The Supreme Court Finds a Right to Homosexual Marriage

Previous article in this series: February 1, 2015, p. 211.

On June 26, 2015, the United States Supreme court issued a decision in the case of Obergefell v. Hodges,1 which dealt with the matter of the issuance of licenses for homosexual marriages. The decision was recognized as a landmark decision by those on both sides of the issue. Due to the importance of this decision, we will examine the court’s ruling closely to see how the court reached its decision, the meaning of the Court’s ruling, and the implications that the Court’s ruling has for our churches and schools.

In evaluating the implications of the Court’s decision, it is important to understand how the Court system works and what the Court does and does not do. Because of the high profile nature of this case, many commentators and media outlets have discussed the Court’s decision, and many have erroneously indicated that the Supreme Court passed a law giving homosexual couples the right to marry. Based on this view of the Court’s ruling, proponents of homosexual rights have declared that everyone is now bound to recognize the equality and rights of homosexuals. Many Christians have voiced the opinion that the magistrate has made a law and we must obey the magistrate; therefore, public officials who cannot in good conscience carry out duties such as issuance of marriage licenses must resign their office.

In the United States, the supreme law of the land is not vested in a person, but in a document. The Constitution establishes the framework for government, and limits the powers of that government in favor of the people, who rule themselves indirectly through that government. The Supreme Court, at least theoretically, does not make laws or create rights or powers. It looks to the Constitution to see if those rights or powers already exist. For example, when the Supreme Court considered the validity of the Affordable Care Act, it did not give the government the power to create the health care system, but instead found that the power already existed within the government’s power to tax the people.2

Similarly, in the Obergefell case, the Court did not purport to create any rights for homosexuals, but found that a fundamental right to marriage was already embodied in the Constitution. While this distinction may seem slight, it does have practical implications for the legal impact of the ruling, as well as the way we as Christians respond to the Court’s ruling. From a purely legal standpoint, the right of homosexuals to marry is simply another right that the courts recognize must be weighed against other rights, such as the Freedom of Religion embodied the First Amendment to the Constitution. We will discuss these competing rights later, but let us first look more closely at the Supreme Court’s ruling.

The Court was divided 5 to 4 in its decision, as is often the case on social issues in recent years. Justice Anthony Kennedy, who is often the deciding vote when the court is divided, sided with the four liberal justices and also wrote the majority opinion. The majority gave four basic reasons on which it based its recognition of a right for homosexual couples to marry. First, individual autonomy includes the right to personal choice in marriage; second, the marriage right is a fundamental right because it creates a union unlike any other; third, the right to marry safeguards families and children, since homosexuals also have children; and fourth, marriage is a keystone of our social order, and there is no difference between same or opposite-sex couples in this regard.

The Court found that this right to marry was protected by both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment was passed after the Civil War to apply to state governments some of the same restrictions on power that applied to federal government. The Equal Protection Clause provides that no state will deny any person in its jurisdiction the equal protection of the law. The Equal Protection Clause was used by the Supreme Court in the past to strike down state laws prohibiting interracial marriage.3

The Due Process Clause provides that no state will deprive any person of life, liberty, or property without due process of law. There are several aspects of Due Process, and we are familiar with the concept of due process, even in church matters. Due process is the concept that states if a person is alleged to have done something, they need to be informed of the allegation and the evidence on which it is based, and then be allowed an opportunity to present their side before the tribunal that will make the ultimate decision in the case. However, the United States Supreme Court began to base decisions on “substantive” due process, which basically means that the effect of legislation deprives citizens of fundamental rights, rather than the actual process. The majority found that marriage was such a fundamental right and that state laws prohibiting same-sex marriage violated this right.

The remaining four Justices each wrote dissenting opinions in which they criticized the majority’s legal analysis. Although all four approached the issues differently, the main thrust of their argument was that the majority was overreaching in finding that the Constitution included a fundamental right for homosexuals to marry. The concept of “substantive” due process has been often criticized in legal circles for being used to find fundamental rights that are not spelled out in the Constitution. The Court has indicated in the past that these rights are contained in the “penumbras” of the Constitution, even though they are not clearly set out.4

In light of recent lawsuits against those business owners who are unwilling to provide services for homosexual marriages, the Court’s ruling seems to guarantee that such difficulties will only increase for believers. The majority, towards the end of its opinion, made room for a right of conscience when it stated:

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 organizations and 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.

However, as Justice Alito stated in his dissent,

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.

Justice Alito ended his dissent with this warning:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

In the next installment of this article, Lord willing, we will look at the other side of this issue, namely, the First Amendment rights of churches and religious organizations to continue to oppose the sin of homosexuality. The majority in the Obergefell case itself referred to these rights, and we will look at what needs to be done for our churches, schools, and other religious organizations to avail themselves of these rights.

1 Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015).

2 National Federation of Independent Business v. Sebelius, 567 U.S. ____, 132 S. Ct 2566 (2012).

3 Loving v. Virginia, 388 U.S. 1 (1967).

4 Griswold v. Connecticut, 381 U.S. 479 (1965) (finding state prohibitions on contraceptives to be an unconstitutional invasion of privacy).