10 questions about marriage from the Supreme Court arguments

April 29, 2015

This week, the Supreme Court heard oral arguments on whether the U.S. Constitution requires the redefinition of marriage to include same-sex couples. It was an historic day. While no side can predict how the Court will rule, all evidence suggests the justices remain deeply divided on the issue of same-sex marriage.

Below are the top ten most important questions that Supreme Court justices asked lawyers from each side of the cae. We’ve provided brief answers to these questions in hopes of helping Christians think through marriage’s importance to the common good. [Note: These questions are summarized and not exact quotations from the justices.]

1. Chief Justice Roberts asked whether expanding marriage to include gay couples would lead to marriage’s redefinition.

This gets to the core issue of the debate, an issue on which many Christians and political conservatives have expressed grave concern. Indeed, once marriage is defined to include same-sex couples, marriage is no longer considered a “gendered” or “complementary” union.

The idea that men and women are different has been the singular factor that has made marriage distinct from all other human relationships. Moreover, once the male-female complementarity of marriage is removed, what is to stop additional elements of marriage—including permanency and exclusivity—to come up for debate? A Supreme Court decision to include same-sex couples in marriage would mean marriage is no longer defined according to the natural understanding or to an understanding that gives primacy to the welfare of children.

2. Justice Kennedy expressed concern about whether it was prudent for the Supreme Court to step in and change the definition of an institution that was as old, to use his language as “millennia.” In short, he asked whether it was imprudent and unwise to suggest that the Supreme Court knows better than ancient history and its belief about marriage.

Tipping his hat to the importance of history, Kennedy rightly expressed concern about rapidly advancing an idea that isn’t rooted in history. Same-sex marriage is an institution less than two decades old. There is no ideologically free social science to suggest redefining marriage will not lead to future social harms. Remember, the core issue to keep at the front of this debate is whether same-sex marriage is ultimately about elevating the desire of adults over the needs of children, because same-sex marriage denies, as a matter of principle, the ideal that children have a right to both a mother and a father. To insist that we can redefine an institution as venerable as marriage simply because Americans’ attitudes about marriage and sexual morality has changed is unwise.

3. Justice Alito expressed skepticism at the idea that traditional or biblical marriage “demeans” gay people. He asked the lawyer in support of same-sex marriage whether that was a “primary purpose.”  

This introduces an idea that has been a major point of discussion: Whether opposing same-sex marriage amounts to “animus” or “dislike” of a particular group of people. This is undoubtedly not the reason most people support traditional marriage. Support for male-female marriage is rooted in a simple observation: Men and women are different, and those differences complement one another in a relationship that is unlike any other relationships. Only the union of a man and a woman can produce children. And once children become a reality, it serves the interest of the child for there to be a permanent union between their mother and father.

That’s why marriage has always been about binding men and women to any children their union produces. To make an observation about human nature is by no means to attribute bad motives to those who support male-female marriage. It is right and proper for the law to make accurate distinctions where such distinctions are warranted. And since same-sex couples cannot unite to form the complementary type of union of a man and woman, it is right and just for the law to recognize this distinction.

4. Along this same line of questioning, Justice Alito observed that while ancient cultures like Greece embraced homosexuality, they still held marriage as distinct. He asked, “So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?”

Alito makes an important observation. Even sexually permissive cultures held that marriage was something altogether different. This is a point that biblical marriage advocates cannot emphasize enough. Marriage is a distinct and unique pre-political institution. It is not an institution whose reality is determined by a majority of people—or a majority of justices.

Marriage is the unique union in which a man and woman come together as husband and wife, and to be father and mother to any children their union may produce. Marriage is based on the truth that men and women are different; on that biological fact that reproduction requires both a man and a woman; on the social reality that children need the differentiated love and care of a mom and dad; and on the political necessity that requires states to protect its youngest citizens. Marriage also connects each generation to the others, reminding us that we are the result of previous unions and pointing us to those who are yet to come.

And related, because the marriage debate is accused of being solely religious in nature, it should be noted that this is not a debate about religion. It encompasses religious convictions about marriage, but it goes much deeper to debates about the common good. Countless civilizations, both religious and irreligious, extending to back to the beginning of recorded human history, have all held special regard for the union of one man and one woman. They understood that only one type of relationship brought forth children. Diverse cultures and ancient philosophers—such as Socrates, Plato, Aristotle, and Plutarch—have disagreed on matters of religion and yet all reached the same conclusion about marriage.

As Christians, we shouldn’t be surprised by this consistency. Genesis reveals that marriage is a creation ordinance (Gen. 1:27-28, 2:24). The law of God is “written on the heart,” Paul tells us, so that when even those who don’t have or who don’t accept biblical revelation sometimes do the right thing, it is due to God’s self-disclosure (Rom. 2:15-16).

So the question the Court is weighing concerns the wisdom of casting aside an institution that precedes our Constitution. Are we really to believe that we’re more enlightened than all previous cultures? Should we ignore the witness of history and its testament to marriage’s uniqueness?

5. Justice Breyer hinted at perhaps the most important aspect of this particular case: Letting the states decide. He suggested that this debate is working itself out in the states, asking why not “wait and see whether in fact doing so in other states is or is not harmful to marriage?”

Breyer’s question captures a sentiment that many constitutional scholars are continuing to debate. Nothing in the Constitution requires the redefinition of marriage, and marriage policy has historically been an issue left to the states to decide. Moreover, even for those who want to redefine marriage, it should seem prudent to wait and see what happens in states with same-sex marriage and whether the radical change causes demonstrable harm. That would be a more prudent approach than rushing to nationalize the issue altogether and short-circuiting the debate.

6. Because marriage policy should always be based on sound principle, Justice Alito questioned whether redefining marriage to include same-sex couples would allow polygamous couples to marry. He asked: “What would be the logic of denying them the same right?”

Alito’s line of argument often gets scoffed at in the media, but it is an important question worth considering. If, as noted above, marriage is no longer uniquely complementary, why should marriage’s definition be restricted to only two persons? Once you adopt the revisionist philosophy there are no answers based in sound logic on why marriage should only be between two persons.

Sadly, there are now cultural movements afoot that desire to bring cultural legitimacy to polyamorous relationships (relationships with any number of partners). It is not hyperbole to suggest a future court proceeding will consider whether marriage must include such multi-partner relationships. The lawyer in defense of same-sex marriage offered a thin, unsatisfying answer to this question, one that wouldn’t pass scrutiny based on the very principle she’s using to advocate for marriage’s redefinition.

Critics dismissively call this a “slippery slope” argument. But hasn’t this slope proven to be slippery? Critics called Justice Scalia’s warning in 2003 that the Court was heading toward consideration of same-sex marriage a “slippery slope” as well, and yet here we are. Less than two years ago, the Court struck down the Defense of Marriage Act because, they ruled, marriage is a state issue. Now, the Court is considering whether to take the issue away from the states, because marriage is, it’s argued, a constitutional issue.

7. Referencing Bob Jones University’s wrong and sinful banning of interracial dating, Alito asked whether redefining marriage would eventually pose risks (such as the loss of tax-exempt status) to the religious liberty of religious institutions.

This was the most shocking moment in the arguments, one that should give people on all sides cause for concern. The Solicitor General said the question of tax exemption might well be an “issue” to be considered later. This demonstrates just how perilous the American principle of recognizing the natural right of religious liberty has become.

If a revisionist view of redefined marriage is treated as a matter of civil rights, then the government could seek to use its tax power to coerce religious institutions to violate their own God-given consciences and their constitutionally guaranteed free exercise of religion. The Founders warned us that the power to tax is the power to destroy. The Solicitor General is signaling that at least this Administration is quite open to destroying those who hold a view of marriage held by the Roman Catholic Church, the Eastern Orthodox, evangelical Protestants, Orthodox Jews, Muslims, many Sikhs and Buddhists. It was even a position held by the President himself until his most recent idealogical evolution.

8. Several of the Court’s more liberal justices pressed what the actual harms are of same-sex marriage. They seemed insistent that redefining marriage to include same-sex couples will not result in tangible harms to society. In short, they thought the state lacked sufficient purpose to deny same-sex couples the right to marry. Along the same lines, they argued that there are “dignitary harms” of denying children the opportunity to grow up in a married same-sex household.

First, the “harm” of same-sex marriage needs careful qualification. How a particular same-sex marriage will affect your marriage may indeed be very limited. But this isn’t just about the direct effects on your marriage. It is about what certain visions of marriage bring to society and teach society over time through law, culture, and academia.

A view of marriage that de-couples children from the state’s interest in marriage will serve to promote a vision of marriage that views it primarily as a vehicle for consenting adults’ desires. Same-sex marriage will probably cause no greater harm to marriage than has already happened as a result of no-fault divorce. But there’s a parallel illustration: No-fault divorce very subtly worked to redefine marriage by making marriage less permanent. Over time, that vision of marriage saturated American culture to the point of making marriage more a matter of convenience and personal fulfillment than an institution wedded to society’s stability. Unlike the era before the 1970s, divorce is now a normal feature of America. There have undoubtably been harms to the institution brought about by making marriage more dissolvable. Likewise, same-sex marriage communicates a vision of marriage that is primarily based on adult companionship. This will, over time, communicate that marriage is more about adults than about children.

Very briefly, the supposed “dignitary harms” of children who grow up in same-sex households that cannot marry does not require redefining the meaning of marriage. The democratic process can work to resolve problems in the law by overcoming issues of hospital visitation, property rights, etc, through legislative solutions. A redefinition of marriage is not required to resolve these problems. 

9. Justice Sotomayor stated that marriage is a right embedded in the Constitution. Her question was how to continue exercising that right and finding a just cause for excluding some groups from marrying and not others.

Justice Sotomayor’s question is very important and gets to the issue of equal protection provided by the Fourteenth Amendment. The question, however, is whether “equality” as proscribed means “sameness.” Opposite-sex couples, as we’ve noted above, are categorically distinct from same-sex couples. It is not an indignity or judgment to recognize they are not the same or to draw conclusions based on observations humanity has always recognized. Nor is drawing necessary distinctions a discriminatory measure when the disqualifying distinctions fail to meet the criteria for what constitutes a marriage.

Everyone agrees marriage policy should be based on equality. But every marriage policy draws lines of distinction. The Fourteenth Amendment requires that we don’t make arbitrary distinctions that serve no rational purpose. For example, individuals cannot marry their children or their cousins. The question then becomes, what makes certain distinctions just and unjust? In the common law tradition, marriage was always viewed as between a man and woman. If America wants to vote to redefine marriage to include same-sex couples that should be an issue done so through the legislative process. It is not a question for the Supreme Court to decide, because the Constitution is silent on whether equality requires the redefinition of marriage.

10. Justice Ginsberg questioned the attorney defending traditional marriage by asking whether a procreative definition of marriage required prohibiting 70-year olds from marrying (on the biological assumption that elderly individuals cannot and will not procreate).

The answer to this is quite simple. Marriage exists between a man and a woman. Not all marriages will have children; but all children need mothers and fathers. Public policy is always based on principles, and not exceptions. There is no inherent need to invalidate the marriages of elderly individuals simply because of their age. Elderly men and women still possess the essential attributes that make marriage intelligible, namely that they are male and female. Men and women do not cease being men and women simply because of their advanced age. The stability of an elderly marriage serves as a witness to coming generations of the importance and uniqueness of the one-flesh union of marriage.

Andrew T. Walker

Andrew T. Walker is associate professor of Christian ethics and apologetics at The Southern Baptist Theological Seminary and director of the Carl F. H. Henry Institute for Evangelical Engagement. He is also a research fellow with the ERLC.  Read More by this Author

Russell Moore

Russell Moore is President of the ERLC. In this role, he leads the organization in all its efforts to connect the agenda of the kingdom of Christ to the cultures of local congregations for the sake of the mission of the gospel in the world. He holds a Ph.D. in systematic … Read More