The Washington Post reported, "A federal appeals court panel upheld bans on same-sex marriage in four states Thursday [Nov. 6], a break with other federal courts that makes it almost certain the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry."
The decision came from a three-judge panel from the 6th U.S. Circuit Court of Appeals in Cincinnati. The 2-1 decision asserted that individual states should have the right to set rules for marriage in their respective states. In this case the jurisdiction of this courts reaches to Kentucky, Tennessee, Michigan and Ohio.
Everyone appears to be in agreement that this decision will force the hand of the Supreme Court to adjudicate if gay couples have a constitutional right to legal marriage and all its customary benefits. It would seem, and I have been saying for sometime, that this has been the legal trajectory, and it is inevitable that the Supreme Court will give us a ruling on the issue.
In all the debate about same-sex marriage, I would like to ponder just for a moment the constitutional debate. Same-sex marriage is debated from many different angles. Most likely, you'll hear me comment on it from a biblical point of view. Others wrestle with the issue as a moral, legal, or social issue. It seems many people just argue from the emotional and personal experience levels.
Our Supreme Court has a role of unmatched judicial power in our country. Article III of the U.S. Constitution does little more than establish the court's existence. Like many things at the beginning of our country's history, its function was significantly ambiguous. The first bill introduced to Congress in 1789 was the Judiciary Act. This legislation created federal districts and circuits and established the number of justices on the Supreme Court (originally six) and that it would "sit" in Washington D.C. During its first decade, the Supreme Court was rather weak. However, under Chief Justice John Marshall the 1803 landmark case Marbury v. Madison judicial review was established for the court. This has given the court the role of supreme interpretation and application of the Constitution to any law, federal or state.
In theory the justices on the Supreme Court are to operate outside partisan politics. Appointments to the bench are for a life time, meaning justices don't have to worry about pandering to the public to get elected. Furthermore, justices are not affiliated with political parties, meaning theoretically they can be free thinkers and not tethered to party platforms or ideologies. All this is set up so that the nine men and women that make up the court will do nothing but consider the actual application of law and hopefully embody the symbolism of the statue outside the Supreme Court of lady justice blindfolded holding the scales of justice. The problem is that a blindfold cannot stop the presuppositions of the mind that already exist. Nor does the blindfold inhibit the cries of public opinion.
So, when the court finally hears a case to challenge some state's law that forbids same-sex marriage, what part of the Constitution will the court look at in considering whether or not gay couples have the Constitutional right to marriage and all it's legal benefits? As you can easily imagine, the Founding Fathers could not have conceived the possibility of the present conversation. As you would expect, there is no direct information in the Constitution that gives any kind of explicit guidance on the subject. It would appear that what the justices are left to work with is merely an application of what they perceive to be the spirit, sentiment, or principles that may be contained within the Constitution. Most importantly, they will have the weight of legal precedent in regards to how the Constitution has been applied in similar cases, most notably last year's Supreme Court decision (June 2013) to strike down the 1996 Defense of Marriage Act (DOMA) in U.S. v. Winsor. This case extended federal rights to legally married gay couples in states where gay marriage was legal, but didn't intrude on states where gay marriage was still illegal. Of course, this decision led to a cascade of decisions in federal appellate courts that have struck down state bans on same-sex marriage. This is what makes the decision of the 6th U.S. Circuit Court unusual. It is the first federal appeals court to uphold state bans on gay marriage, arguing that the courts shouldn't decide on this issue. The majority argued that the marriage debate should be resolved through the democratic process and not through the courts. However, in doing so, this circuit court may have accelerated the process of the Supreme Court taking up the matter.
In the case of U.S. v. Windsor the Supreme Court cited the Fifth Amendment as justification in its 5-4 decision. The specific phrase plucked from the amendment was " nor be deprived of life, liberty, or property, without due process of law." It seems likely the court will go here again when it considers the constitutionality of state laws in regards to bans on same-sex marriage. I would also expect the court to go to the Fourteenth Amendment and reference this sentence: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
It is reasonable to conclude that those who crafted and ratified these amendments did not have issues pertaining to marriage in their sights. Homosexual behavior overwhelmingly was considered immoral, not a liberty. And frankly, that is the real debate behind the debate. The constitutional debate will be just the legal veneer that obscures the more fundamental moral debate. If homosexual behavior and gay marriage are morally acceptable to our society, then it is inevitable that the principles in the Constitution will be applied to protect gay couples and afford them marriage rights. I would suggest that the fact that we are even having the debate is proof that the scale has already tipped culturally in approval of the homosexual lifestyle. It appears to me that it is inevitable with the current court that we are headed to another 5-4 decision that will prohibit states from holding laws that ban same-sex marriage.
What does this mean to a pastor like myself? It means I have choices of which I must be keenly aware. I can either spend my time cursing the darkness or making sure that I am being light in both word and deed. I can either become a miserable preacher who rants about things out of my control or be the salt in my community by loving people and speaking truth when I enter the pulpit. I can choose to be harsh or gentle in dealing with the topic in the days ahead in conversations. I have to be okay with biblical truth giving offense while being careful to not be an offensive personality. At the end of the day, no matter what that day has held, I want to be like my Lord - full of grace and truth.
I believe the church needs to prepare itself for this extremely likely ruling from our Supreme Court in the very near future. We must be able wisely and biblically to draw appropriate lines of non-compromise. Simultaneously, we must lift high a positive vision of biblical faith and family for the world to see. Personally, I simply must be the husband and father God has called me to be. Christian couples need to abandon the culture of divorce that first eroded the value of marriage, paving the way for further redefining of the institution. Faithfulness, love, perseverance and a commitment to God's Word need to be our positive qualities. We must adopt a gracious attitude of long-suffering for truth's sake and tolerate the condemnations and attempts of shame. We will simply keep sharing the Gospel, being faithful to God and His Word, and loving all people no matter what decision we receive from the Supreme Court.
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