by FRC Media Office
July 13, 2015
Today, FRC’s Ken Blackwell appeared on C-SPAN’s “Washington Journal” to discuss the Supreme Court decision on same-sex “marriage.”
Today, FRC’s Ken Blackwell appeared on C-SPAN’s “Washington Journal” to discuss the Supreme Court decision on same-sex “marriage.”
In a somewhat unusual alliance, “35 religious leaders representing Catholic, evangelical, Pentecostal, Orthodox and Mormon churches” have issued an “Open Letter … to All in Positions of Public Service” concerning same-sex marriage. As noted by Religion News Service, Imam Faizul Khan of the Islamic Society of Washington Area also signed the letter.
Among the signatories are National Association of Evangelicals president Rev. Dr. Leith Anderson; the Most Rev. Salvatore J. Cordileone; Archbishop of San Francisco; Rev. Dr. Matthew Harrison, President of the Lutheran Church - Missouri Synod; Most Rev. William E. Lori, Archbishop of Baltimore; Dr. Russell Moore, President of the Southern Baptist Ethics & Religious Liberty Commission; and Rev. Samuel Rodriguez, President of the National Hispanic Christian Leadership Conference.
Here are two excerpts from the document:
“The redefinition of legal marriage to include any other type of relationship has serious consequences, especially for religious freedom. It changes every law involving marital status, requiring that other such relationships be treated as if they were the same as the marital relationship of a man and a woman. No person or community, including religious organizations and individuals of faith, should be forced to accept this redefinition …
“The well-being of men, women, and the children they conceive compels us to stand for marriage as the union of one man and one woman. We call for the preservation of the unique meaning of marriage in the law, and for renewed respect for religious freedom and for the conscience rights of all in accord with the common good.”
There is much to commend here. Christians who believe in the Bible’s unalterable teaching that marriage exists as the union of one man and one woman should always and often be articulating publicly this truth, and doing so in the irenic manner of this letter.
With that said, this “open letter” is, perhaps, so “open” as to be innocuous: Addressing no one in particular, I fear it will have the effect of shouting out of a window on a stormy day. Additionally, although it mentions this week’s oral arguments on same-sex marriage at the Supreme Court, it nowhere calls on the Court to rule against mandating that all 50 states accept the redefinition of marriage being demanded by the advocates of such. The letter’s omission of calling on the Supreme Court to decide this issue consistent with the Constitution and the natural law tradition (supported by Protestants and Catholics, in sometimes different but still important ways, alike) seems rather odd.
The letter does raise an important question: What of the fear that the law could require churches, synagogues, and mosques to hold, and the clergy who lead them to perform, same-sex wedding ceremonies?
At present, legal protections exist, but churches need to be aware of them and also how to protect themselves from potential litigation. That’s why the director of FRC’s Center for Religious Liberty, Travis Weber, has written a new FRC Issue Brief, “How are clergy protected from being forced to perform same-sex marriages?”
At the same time, FRC’s allies at the Alliance Defending Freedom have drafted “Seven things All Churches Should Have in Their Bylaws,” which lists how church bylaws can protect religious institutions from potential litigation with respect to same-sex marriage and related matters.
I applaud the signatories of the “Defense of Marriage” for issuing this letter, even though its potency seems modest given its rather amorphous audience. Regardless of how the Supreme Court rules in June, people who believe the Bible will keep on standing for Scripture’s truth and doing so with the grace of our Lord Jesus Christ.
Yesterday, in the consolidated cases of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers, a Washington state court judge held that a small wedding vendor defendant engaged in impermissible discrimination in seeking to honor her religious beliefs and not support the promotion of a same-sex wedding ceremony with her services.
In granting the plaintiffs’ motions for summary judgment, Judge Ekstrom of the Benton County Superior Court elevated nondiscrimination laws over free exercise and free speech rights.
In holding that “[f]ree exercise is not … without its limits,” Judge Ekstrom relied on the Supreme Court’s proclamation in Reynolds v. United States that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices… . Can a man excuse his practices to the contrary because of his religious belief? The permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
True, the Supreme Court in Reynolds stated as much.
Equally interesting is the language from Reynolds which Judge Ekstrom excised from his quotation:
“Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed.”
I don’t know why Judge Ekstrom chose to describe the Free Exercise Clause by quoting from Reynolds. Perhaps he thought it was his best source of authority; that seems unlikely though given that the decision is over 100 years old and is criticized right and left as “outdated.” Perhaps he thought he was being clever by using another case involving a rejection of religious rights in the context of sexuality.
If the latter, it’s quite ironic that the authority a judge relies on in restricting the rights of religious objectors to same-sex “marriage” is the same authority upholding limits on traditional marriage for the good of society.
For the Court in Reynolds rejected a free exercise challenge to a law criminalizing bigamy, and in doing so, noted the state’s significant interest in regulating marriage:
“it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal.”
Today, if a state tried to uphold its natural marriage laws by relying on Reynolds it would be criticized loudly and clearly.
Regardless, Reynolds actually proves the utility and workability of strict-scrutiny religious rights frameworks being debated today, as the hypothetical human sacrifice and burning of the dead scenarios mentioned in Reynolds clearly would be barred by a compelling government interest, while other religious rights not seeking to override a compelling government interest would be protected under such frameworks. This is precisely the balance needed to sort out valid religious rights claims from invalid ones, and protect conscience objections like those of Ms. Stutzman — especially since judges like Judge Ekstrom won’t.
The Supreme Court today has “turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others — but also leaving the issue unresolved nationally.” So now same-sex “marriage” is legal in 30 states plus D.C.
My boss Tony Perkins issued a thoughtful statement about the ruling earlier today. In part, he said, “As more states are forced to redefine marriage, contrary to nature and directly in conflict with the will of millions, more Americans will see and experience attacks on their religious freedom.” Sadly, he’s dead right.
There are a number of dimensions to this issue, one of which was articulated by Dr. Al Mohler of Southern Baptist Seminary in an article on September 24: Homosexuality is “now inescapable for every congregation, every denomination, every seminary, and every Christian organization. The question will be asked and some answer will be given. When the question is asked, any answer that is not completely consistent with the church’s historical understanding of sexual morality and the full affirmation of biblical authority will mean a full embrace of same-sex behaviors and same-sex relationships. There is no third way, and there never was.”
Two observations: First, Dr. Mohler is right with respect to the inevitability of division within the believing church over this issue. Christians will choose to be faithful to Scriptural teaching or they won’t. There is not, as he notes, nor will there ever be, any middle ground between obedience and submission to the revealed will of God and rebellion against it.
Second, I’m haunted by the memory of William Seward’s comment, immediately before the Civil War, that strife between North and South over slavery constituted “an irrepressible conflict.”
Millions of Americans simmer with resentment at the coerced redefinition of marriage the courts are imposing on them, despite referenda in dozens of states where they have affirmed the traditional definition of marriage quite explicitly. The Dred Scott decision did not decide the issue of human bondage. The Roe v. Wade decision has not decided the issue of abortion on demand. And the continued federal court confusion over same-sex unions only postpones a day of legal reckoning that could create a measure of civic sundering unwitnessed in our nation for decades.
Even if the Supreme Court has valid reasons for postponing their decision on this issue, postponement is not resolution. I fear that whatever decision the Supremes finally reach will not resolve it, either.
The Supreme Court has declined to take up any of the pending same-sex “marriage” cases before them.
There is bad news and good news in this decision. The bad news is that these states have been denied the opportunity to defend their legitimate power to define marriage before the Supreme Court. The good news is that the Supreme Court does not seem to be as eager as many people assumed to issue a “Roe v. Wade“-type decision redefining marriage.
This decision reflects cowardice on the part of the Supreme Court. People on both sides of the marriage debate agree that the constitutional issues that have been raised should be addressed by the highest court in the land. The Court is right to fear a backlash if they impose a redefinition of marriage on all fifty states; but they are wrong to just let the lower courts do their dirty work for them.
The decision is baffling on several levels. It is hard to understand why the Court heard the case (Hollingsworth v. Perry) challenging California’s Proposition 8 in 2013 (then declined to rule on the merits because of standing issues), but is refusing much clearer cases now. Some say they are waiting for “circuit split” on the issue, but one already exists — the Eighth Circuit upheld Nebraska’s marriage amendment in 2006 (Citizens for Equal Protection v. Bruning). Furthermore, the Supreme Court’s own “dismissal for want of a substantial federal question” of a same-sex “marriage” case out of Minnesota in 1972 (Baker v. Nelson) remains binding precedent until the Supreme Court itself explicitly overrules it.
Everyone needs to be reminded that the question of whether redefining marriage is good public policy is separate from the question of whether the Constitution of the United States mandates such a redefinition. Even those who favor redefining marriage should understand that such a radical social change is more likely to be accepted if it is adopted through the democratic process, rather than imposed from on high by a court.
One thing is clear — anyone who claims to know what the Supreme Court is thinking is wrong.
“Evangelicals for Marriage Equality” has published a piece in TIME magazine asserting an orthodox theological case for same-sex “marriage.”
This ground has been covered so often that to write about it again seems redundant to the point of being tedious. Yet it cannot be ignored because its proponents keep raising it. Below are some responses to this new initiative whose essential argument – that “it’s possible to be a faithful Christian with a high regard for the authority of the Bible and a faithful supporter of civil marriage equality” – is simply not consistent with biblical teaching, natural law, or the quantifiable good of society.
This is not a dispute like Christian disagreements over modes of baptism or the doctrines of the end times (you say amillenial, I say premillennial, but we’re not going to call our fellowship off). It is about whether or not the clear meaning of any number of passages in the Old and New Testaments is true, and whether what the Bible teaches about human sexuality is right or wrong.
To professing Evangelical advocates of same-sex “marriage:” Stop dissembling. Reject revealed truth concerning human sexual behavior if you will. Christ does not compel faithful discipleship at the point of a gun. Just don’t pretend the Bible doesn’t say what it says or that your personal experiences and/or longings must supersede the commands of the Creator and Redeemer of the universe.
Dr. Robert Gagnon, “Jesus, Scripture, and the Myth of New-Knowledge Arguments About Homosexuality”
Jesse Johnson, “The Case Against Same-Sex Marriage”
Andrew Walker, “An Evangelical Defense of Traditional Marriage”
Rev. Peter Sprigg, “Top Ten Harms of Same-Sex Marriage”
Rob Schwarzwalder, “Leviticus, Jesus, and Homosexuality: Some Thoughts on Honest Interpretation”
Rev. Dr. David E. Prince, “Christianity and the New Liberalism: Homosexuality and the Evangelical Church”
On August 26, 2014, a three-judge panel of the U. S. Court of Appeals for the Seventh Circuit heard oral arguments in Chicago in cases challenging the marriage laws of two states, Indiana and Wisconsin.
I have already written a detailed blog post outlining highlights of the arguments and my reactions to them. However, I thought it would be worth sharing some more extended excerpts of the argument in defense of a one-man-one-woman definition of marriage. Indiana Solicitor General Thomas Fisher outlined (and Wisconsin Assistant Attorney General Timothy Samuelson endorsed) the core constitutional argument — that marriage exists as a public institution primarily to promote responsible procreation.
At oral arguments, the attorneys are frequently interrupted by the judges, so the following quotes are taken from a variety of points during the argument. The quotes are my own transcription from the audio which the court posted here.
If we don’t have marriage, what is the issue we’re dealing with? We’re dealing with widespread heterosexual activity that creates babies. There has to be a mechanism to deal with that. The mechanism is, let’s channel potentially procreative couples into relationships that are durable and longstanding and will remain together for the sake of the child… .
The question is, “What can we do to nudge heterosexual couples, who may produce children, to plan for this — to plan for the consequences and appreciate the consequences of sexual behavior?” Those consequences don’t arise with same-sex couples… . .
… [A]ll this is a reflection of biology. It’s simply that men and women make babies, and same-sex couples do not… .
We have to have a mechanism for dealing with those babies, and marriage is that mechanism.
Just when we think things are getting bad here in the United States, we observe the Danish Parliament passing a law requiring all churches to perform same-sex “marriages.” Although with this development, religious liberty is almost non-existent in Denmark, individual ministers can still opt out of performing the wedding. In that case, the church must find another minister to perform the required duties. This is no small consolation, however, for such a law in one blow nullifies any freedom of an organization or church to define itself according to its own religious values.
Some Danes are holding strong, though:
“Marriage is as old as man himself, and you can’t change something as fundamental,” … church spokesperson Christian Langballe said … . “Marriage is supposed to be between a man and a woman.”
In support of the law, one prominent businessman said “[w]e have felt a little like we were living in the Middle Ages… . I think it is positive that there is now a majority for [the law], and that there are so many priests and bishops who are in favour of it, and that the Danish population supports up about it [sic]. We have moved forward. It’s 2012.”
Notice the appeal to the idea of “majority support.” This is the very type of tyranny the Bill of Rights in the United States is meant to protect against.
While such a law would never survive a constitutional challenge in the United States, it still serves as a sober warning of forces seeking to attack a biblical worldview.
Earlier, I wrote a blog post about the May 19, 2014 decision by U. S. District Court Judge Michael J. McShane (Geiger v. Kitzhaber), striking down Oregon’s constitutional amendment defining marriage as the union of one man and one woman — one of a series of such decisions in recent months.
Those interested in why these judges, in general terms, have it wrong should refer to the recent FRC paper, Marriage on Trial: State Laws Defining Marriage as the Union of One Man and One Woman Are Valid under the Constitution of the United States.
I noted that one maddening aspect of the Geiger decision in particular was Judge McShane’s sense of certainty in asserting things which are either a) blatantly false, or b) inherently unknowable.
In the former category (blatantly false) is virtually everything McShane says about the research on children raised by homosexual parents, including his declaration that “children fare the same whether raised by opposite-gender or same-gender couples.”
On the issue of homosexual parenting, however, McShane has a body of methodologically flawed and biased research that tends to support his view, as well as a collection of ideologically-driven policy statements by large professional organizations.
Even less defensible, however, are the blanket statements he made about the impact redefining marriage would have on the institution of marriage in the future — or rather, the lack of impact it would have.
For example, McShane declared:
“Opposite-sex couples will continue to choose to have children responsibly or not, and those considerations are not impacted in any way by whether same-gender couples are allowed to marry.”
Quoting another judge on the next page, McShane added:
“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.”
To both of these statements, my response is: “How can you possibly know?”
Decisions about public policy issues (which are actually not the purview of judges — but that’s for another piece) must, of course, rest on at least some informed predictions of what the consequences of a particular course of action will be.
I made my own set of predictions about the consequences of redefining marriage in a 2011 FRC booklet, The Top Ten Harms of Same-Sex “Marriage.” My predictions directly contradicted those made by Judge McShane, and included these points:
However, there are two key differences between my predictions and McShane’s. I, at least, qualified them with the statement that they were “ways in which society could be harmed by legalizing same-sex ‘marriage’” (emphasis added), whereas McShane declared dogmatically what “will” and “will not” take place. In addition, he did so in the absence of any supporting evidence, whereas I offered specific, tangible evidence in support of my predictions.
Let me offer an updated overview of at least one of these issues, perhaps the most fundamental one. McShane declares, “Opposite-sex couples will continue to choose to have children . . .”
Will they? Of course, we may assume that some will continue to do so, but birth rates in many countries have been falling, with negative consequences already evident or easy to anticipate. (See, for instance, the books The Empty Cradle by Philip Longman, and What to Expect When No One’s Expecting by Jonathan V. Last.)
Would same-sex “marriage” result in lower birth rates? It is too early to identify a causal relationship between the two. It may be that a retreat from a procreative view of marriage contributes to both declining birth rates and the redefinition of marriage to include intrinsically non-procreative relationships. Yet while there are multiple confounding factors at work, there is evidence of at least a correlation between redefining marriage to include homosexual couples and lower birth and fertility rates.
For example, early this year, I researched the latest state-by-state data in the U.S. regarding three key measures of what we might call “reproductivity.” The “birth rate” as such represents the number of annual births per 1,000 total population. The “general fertility rate” is the number of annual births per 1,000 women aged 15-44 years (a general estimate of the childbearing years). Finally, the “total fertility rate” represents the “estimated number of births over a woman’s lifetime” (per 1,000 women).
The most recent national data available, published in December 2013, was a final report for 2012. I took the state data reported and listed the states in rank order for each of the three measures. I then compared these lists with the list of U.S. states that had authorized the issuance of marriage licenses to same-sex couples. Omitting states with recent (2014) court rulings, but including Illinois (which did not issue such licenses until this week but whose legislature authorized the change last year), there were seventeen states that had redefined marriage. Here is how they stacked up, compared to those states retaining a one-man-one-woman definition.
With respect to the birth rate:
With respect to the general fertility rate:
With respect to the total fertility rate:
Judge McShane should re-think his certainty that redefining marriage would have no impact on the larger institution.
Advocates for changing the fundamental definition of marriage as the union of a man and a woman in order to include homosexual relationships have been encouraged by two recent decisions by federal district court judges.
On December 20, Judge Robert J. Shelby ruled that Utah’s state constitutional amendment defining marriage as the union of one man and one woman violates the U.S. Constitution. On January 14, Judge Terence C. Kern said the same thing about the Oklahoma marriage amendment.
However, one odd aspect of both rulings is their failure to cite one of the most relevant precedents regarding the constitutionality of state definitions of marriage as a male-female union.
Only two federal appellate courts have ever ruled on the constitutionality of a state law defining marriage as the union of a man and a woman. One was the U.S. Court of Appeals for the Ninth Circuit, which in 2012 ruled (on narrow grounds specific to California) that California’s marriage amendment “Proposition 8” was unconstitutional.
However, in one of two major decisions on marriage in 2013, the U.S. Supreme Court vacated the Ninth Circuit ruling, on grounds that the proponents of Proposition 8 had lacked proper standing to appeal a district court decision. (Liberal state officials had refused to defend their own constitution at all.)
With the Ninth Circuit’s ruling having been effectively wiped off the books, the only remaining federal appeals court precedent involves a challenge to Nebraska’s marriage amendment. In that case, too, a district court judge, Joseph F. Bataillon, ruled in 2005 that the amendment was unconstitutional.
However, a year later, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit overturned Judge Bataillon’s decision and upheld the Nebraska amendment. This 2006 decision thus remains the highest federal court ruling with a written opinion on state definitions of marriage as one man and one woman.
Yet oddly, neither Judge Shelby in Utah nor Judge Kern in Oklahoma saw fit to even mention this decision. Neither judge’s district is in the Eighth Circuit (both are in the Tenth), so the Bruning case is not binding upon them — but given the relative dearth of such cases that have reached the federal appellate level, it seems odd that it not be mentioned at all.
Below are some excerpts from the opinion, written by Chief Judge James B. Loken:
Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)
. . .
The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles [New York, 2006]; Morrison v. Sadler, [Indiana, 2005]. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.3
The district court rejected the State’s justification as being “at once too broad and too narrow.” But under rational-basis review, “Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required.” Vance v. Bradley (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. “We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” [Vance].
. . .
Appellees argue that § 29 [the marriage amendment] does not rationally advance this purported state interest because “prohibiting protection for gay people’s relationships” does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29’s only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws — to encourage heterosexual couples to bear and raise children in committed marriage relationships.
. . .
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.)
. . .
We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.