5-4 ruling, a record 55 percent of Americans said that same-sex marriages should be recognized as valid under the law.
I think the Court’s ruling was a bad one, both for the result, and for its jurisprudence. I agree largely with Justice Antonin Scalia’s dissent (a portion of which you can read here) and Richard Epstein on the merits of the decision. As Matthew Franck wrote at First Things, “Justice [Anthony] Kennedy’s Windsor opinion on the merits deserves all the scorn heaped on it by Justice Scalia’s dissent.”
The major problem with the ruling is how it was made — and what that portends for religious liberty.
In arguing for the unconstitutionality of Section 3 of DOMA — which, for definitional purposes, defined marriage as between one man and one woman — Justice Kennedy impugned the motive of those who lobbied for the bill’s passage, voted for it, and supported it. Said Justice Scalia in his dissent,
The majority says that the supporters of this Act acted with malice — with the ‘purpose to disparage and to injure’ same-sex couples. It says that the motivation for DOMA was to ‘demean,’ to ‘impose inequality,’ to ‘impose … a stigma,’ to deny people ‘equal dignity,’ to brand gay people as ‘unworthy,’ and to ‘humiliate their children.’
This poses a problem for advocates of traditional marriage, particularly of a religious bent. For us, there is now — at least, according to the Supreme Court — no good reason, no justification for us to be against the legalization of same-sex marriage. It is not rational. It is bigoted. As writer Rod Dreher wrote, “Henceforth, the Court has declared open season on religious and social conservatives and their institutions.” What happens if a homosexual couple, because of family, traditional, or even moral reasons, decides it wants to become married in a church? What can the church do? It could simply deny the couple that right, but that might open it up to charges of discrimination. It could require the couple to be members at the church for it to preside over the wedding, meaning they would have to follow the church’s tenets, but, again, that would merely open the church up to charges of bigotry. Though Justice Kennedy did not explicitly say whether legislation or private acts banning same-sex marriage from a particular place or institution would face “strict scrutiny” in the Court, based on Kennedy’s opinion, that standard does not seem far off. (According to the Court, “the strict scrutiny test applies to ‘suspect classifications,’ such as race, and legislation affecting fundamental rights. On this standard of review, legislation is sustained only if there is ‘a compelling state interest’ in the legislative classification… when the Court applies this standard, legislation invariable falls.”)
What seems even more likely is this: A faith-based organization denies same-sex couples certain services. Would it then be able to be sued for discrimination? After all, according to Justice Kennedy, that group would merely be demeaning, disparaging, and imposing a stigma on these couples.
Taken to its logical conclusion, the Court’s opinion puts religious liberty in jeopardy and opens the door for a host of other acts to become legalized. In the not-so-near future, polygamy could be the next battlefield in the culture wars. Argues Jillian Keenan, legalizing polygamy is the logical next step in expanding sexual freedom and equality. The crux of her argument:
The definition of marriage is plastic. Just like heterosexual marriage is no better or worse than homosexual marriage, marriage between two consenting adults is not inherently more or less ‘correct’ than marriage among three (or four, or six) consenting adults. Though polygamists are a minority — a tiny minority, in fact — freedom has no value unless it extends to even the smallest and most marginalized groups among us. So let’s fight for marriage equality until it extends to every same-sex couple in the United States — and then let’s keep fighting. We’re not done yet.
Oppose polygamy? You do so with purpose to disparage and injure polygamous couples. You demean them, impose inequality and a stigma, deny them equal dignity and brand them as unworthy, and humiliate their children. The only reason polygamy is not legal in the United States is because the vast majority of Americans find it odious. That is nothing to sniff at. The opinions of the citizenry in a republican democracy are quite powerful. But taken to its logical conclusion, Justice Kennedy’s opinion would find polygamy, and a whole host of other actions, totally and completely legal.
This is why the Court should have no place in this discussion. As Justice Scalia noted in a previous dissent, “One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.” If the people, through their representatives, were allowed to rule on matters of same-sex marriage, polygamy, etc., they would only rule on what they wanted at that moment. The legislation crafted need not be intellectually precise or logical — much of legislation, as most of us know, is most certainly not. It can be based on tradition and consent. When the Court does the same thing, it has no such luxury. Thus, all of these problems come into play.
Politically, I have no idea what the solution is. Gay marriage over a broad swath of the country seems inevitable. Though some argue that fighting out this issue in the states gives traditionalists an advantage, others argue that it poses many problems as well. I am persuaded by both arguments, though my pessimistic nature tends to win out.
What are orthodox, traditional Christians to do?
Though the ruling is cause for concern, not all is bleak. Though Wendy Davis’ filibuster prolonged its passage, Texas is likely to pass a bill enacting stricter regulations of abortion facilities and a ban on all abortions after 20 weeks. And, given the state of the world, I would gladly trade the legalization of same-sex marriage for an end to abortion.
Though I do think religious liberty concerns are not flippant, by becoming a conscious minority, rather than an at-times obnoxious majority, orthodox Christianity can get to what it does best — not busily monitoring the morals of the country, but seeking to spread the truth of the gospel to the world. This change of emphasis is both scriptural and necessary. And, if memory serves right, the Church has done just fine as a minority.
And lastly, Christians have a great opportunity to witness to the rest of the country. We have not, to this point in time, convinced many people of the truth of our outlook on marriage by the merits of our arguments. They have, it seems obvious, proved largely unconvincing. Instead, let’s convince through the vitality, excitement, joy, and goodness of our own marriages. Let’s remove any potential charge of hypocrisy by working to have holy marriages that are truly ordained and covenanted by God. By working to fulfill the ideal that God has for marriage, acknowledging that, though we live in a fallen world, this ideal blesses us. By staying together, by raising responsible, God-fearing children, and living in purity.
That’s why I still have hope.
 O’Brien, David, ed. Constitutional Law and Politics, Vol. 2: Civil Rights and Civil Liberties, Seventh Edition, New York: W.W. Norton & Co., 2008, 1338.