Can Obergefell v. Hodges Make Same-Sex Marriage Real?

July 3, 2015

At a first read, Obergefell v. Hodges, the Supreme Court’s 5-4 decision declaring same-sex marriage to be a fundamental right, follows a logic that is breathtaking in its simplicity.

Whether you find this logic exhilarating, depressing, or irrelevant does not depend on what you think of gay and lesbian people, or how they should be treated. I firmly believe that discrimination on the basis of sexual orientation is unconscionable; we should treat each person in accord with the human dignity that stems from her or his creation in the image of God. I have zero sympathy with anyone who thinks their Christian faith ordinarily requires them to refrain from serving, living near, befriending, or otherwise loving gay and lesbian people (though this should not, as a matter of freedom of conscience, require Christians to participate in or celebrate gay weddings). The media and political drama notwithstanding, I believe most Christians agree with me.

And yet I, along with most Christians, not to mention Muslims, Hindus, and many other people of good will, find the Supreme Court’s decision deeply troubling.

Why? Because the decision is not really about what we think of gays and lesbians, or how we think they should be treated. In fact, it really isn’t about a fundamental right to marriage at all, despite what it purports to be.

The logic of the ruling is basically this:

1) A right does not have to be explicitly stated in the Constitution in order to be a fundamental right.

2) Marriage is a fundamental right.

3) This is the case for four reasons.

4) These four reasons also hold for same-sex couples.

5) Therefore marriage is also a fundamental right for same-sex couples.

The logic seems airtight, but it entirely sidesteps the question, What is marriage? Take a closer look. The decision identifies four reasons why marriage is recognized to be a fundamental right, and then claims that those reasons apply to same-sex couples. These are the four reasons:

The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
Marriage supports a two-person union unlike any other in its importance to the committed individuals.
Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
Marriage is a keystone of our social order.

Notice that none of these reasons attempt to define marriage. They do refer to various elements that a good definition would require, but one would be hard-pressed to define marriage on the basis of these four principles without making use of other data.

So if you thought the Court was going to wrestle seriously with the question, What is marriage?, you will be deeply disappointed.

Justice Kennedy does briefly acknowledge that the Court is engaging in the redefinition of marriage:

The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage.

Kennedy seems to admit that this is, in fact, what the Court is doing, when he responds by claiming that “there has been far more deliberation than this argument acknowledges.” But then he sidesteps the question:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights…. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

In other words, the definition of marriage aside, marriage is a fundamental right, and therefore gay and lesbian people should be allowed to marry. No democratic debate about the definition or marriage can be allowed to get in the way of such a right.

But what is marriage? The argument is written as if there are laws on the books that bar people from the institution of marriage on the basis of sexual orientation. Of course, no such laws exist, nor have they ever existed. Simply ask the many gay and lesbian men and women who have been married.

This is a fundamental point. Yes, marriage is a fundamental right, but it has never been withheld from anyone on the basis of sexual orientation. Access to marriage was not the issue facing America or the Supreme Court. This is not a question of fundamental rights.

The question at issue, rather, is whether we should redefine marriage such that we might extend it to new kinds of relationships, relationships that involve kinds of sexual activity that have absolutely nothing to do with the procreation of children. Just as the old kind of marriage was accessible to all adults, regardless of sexual orientation, so this new kind of marriage will be accessible to all adults, regardless of sexual orientation.

In other words, the question settled in Obergefell v. Hodges was not, Who should have access to marriage? It was not, How should we treat gay and lesbian couples? Benefits and legal protections could have been extended to same-sex couples without calling their relationships marriages (and indeed, many who opposed redefining marriage supported just this approach). Rather, the Supreme Court has de facto redefined marriage by sleight of hand, while it pretended simply to settle a question of access.

Many Christians are wrestling with how to respond to the decision, and especially with its implications for religious liberty. But should we not first pause to clarify the fact that what the government calls legal marriage (an intimate union between two adults) is no longer the same thing we are thinking of when we talk about natural marriage (a union centered on sexually procreative potentiality)? The Supreme Court has extended a novel legal fiction to gay and lesbian couples as a fundamental legal right. We can and must accept that for the foreseeable future. This is the new context for showing civility, friendship, and love to our gay and lesbian neighbors, and we should enter it with courage and compassion, whether we like it or not.

But the Supreme Court has no power to make gay relationships marriages in the natural sense, and we are under no obligation to pretend that it has. Before we do anything else, we need to come to grips with the fact that in the eyes of God marriage remains what it has always been, despite the myriad of ways in which human societies have disfigured it through polygamy, exploitation, slavery, and divorce. Rather than feel threatened by gay marriage, we need to remember that Christ has always called us to a counter-cultural witness to what true marriage reveals about human flourishing. And despite what the experience of Christendom might tempt us to assume, this calling is as old as the gospel itself.

Matthew J. Tuininga

Matthew J. Tuininga is the assistant professor of moral theology at Calvin Theological Seminary in Grand Rapids, Michigan. He is the author of Calvin’s Political Theology and the Public Engagement of the Church: Christ’s Two Kingdoms.  Read More