By / Jul 13

Before ‘Obergefell’ became forever linked to a landmark Supreme Court decision, it was the surname of Jim Obergefell. In 2013, Jim boarded a small, medically-equipped plane with his partner, John Arthur. John was dying of ALS, and the couple hoped to marry before the disease fully consumed him. However, in order to do this, the Ohio couple had to travel to Maryland, as their own state did not perform or recognize same-sex marriages. Several months after returning from their 10-minute wedding on a Maryland Tarmac, John passed away. As a result of the state’s marriage laws, Ohio refused to acknowledge Jim’s status as a widower. Financially, there was little to gain (some $255 in Social Security benefits). Jim simply wanted his home state of Ohio to dignify his relationship with legal recognition. But this event precipitated the legal battle that would fundamentally change the definition of marriage in America.

On June 26, 2015, the Supreme Court decided 5-4 in favor of Jim Obergefell, effectively establishing that state prohibitions on same-sex marriage are unconstitutional. To rule otherwise, so Justice Anthony Kennedy concluded, would mean “condemning” gay and lesbian Americans to “loneliness.” In his concluding paragraph, which Slate praised as “one of the most beautiful passages you’ll likely read in a court case,” Kennedy declared, “Marriage responds to the universal fear that a lonely person might call out only to find no one there.”

Many analyses of Obergefell have pointed out contradictions in the ruling and fallacies in the cultural logic that legitimated it. This is good and necessary. Yet as millennial Christians, we do not find these arguments compelling. Not because they lack validity or coherence, but because such arguments fail to address the “truthiness”—a word Stephen Colbert invented to satirize our generation’s hyper-subjectivity—of Obergefell. In an interview Colbert explained, “It used to be, everyone was entitled to their own opinion, but not their own facts. But that’s not the case anymore. Facts matter not at all. Perception is everything. It’s certainty. … It’s not only that I feel it to be true, but that I feel it to be true.”[1] For our generation, addressing Obergefell in a compelling manner requires understanding its emotionally subjective nature.

As millennials, we find ourselves swept up by the story of Jim Obergefell and John Arthur; we are moved by Jim’s steadfastness and commitment to John throughout his suffering and death. Even though we are unmarried, Justice Kennedy’s rhetoric warms our hearts. Who hasn’t wrestled with loneliness? Who doesn’t long for the kind of “I am yours and you are mine” relationship vowed in marriage. And yet as Christians committed to the truth of Scripture, we can grant neither that God consecrates same-sex marriages nor that marriage is the solitary structure in which the Lord meets our need for community.

A year after Obergefell, Christians are at a crossroads of Christ and culture. Christians must once again decide if we will maintain our faith commitments even when they are in conflict with the values of our neighbors, friends, and family. While some professing Christians choose to believe or not believe certain passages of the Bible to privilege their personal understanding, this practice is predicated upon a kind of relativism which necessarily denies the objective nature of Scripture. The subjectivity of picking and choosing which passages to accept and which to ignore is both damaging and futile. Such attempts result in the creation of false gods (that tend to resemble one’s own image). Instead of equivocation, Christians should embrace the fact that the culture is changing and prepare for the uphill journey ahead.

First, those who wish to uphold the sanctity of marriage—as defined by God at creation—must be prepared for social estrangement. There may come a time when orthodox Christians are considered just as hateful and dangerous as the people of Westboro Baptist. This will, perhaps, introduce hardship for Christians as we have, in the past, easily found approval with our unbelieving neighbors. But even as we are socially marginalized, Christians can rejoice that our “backwards” beliefs progressively anticipate the future of the world under Christ’s reign.

Second, as same-sex relationships continue to gain acceptance, Christians must be prepared to stand by the Word of God. We must maintain our beliefs when confronted with America’s new reality. We will be told that same-sex marriage is no different than traditional marriage, that same-sex relationships are just as loving and healthy as heterosexual ones. And in the future, if not already, people we are close to, including family members, will profess same-sex attraction. These scenarios and others like them will present emotional challenges to our commitment to biblical truth. Yet we must not allow them to lead us to deny God’s truth by affirming same-sex marriage. Instead, let them direct us toward a more loving and understanding way of engaging this issue and approaching our same-sex attracted friends and family.

Lastly, Christians should not react to the changing culture by closing our mouths. We are called to proclaim the gospel in its fullness. We proclaim the hope of salvation generously and joyfully to all people, no matter their race, creed, gender, or sexual orientation. If we honestly believe that the gospel is true and that it has the power to radically change lives, we must confidently announce the Good News that Jesus has come to save the lost.

In a post-Obergefell America, Christians will be expected to voice approval of same-sex marriage. But we are called to tell the truth about marriage, which reflects the truth of the gospel. And we will. For someday we will stand in God’s eternal kingdom with brothers and sisters, including those who struggled with same-sex attraction, singing praises to our great and glorious God.

[1] http://www.avclub.com/article/stephen-colbert-13970

By / Jun 30

Bryan Baise

Cultural Tumult, New Imperatives

The Obergefell ruling has reinforced for me what I had already sensed before: I can no longer take base assumptions for granted. For a while it seemed safe for me to assume that kids coming into college from Christian homes and cultures were cognizant of the shifting tides. Again, this assumption was entirely on my end and should in no way be taken as an indictment on anyone else. After Obergefell, my courses related to political and cultural engagement changed. Before I would help the students work through the reasoning behind same-sex marriage, why it was problematic, and where we can provide a response that is cogent and humble, but honoring to God’s design for marriage. While that discussion continues, I’ve added additional sections on the importance of religious liberty, freedom of conscience, and even constitutional interpretative schemes. We read—slowly—Obergefell’s majority reasoning together. We ask questions along the way, look for assumptions behind the majority opinion’s reasoning, ask questions about what effects this may take if extrapolated to other cultural issues. And so on. I don’t want students walking out of my classroom without a requisite framework to be able to work through difficult cultural and political issues. This is not an exercise in activating Socratic dialogue, but rather it’s pressing them to think deeper than the blogpost or podcast about key issues that will shape their future (American) ministry contexts.

It’s important for them to be cognizant that a potential decline of religious liberty affects not merely the culture at large, but their future ministry opportunities. This is not a scare tactic, but rather an honest assessment of what’s at stake in these areas. They need to wrestle with questions like: How will the future of tax exemption status affect their ministries? How has the redefinition of marriage along the lines of emotional attachment affected the culture before Obergefell? In what ways is this ruling a confirmation of that conception? Have evangelicals sacrificed their witness and been complicit in the rise of this new definition? How? These interrogatives, and more, are important for students to have answers for, but they also embody an intellectual honesty. It’s hard to admit that evangelicals have contributed to a decline in marriage culture, but it’s necessary. Same-sex couples may have pressed for the legal change of marriage, but we’ve not always championed the traditional definition and practice in a way that prizes it’s importance for human flourishing.

In short, the effects of Obergefell for me have been to ensure that I am shaping future leaders, teachers, and ministers on how their ministry context will likely look different. In some ways this is not a bad thing. Politics and evangelicalism have not always worked well together, and the former can easily overshadow the distinctiveness of the latter. But that is not the same thing as saying that the latter should not be concerned with the former. Rather, it will hopefully have a clearer, more prophetic, minority voice than in recent decades. This, I think, serves evangelicalism better.

It’s been a year since Obergefell v. Hodges secured the right of same-sex couples to marry. We’ve had a year of national and international tragedies and tumultuous elections. We’ve seen an old-guard moral majority, desperate to make up lost cultural ground, grasp at their last remaining chance for influence, and it is pathetic. A post-Obergefell emphasis on religious liberty, freedom of conscience, and the necessity of evangelicals speaking truth to power—no matter if there is an (R) or (D) by the name—is a welcomed change.

Kim Colby

Silverlining: How Obergefell Could Result in Stronger Christian Institutions

During the Obergefell oral argument, the United States Government’s lawyer acknowledged that religious colleges’ tax-exempt status and housing policies might be in jeopardy if the Court re-defined marriage. Other challenges loom on the horizon as a result of the Court’s re-definition of marriage, as well as the expansion of some state and local nondiscrimination laws to protect gender identity and sexual orientation.

But by providing the impetus for religious institutions to review their policies and practices, the Obergefell decision may have the unintended effect of strengthening religious institutions’ ability to defend their religious liberty. For example, in response to Obergefell, the Christian Legal Society (“CLS”) prepared three webinars and sample policies for churches, schools, colleges, and other religious ministries to use to review their policies and practices in light of new legal challenges. These webinars and materials are available at www.religiouslibertyguidance.org or through the CLS website at https://clsnet.org/religious- liberty-webinars.

To reinforce its religious liberty defenses, a religious institution should consider taking six practical steps:

1. Adopt theological statements that thoughtfully detail the institution’s basic religious beliefs concerning:

a. The institution’s core theological beliefs regarding marriage, human sexuality (including all sexual conduct outside of marriage between one man and one woman), and gender identity;

b. Where spiritual authority resides within the institution regarding theological questions that may arise — specifying the person, board, or other entity within the institution that ultimately determines the institution’s doctrines and application of those doctrines in various contexts, such as personnel issues, student conduct, housing, and facilities use;

c. Christian dispute resolution, if the institution believes that Christians should not take one another to court — explaining the religious basis for its belief in alternative dispute resolution and identifying the process to be used for dispute resolution; and

d. Explaining the Christian concepts of sin, grace, repentance, and restoration, which increasingly are foreign concepts to judges and juries, who may therefore mistake the extension of grace to an employee or student in one instance, but not in another, as evidence of discrimination.

In short, the more the religious institution defines its own theological beliefs, the less likely a judge will mistakenly attribute beliefs to the institution that it does not hold or find seemingly inconsistent applications of doctrine to be evidence of discrimination.

2. Embed these doctrinal statements throughout the institution’s organizational documents. A religious school should weave its biblical philosophy of Christian education throughout every policy it adopts and every subject it teaches. A religious charity should explain how its biblical philosophy affects every aspect of its ministry. A church should clearly articulate how its religious beliefs determine which marriage ceremonies it performs, and which it does not.

3. Train staff and volunteers to apply policies consistently. Staff and volunteers should be trained in the institution’s theological doctrines and how those doctrines underpin its policies. They should understand the proper application of the institution’s policies and know who has the authority to determine how those policies apply in particular contexts.

4. Apply policies consistently. Each specific application of a policy should be documented in writing and note whether a particular application involved the extension of grace or acknowledgement of repentance.

5. Consult legal counsel. Because state and local laws vary widely, good legal counsel, who is familiar with the laws of the state and locality in which the institution operates, is a necessary investment.

6. Cultivate a positive public image. Because our culture no longer comprehends the great good that religious institutions routinely perform in their local communities, as well as nationally and internationally, a religious institution should collect and publicize stories of its ministry to others.

By / Jun 25

Five Theses on the First Anniversary of the Obergefell Decision

The Obergefell decision remains a travesty and assault on democracy.

The first anniversary of Obergefell will no doubt be celebrated throughout the media as a reminder of the universe’s long march toward (social) justice.

Whatever one may call the anniversary of Obergefell, the Christian can never allow the defacing and revision of a holy, conjugal estate such as marriage to be considered a victory for truth.

Five Philosopher-Kings’ views on marriage are no better than the views of hundreds of millions of other equally situated citizens. Let me repeat: The silence of the Constitution on marriage means that marriage must be left to the states. By refusing to hew to the Constitution’s bounds, the Supreme Court has once again overstepped its authority and is on the wrong side of the Constitution. Furthermore, by refusing to hew to the natural laws of God, the Supreme Court is once again on the wrong side of truth.

Obergefell’s fall-out is worse than Obergefell.

The #LoveisLove and #LoveWins campaign is showing that it will never be content with its victory until it settles every score.

Citizens were told that “marriage equality” was simply about treating all citizens equally. That is decidedly not the outcome thus far of Obergefell. In instances too numerous to list, LGBT activists colluding with government and cultural cronies are showing that the path to equality is paved over liberty. The gay rights movement, not dedicated to protecting any viewpoint other than its own, is currently demonstrating the lack of magnanimity that many have long feared.

The Christian response has been successfully measured.

Christians, for the most part, have responded admirably to the disaster that is Obergefell. One particular response, the ERLC’s “Here I Stand” Declaration was a massive attempt to demonstrate that Christians will dissent from a bad ruling while simultaneously working democratically to continue testifying to the truth of marriage.

Same-Sex Marriage continues to not exist (because it can’t).

Same-sex marriages aren’t actual marriages. To some, this will sound unnecessarily harsh and insensitive. But what is truth worth if it can’t be spoken when unpopular?

Under the pretentious usurpation made possible by raw judicial will, same-sex couples are awarded marriage certificates today in America. That certificates of marriage are distributed does not actually signify that a marriage has taken place. The government is as impotent at declaring squares to be circles as it is to tell citizens that marriages between same-sex persons are actual marriages. This is conceit, and as such, it will not be able to permanently suppress the truth. While it will take an untold number of years to undue Obergefell, it is impossible—in the long run—for the truth not to win.

God’s kindness still leads to repentance.

The Apostle Paul implores his audience in Romans to remember that it is God’s kindness that leads to repentance (Romans 2:4). That ought to be the presiding ethic and ethos of evangelical Christians in America. While we speak truth about the conceits of Obergefell, if we’re going to do so as Christians, it will mean that we close every statement of concern with a call to those whose consciences know that everything isn’t okay.

The refugees of the sexual revolution only continue to grow. Same-sex marriage continues the revolution by rendering incoherent the grounds and intelligibility of actual marriage. What will result is the continued culture of marriage dissolution, the atomization of society into units organized around sexual coupling or throupling, and an understanding of family life not centered around the natural family.

So what this means is continued mission in the face of mounting opposition. But if the church isn’t there to stand in the gap and tell those around them of a better way, why bother telling them that anything is wrong in the first place?

Owen Strachan

Looking Back: We Are All Activists Now

The moral revolution in American culture of June 2015 has changed our society. Laws shape mores, and so we expect that the revolution will continue apace.

Here is what stands out to me one year later: in the age when homosexual marriage passed into law, Christians have a tremendous opportunity to show their neighbors what marriage truly is. We should energetically engage the public discussion, but we should also recognize that our activism takes no greater shape than in our marriages and our homes. Every Christlike husband and every churchlike wife is a shining, shimmering glimpse of cosmically covenantal love. Every happy family ordered according to Scripture and nature presents the world with a tangible, visible argument for the goodness of God’s wisdom. In our marriages, in our homes, we are all activists.

We American evangelicals might feel restless in considering these words. We like effecting change in D.C. We like influencing policy through voting. We like winning directly and decisively in the public square. We are firmly convinced of the rightness of our views—as well we should be—and we want them supported in law. But now we have entered a different moment, when the law is against us. This is not an easy reality. We are living in an age that, with few exceptions, defies Scripture and nature in unprecedented degree. Never has the plain truth been more opposed in public than this. Marriage, we hear, is malleable, not what it has to be for the survival of humanity; identity, we are informed, is subjective, not what our bodies tell us it is. In the age of ascendant atheistic science, nothing is more anti-science than these ideas.

In such an age, our challenge is this: to recommit ourselves to happy marriages, happy families, happy churches, happy lives. When the gospel creates this way of life, we are offering the world the most powerful living apologetic we can. There is nothing so important in natural terms as a father and mother united in love. This is the cornerstone of society, and it is the gateway to security and flourishing for children. We can and must make these arguments today; but it is of equal importance to live these arguments, to show the world that our worldview yields impossible joy.

There is nothing fancy about this. We must remember, in Christ, that we are all activists. We must pray and work to be good fathers. We must pray and work to be good mothers. We must invest in our children and choose to prioritize them, over and over again. We must cultivate our marriages, laughing and dancing and repenting and cherishing every moment together. We must show the world that singleness does not depend on sexual activity for fulfillment, but on the Spirit.

It is natural today to feel profoundly discouraged about our country. The light, to paraphrase Tolkien, seems to be going down in the West. Goodness seems overshadowed. What are we to do? We need to remember what the early church knew well. If they could speak to us, their faces wizened by suffering, their bodies creaking from aches and pains caused by Roman torture-racks, they would not tell us to flee for the hills. They would urge us to plunge back into the city of man.

They would remind us that the law was against them, dead-set against them. They would tell us that they were hated and despised. They would assure us that they felt powerless, and in truth were politically powerless until Constantine reversed their fortunes. But they, holy men and women alike, would look us in the eye and remind us that by God, they turned the world upside down. They made history. They outlasted Rome. They were salt and light in a world that wanted neither, but loves its decay, its rebellion, and the darkness in which it hides its evil deeds.

Their example calls us to see afresh that the world can hate you, the state can rule against you, but that if God is with you, no human hand can hold you back. The early church was an activist church, and this activism took shape not only in public advocacy, but especially in love, kindness, fortitude, and the demonstration of godliness.

So it is with us. Obergefell has changed America. But we have a force stronger still: the gospel of grace, which has changed the world, and has changed us, and will change many who now hate and oppose us.

By / Jul 10

The writers who composed The Phantom Menace knew what they were doing when giving the nemesis of the Jedi Order the name Darth Sidious. Anything with sidious in it must be bad and the term insidious is no exception. Insidious is an adjective referring to something stealthily treacherous, and the tortured logic of the Court’s recent marriage decision was that and more. It was not only mistaken but deceptive, and not only deceptive but malevolent. Let me explain.

The Supreme Court, on June 26, 2015, issued a decision forcing all 50 states to redefine marriage contrary to history, tradition, biology, and the Bible. A bare majority of five justices did this by creating a new right in the Constitution based on nothing other than their feelings. In dissenting, Chief Justice Roberts said, “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent” but relies on nothing more than “its desire to remake society according to its own new insight.” Similarly Justice Alito observed that, “for today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.” Roberts also said that “neither petitioners nor the majority cites a single case . . . providing any basis for such a constitutional right” because “none exists,” and criticized the decision’s blindness to the difference between affirming the long established right to marry and generating a new right to force states to abandon “the meaning of marriage that has persisted in every culture throughout human history.”

How did the Court’s bare majority, consisting of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, justify their radical conclusion with no factual basis or grounding in precedent? They did it insidiously by creating a problem that did not exist in order then to fix it by fabricating a new right so “fundamental” it overrides universal history, all legal precedent, all state authority to regulate civil marriage, the democratic process, and even the religious liberty written into the Constitution. This involved a chain of logic, but the whole thing depended on that insidious first step of creating a problem needing to be solved.

The Court majority decided that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have “a fundamental right to marry.” But since traditional marriage is structured for having and raising children there is no injustice. Same-sex relationships are simply irrelevant the same way that friendships and adulterous liaisons are irrelevant. So to generate a problem needing solution Justice Kennedy, writing for the majority, redefined marriage giving it a different meaning than it had in the laws he wanted to change. His logic began by assuming the historic meaning of marriage has no rational basis and instead assumed his conclusion to reach his conclusion. That is, Kennedy began his analysis by redefining marriage in order to redefine marriage, claiming the Court simply knew (with no supporting argument) that marriage is nothing more than a bond by which couples find “freedoms” unrelated to sexual difference. That is, to generate a problem by which to reach a desired conclusion, the majority assumed the meaning and structure of marriage was already changed in the way petitioners wanted it changed before changing it. In response Chief Justice Roberts said, “today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to,” and Justice Scalia was incredulous asking, “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is (a freedom), one would think Freedom of Intimacy is abridged rather than expanded by marriage.”

By redefining marriage only to concern private happiness and contributing nothing of public significance to society (like having and raising children to become responsible citizens), the majority gave itself a problem to solve. After redefining marriage other than what marriage meant in the laws petitioners were challenging, then and only then was the majority able to say that, because there is “no difference between same- and opposite-sex couples” with respect to marriage, it therefore is unjust to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” But that was not enough. Minor problems do not warrant the Court’s attention, so the majority fabricated a new right from what they called “a better informed understanding of . . . liberty” with no precedent in history, social practice, or law. And they claimed it to be so “fundamental” it required states to abandon the way marriage was defined for millennia in order to affirm private hopes couples desiring to marry have for themselves. Reacting to this Scalia blistered the majority asking, “How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?”

The illogical logic of the Court’s marriage decision was not just deceptive but evidently malevolent in three ways. First because the majority linked invalidating procreationally structured marriage with how the Court previously invalidated racist marriage laws, which makes prospects for honoring religious liberty exceptions rather dubious. Justice Thomas said, “The majority’s inversion of the original meaning of liberty . . . threatens the religious liberty our Nation has long sought to protect,” and Roberts held that, “unfortunately, people of faith can take no comfort in the treatment they received from the majority today.” Alito added that, because “the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans” this decision “will be used by those who are determined to stamp out every vestige of dissent.” Second because it expressed distain for traditional marriage by dismissing “the connection between natural procreation and marriage” as “counterintuitive” while offering no support for such hostility. Third because it disparaged as “wholly illogical” all questions about how redefining marriage could harm the “the Nation’s social order.”

So what should we make of this? In view of the way the Court’s marriage decision realigns our most essential social institution, how should Americans committed to the common good and even more to the gospel, react to how this changes our circumstances? What does dual citizenship in a darkening world require, and how should we behave as effects of this decision play out around us? Let us determine first of all not to bemoan our marginalization or to act as victims demanding favors that only reinforce public irrelevance. Christ sent His disciples into the world “as sheep among wolves” (Matt 10:16) telling them to be shrewd and harmless. But He never bemoaned mistreatment by those in power and did not teach His disciples to seek or expect favorable treatment by pagan politicians.

Next we should realize that, no matter what else changes, nothing in this world ever lessens the obligation we have as Christians to live in the true, the good, and the beautiful. The Court did not change true marriage or anything truly true about true marriage. The true meaning, nature, purpose, and structure of marriage all endure whatever misconceptions arise and however confused laws become. The goodness of real marriage with its ability to ennoble the man-woman bond and to dignify the union of sexual difference also endures no matter how strongly others deny it. And the beauty of procreationally aligned marriage endures, not only when biological parents are blessed with well-behaved children, but still more as real marriages last into later life when children turn into responsible adults and the inner relationship of husbands and wives, nurtured over a lifetime, emerges with a glory impossible to ignore even as their bodies decline.

No matter how the culture changes, living in the truth is essential. We must not accept or support lies about the meaning, nature, and structure of marriage no matter how maligned or coerced. True marriage and truths about true marriage do not come from man and cannot be changed by society, lawyers, or whatever couples choose, and lying about marriage is not truly loving. True marriage and truths about true marriage are matters of reality that may be confused or denied but never changed, and accepting lies can never be loving no matter how strongly others want to believe them. But standing for truth is just a beginning and will not stop the culture from sliding. False views of marriage are spreading and will spread faster especially since legitimized and fueled by the insidious logic of the Court’s marriage decision. So, while standing for truth is essential, it is not enough. We must also affirm the good of real marriage. Real marriage is not just good but uniquely good. Man-woman marriage is not just “as good” or “good along with” the alleged good of same-sex intimacy, but is uniquely good in a way not just better but entailing something different the other does not have at all. And yet, while we affirm the uniquely different good of real marriage, many friends and neighbors will deny it shifting attention to other relational goods (like friendship and caring) unrelated to sexual difference. Which leads us to consider the power of beauty to penetrate this growing darkness.

Understanding the limited ability standing for the truth and good of real marriage have for getting through to a culture sinking headlong into darkness leads me to a final observation, which is that, as the insidious logic of redefined marriage spreads through our culture, the most powerful strategy we have for penetrating the darkness and leading “many to righteousness” (Dan 12:3), is not focusing so much on what is true and good (though we must affirm both and keep doing so however difficult it becomes and at whatever cost) but is focusing rather on demonstrating the undeniable beauty of real marriages—those that are practiced by imperfect human beings in ways that portray the meaning, nature, purpose, and structure of the unchanging unchangeable plan established by our Creator, Who in fact knows us better than we know ourselves, still runs things His way, and laughs at those who imagine otherwise (Ps 2:1-4).

By / Jul 8

“Fear not.”

If that phrase is good enough to open angelic messages, my little essay probably deserves no better. Jesus used it to preface prophecies about the end of the world; I doubt that today’s circumstances call for excessive dourness.

But that’s not to say that nothing momentous happened when the Supreme Court unilaterally redefined marriage.

Each time a commercial airliner departs a runway, the passengers in the back experience the rushing noise of the wind and the forces of takeoff—either exhilarating or terrifying depending upon your opinion of manned flight. Likewise, the sexual revolution of my lifetime has been marked by building momentum, increasing volume, and intense feelings for everyone taking the ride.

Up front in the cockpit, however, takeoff is a much more technical, mathematical process. Pilots, to be sure, still generally enjoy the thrill of flight, but the physics and engineering of a takeoff rather than the aesthetics demand their attentions. Careful monitoring of the gauges prompts a number of staccato “callouts” on the flight deck:

“Airspeed alive.”

“80 knots. Crosscheck.”

“V1.”

“Rotate.”

“Positive rate.”

“Gear up.”

Of these milestones in the flight, “V1” is perhaps the most cryptic (to the observer who is not a pilot) and most important. For each takeoff, the pilots calculate the velocity (V) at which the airplane is moving so fast that aborting the takeoff is no longer possible. When he hears the co-pilot announce “V1,” the pilot takes his hand off of the throttles. Stopping is now out of the question. Whatever problems develop after V1, the pilots are going to have to try to remedy them in the air.

The landmark Supreme Court case Obergefell v Hodges represents the V1 moment of the sexual revolution. If some modern-day triumvirate rivaling Whitefield, Edwards, and Wesley were to bring upon us a Third Great Awakening, it still would be too late to prevent this nation’s social experimentation by way of the removal of sexual taboos. Sure, God could do it, but it would take His doing more than even bringing revival to our land. It would take a revolution. Just as the pilots’ options and strategies change at the V1-moment, followers of Christ must acknowledge a changed universe of possibilities in the aftermath of this decision.

Advocates for same-sex marriage think that they have taken us into the future. Actually, we’ve regressed into the past in some significant ways, and history will be a great teacher for us in the days to come.

Legally, they’ve taken us back to the 1780s in terms of the fight for religious liberty. As in the 1780s, today most Americans are sympathetic toward the general idea of religious liberty. We are not back in the 1600s, some people’s lugubrious prognostications notwithstanding. As in the 1780s, the government’s will to pursue religious dissenters is probably not very strong. But just as in the 1780s, today the legal status of religious liberty is precarious. No, I do not have a law degree. I am a mere pastor, historian, and theologue. Nevertheless, when four Supreme Court Justices, including the Chief Justice himself, tell us that this decision imperils religious liberty in our nation, the idea is not a mere overreaction. Chief Justice John Roberts wrote, “Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.” And, indeed, Associate Justice Anthony Kennedy’s writings make little effort to prove him wrong. When the five-justice majority can find nothing to affirm in their majority opinion about religious free exercise that couldn’t have been covered under freedom of speech, what was a concern grows into an unmistakable destabilization of religious liberty.

Thankfully, a destabilization is not a loss. No matter what happens in upcoming elections, same-sex marriage is not going away anytime soon, but because the religious liberty questions that arise out of this ruling are untested and will be decided by future courts, upcoming elections could make a significant difference on these questions of religious liberty. Justices Scalia and Kennedy are nearly eighty years old. Justice Ginsburg has already passed that milestone. Justice Breyer is not far behind. Four justices are sympathetic toward religious liberty concerns. The next President of the United States will decide whether that number grows to the needed five or slips down further to three. To say so is not some political hack’s insistence that you must Go Out There And Vote REPUBLICAN!! Indeed, the author of today’s opinion was a Ronald Reagan nominee, so blind party allegiance is no likely solution.

Instead of committing themselves to doctrinaire party politics, the leaders of John Leland’s generation carefully and winsomely engaged the political world to lobby on behalf religious liberty for everyone. They walked away from that engagement with a pretty important accomplishment: the First Amendment. We ought to follow their examples.

We don’t do this frantically. We will serve the Lord with gladness no matter what becomes of American law, but we have an opportunity to make our nation a kinder place. This is not an act of self-preservation; religious liberty is a gift of love given to others. We can give it by making certain that the next president is someone committed to the fixed enshrinement of a full-throated religious liberty in our nation. The various candidates’ campaigns may not have much to say about that, but we owe it to our children in the faith to find out where they stand on these issues before we cast our ballots.

Socially, the advocates for the sexual revolution are quickly taking us back to first-century Rome. There and then we knew we were a minority, which we’ve always been whether we recognized it or not. Our church rolls contain many unregenerate members. That situation is about to change. A red-hot commitment to Christ is about to become the only reason why anyone would join one of our churches. We are becoming the ultimate “alternative lifestyle,” and the aftermath of today’s decision could be freeing for us, if we will allow it to be.

In order to be the liberating moment it needs to be, we must let it do more than just keep us where we are. I’ve read today from many brothers in Christ declaring that they will stand firm. Respectfully, standing firm is not what we need to do. The spot the American church occupied yesterday is not a good position to defend today. Like an ambushed soldier, we need to move—and move quickly—to some defensible piece of high ground. We need a twenty-first-century Christianity that is identifiably and radically trans-racial at the local church level like the first-century church. We need a twenty-first-century Christianity embracing the first-century positions on divorce and extramarital sex, not just from the pulpits, but also in the lives of individual Christians. We need a twenty-first-century Christianity that has conquered the greed and materialism of the twentieth century without lapsing into the unbiblical asceticism that plagued the fourth century, for example. We need a twenty-first-century Christianity featuring more stories of scandalous love than stories of scandalous love-affairs.

We need these things because we know something that the Supreme Court has failed to realize: The further our neighbors run away from God’s plan, the less—not more—happiness they are going to know. Not all those who find despair at the end of sin’s trail will know what to do about their plight, but if we will faithfully live out a first-century type of minority Christianity, many of them will see the contrast between the darkness and the light and will come to a joy they’ve never known.

A few years ago Southwest Airlines took me on a memorable journey into Houston’s Hobby Airport. Never have I known such turbulence (and I, holding a private pilot’s license, have spent quite a few hours in small planes). Upon disembarking, I looked up to the TV in the concourse and saw that the airport was under a tornado warning related to the cell through which we had just flown. Some flights make you not want to fly any more. This journey into the progressive whirlwind of marriage-can-mean-anything and meaningless-sex-as-ultimate-meaning will not forever endure. Jesus has promised us that He will work it—even it—together with everything else for the good of we who love God and are called according to His purpose.

A group of Moravian missionaries once found themselves on a terrifying journey, not in an airplane but in a vessel on a stormy sea. Everyone else panicked, but they serenely prayed. Most of the crew paid them little mind, and small was the audience in those cramped maritime quarters to witness their demeanor. Only one man’s life felt the impact of it, really, but that young man’s name was John Wesley. Seeing their radical faith and their dogged obedience, he recognized something that was missing from his own life. Could it be that God will use these times of tempest to raise up more great evangelists like him through our faithful testimony in the years to come? When the bedraggled passengers disembark this journey that will have served them so poorly, will we stand ready to welcome them into something that actually DOES restore human dignity: the gospel of Jesus Christ? If so, no matter what else attends it, that’s certainly no cause for any follower of Christ to have fear. As J. D. Greear tweeted today, “Love does win, and He has a name.”

By / Jul 3

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.

By / Jun 29

Last Friday the Supreme Court of the United States handed down a ruling that requires the legal recognition of same-sex marriage in all fifty states. As Christians, we are not of this world, but we are in it and we care about and are concerned for what happens here. And so on Sunday at Desert Springs Church, in Albuquerque, NM, we prayed in reflection on the Supreme Court's decision for our nation, for the church, and for everything in-between. Here's how we addressed the Lord when we gathered this Lords Day:

______

Father, increasingly, our nation is calling evil good and good evil, and we have a mixture of responses to this. We know who rules the world, who set the stars in their place, and who orders history. You do. The nations are as a drop in the bucket to you, and our leaders, in all of their righteous and unrighteous decisions, are ultimately working out your plan for history. And so we are calm and we are confident because history is yours, and we belong to you. And yet, though trusting you fully, we are troubled in so many ways. We look to you, yet we lament.

  • Were troubled for a nation that has set its way against the Creator. Marriage is something it has and should recognize and regulate, but marriage is not the states to change, for the state did not design human beings. It governs them. Lord, may we trust you with vigilant and happy reverence for the institution you made, even if we look crazy for it.
  • Were troubled for those who experience same-sex attraction, that the affirmation of their desires as good might put them farther from the life-saving truth about sin and salvation in the gospel. Lord, may we trust you to perform the miracle that is always yours to perform in conversionto open blind eyes and save sexual sinners of all kinds, as you have each of us.
  • Were troubled for those in our lives whom we love, people made in your image, who believe and even celebrate a lie that leads to death. There is nothing more serious and sad than this. Lord, may we trust you and your Word to convict of sin as we labor in conversation and love to commend the truth to our neighbors.
  • Were troubled for children yet unborn who will inherit a world with a more confused vision of marriage than weve known ourselves, children who will have a lesser chance of growing up with the mother and father who made them. Trends in other lands confirm what we would expect: that laws teach norms and norms matter. Lord, may we trust you to be the Father of the fatherless.
  • Were troubled for what it will mean to be wrongly identified by culture and law as bigotedfor what this will mean for our influence in the schools, as teachers, as parents on PTO boards; for what it will mean for our workplace relationships when we cant congratulate a friend on their engagement or attend their wedding; when we are ruled out for a promotion or position of influence; when certain vocations, in time, are simply out of bounds for people who believe what we do. Lord, may we trust you more as exiles in this world, as strangers and as aliens.
  • Were troubled for how this will effect the freedom of people of all revealed faithsMuslims, Jews, Christians, and otherswho hold to a traditional understanding of marriage, and for the temptation they will face to deny what they know and so sin against their conscience. Lord, may we trust you with hard work for the just freedom of all persons to believe without coercion and exercise their religion in the normal course of their lives.
  • Were troubled for how this may over time effect our work together for the common good in Christian day-cares, schools for children, Christian colleges and universities, campus ministries, military chaplain programs, adoption agencies, and even perhaps Christians who desire to foster and adopt little ones. Lord, may we trust you with persevering and painstaking work for the good of our communities.
  • Were troubled for the pressure our elected officials will feel to be on the so-called right side of history on future erosions of marriage that seem inevitable when marriage is untethered from the twoness of the sexes. Lord, may we trust you with patient, persevering, and prudent self-government.
  • Were troubled for the temptation Christians and churches will face to abandon a faithful witness by either denying the sinfulness of sin and so losing the gospel, or by affirming the truth about marriage in a way that denies its beauty and repels sinners. Neither response will ensure that we are a refuge for sinners who need refuge when sins empty promises leave them hurt, guilty, and alone. Lord, may we trust you to keep us from timidity and from pride as we boldly make known the truth about sin in order to boldly make know the only Savior who can take it away.
  • Lord, we are troubled about many things. We are even troubled by how much others are or arent troubled by these things we have lamented. Give us unity around the main things and wisdom together to know when those things are at stake. Give us patience in our listening and wisdom and winsomeness in our speech.

Thankfully, while there many reasons to lament, there are still many more to trust, and in trusting, to sing and to rejoice.

  • And so we rejoice in Christ, risen from the dead and seated. Our world changes, but he isnt going anywhere. We fear nothing for nothing can separate us from him.
  • We rejoice in Christ, who was a stranger in this world. Every difficulty for his sake confirms that we are his.
  • And we rejoice in Christ, who is building his church. May your church shine brightly with marriages that are more faithful, more pure, more loving, and more enduring, that the world may see and believe the gospel of Jesus Christ.

Glorify your Sonthe King of Glory, the Highest Judge, our Risen Lambin whose name we pray. Amen.

By / Jun 29

Friday, June 26 was a tragic day for our culture, but it was a fantastic day to have the hope of the gospel of Jesus Christ. Christians have resurrection faith that cannot be legislated away by the Supreme Court. Our responsibility to love our neighbor (Matt 22:39) and to seek the welfare of the city (Jer 29:7) where the providence of God has placed us demands that we acknowledge that the Supreme Court’s decision in Obergefell v. Hodges is an assault on societal good and human flourishing in our land. The SCOTUS’s decision to redefine marriage is the most significant culturally damning moment in our nation since Roe v. Wade.

 As Chief Justice John Roberts noted in his dissent, the decision of the majority rejects the rights of states to uphold the meaning of marriage that has persisted in every culture throughout human history. The result will not be an expansion of the definition of marriage but rather a redefinition of marriage that is so expansive that the only logical boundary is merely that it involve consenting adults. Chief Justice Roberts notes,

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of mar­riage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradi­tion, a leap from opposite-sex marriage to same-sex mar­riage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.

Make no mistake; with the legal redefinition of marriage to include same-sex marriage now the law of the land, every church in America will be forced to clarify where it stands. We are no longer discussing hypotheticals, but rather, we are facing realities. Many will capitulate and find that, in an attempt to save their congregations and Christianity itself, they lost it. Nominal Christianity will be a causality of the cultural marginalization of Christians and Christian ethics and to that we should say, “Good riddance.” But, we must be clear to our congregations that ground zero in facing the cultural challenges ahead related to the SCOTUS decision is not the White House, Supreme Court, or the halls of Congress; rather, it is the same place it has always been—the church house. The church is the only institution that Jesus promised, “the gates of hell shall not prevail against” (Matt 16:18).

Shepherds of local churches must lead their congregations toward a cruciform response to this tragic cultural decision. Pastor, do not face this situation with self-pity or mealy-mouthed platitudes; an occasion such as this is reason they call you pastor. Give them the gospel. And by them I mean yourself, your congregation, our friends who are embracing the sin of homosexuality and same-sex marriage, the culture, the politicians, and everyone else too. Be the one person who does not forget that ultimately this situation, and every situation, is to be summed up in Christ and his gospel (Eph 1:10). Giving them the gospel also means unapologetically preaching and teaching a biblical view of marriage, an institution whose existence is for the purpose of reflecting the gospel (Gen 2, Eph 5). Our cultural opponents on this issue are not our enemies; they are our mission field. We will not win them by compromising biblical truth, but neither will we win them by despising them.

Though we should weep that this decision will wreak societal havoc and amount to government sanctioned self-sabotage of its own citizens, there is a sense in which our task as Christians is not one ounce more difficult than it has ever been. We have always been involved in a mission that is beyond our ability. None of us has the power to raise the dead. None of us can heal the sick. None of us can make the blind see. None of us can save the lost. We are but instruments of the Almighty. Jesus is Lord we are not. But, Jesus is Lord and the arc of redemptive history bends toward the one who is both just and the justifier of those who have faith in him (Rom 3:26). If our pastors and churches sound like we are on the losing side of history, then we have lost far more than a Supreme Court decision.

Many discouraged believers will want to respond with bitterness and animosity, and pastors must remind them that those are not fruits of the Spirit. Congregational shepherds must also recognize that the sky-is-falling religious/political charlatan prophets of doom will see this as an entrepreneurial opportunity to capitalize on Christian outrage to build their mailing lists. We must remind our congregations that Christians ought to be the last people to fall prey to doom and gloom hopeless theology because the tomb is still empty and a court decision redefining marriage will not redefine “the marriage supper of the Lamb” (Rev 19:9). Sin, even legally protected sin, does not bring satisfaction. Paul reminds us that if we are faithful to preach the gospel, we will be able to speak to our congregations in the future and say, “And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God” (1 Cor 6:11).

In Justice Anthony Kennedy’s majority opinion, he wrote:

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. The same is true of those who oppose same-sex marriage for other reasons.

We should be thankful for this statement but sober about it as well. Essentially, he is saying that they will tolerate us as a strange prophetic minority—for now. We know that this promise may not last. But, if it does not last, we must remind our churches of our brother Paul who stated that his unjust imprisonment “served to advance the gospel” (Phil 1:12), and if we are faithful and the time comes, the same can be true of us. Pastors need to clarify church policies regarding for whom they will and will not perform a wedding ceremony and whom they will allow to use their building for a wedding ceremony. These policies need to be clear, in writing, and congregationally affirmed. Meaningful membership and willingness to do congregational church discipline will be vital as we move ahead. Faithful shepherds will prepare their congregations in advance to respond in a gospel-centered way for the inevitable visit from a same-sex legally married couple. “If the government says its okay, what can we do?” is not a gospel response but neither is “Get out.”

In other words, we must shepherd our congregations to be the church. We must be intentional about things we should have been intentional about all along. Peter wrote to a group of governmentally and culturally persecuted believers he described as “elect exiles” (1 Pet 1:1). They were looked upon with suspicion because of their commitment to Jesus the Christ and accused of hatred and treated as social outcasts. Peter reminds them of the sufferings of Christ and subsequent glories (1 Pet 1:11) and then teaches them that they will experience the same pattern (1 Pet 4:13, 5:1). Then, he concludes by simply exhorting the elders to “shepherd the flock of God that is among you” (1 Pet 5:2). Pastor, that is the need of this hour.

By / Jun 26

In a 5-4 decision today authored by Justice Kennedy and joined by the 4 liberal members of the Supreme Court, the Supreme Court found a constitutional right to same-sex marriage in the Fourteenth Amendment.

It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383–388; Skinner, 316 U. S., at 541.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

But what does this mean? What exactly does the Fourteenth Amendment protect and how did 5 Supreme Court justices determine that it includes same-sex marriage?

The Fourteenth Amendment was ratified after the Civil War in order to ensure equal protection under the law for all races and groups of people.

There are two clauses that the Court leans on in the Fourteenth Amendment to find the constitutional right to same-sex marriage: the Due Process Clause and the Equal Protection Clause.

Under the Due Process Clause, no State shall “deprive any person of life, liberty, or property, without due process of law.” As Justice Kennedy states, “The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights [… and] certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

Kennedy goes on to wax eloquently about the Supreme Court’s ability to “exercise reasoned justice” in discovering fundamental rights, the nature of injustice in our own time, and “liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Kennedy also leans heavily on precedent involving contraception and abortion in addition to previous cases involving the LGBT community to discuss marriage as one of the most intimate decisions an individual can make, even “shap[ing] an individual’s destiny.”

Under the Equal Protection Clause, the Supreme Court asks whether similarly situated people are treated similarly. If they are not, the government must show their means of treating people differently are sufficiently related to the goals it is pursuing.

For example, the government cannot treat black and white people differently for any reason because there is no justification for this unequal treatment. However, it can treat children differently from adults as long as the extent of the different treatment is related to legitimate governmental goals, e.g. protecting the innocence of children as they are developing in maturity.

The Supreme Court today claims to find a constitutional right to same-sex marriage, anchoring its arguments in both the Due Process Clause AND the Equal Protection Clause. In doing so, the Court stretches the boundaries of prior judicial principles.

The majority opinion ultimately finds that same-sex marriage is a fundamental right on “four principles and traditions”: (1) right to personal choice in marriage is “inherent in the concept of individual autonomy”; (2) “two-person union unlike any other in its importance to the committed individuals”; (3) marriage safeguards children and families; (4) marriage is a keystone to our social order.

Justice Kennedy’s majority opinion is an exercise in emotional appeal bordering on sophistry. Like he has done in iconic opinions previously such as Planned Parenthood v. Casey, Justice Kennedy’s majority opinion here is heavy on soaring rhetoric that pulls on the heartstrings while failing to be grounded in any comprehendible constitutional jurisprudence.

Justice Kennedy writes:

“The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co- extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.”

Chief Justice Roberts’ dissent best explains the confusion of this passage, writing, “Its discussion is, quite frankly, difficult to follow. […] Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases.”

The Chief Justice’s dissent contains numerous passages discussing why the Constitution contains no fundamental right to same-sex marriage:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. […]

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. […]

The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” […]

The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45. Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.

Justice Scalia, in a scathing dissent, criticizes the majority opinion’s lack of legal reasoning and misapplication of the Fourteenth Amendment:

Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. […]

Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman. […]

The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

The majority opinion and the four dissenting opinions fill up over 100 pages. Much of the dissenting opinions criticize the majority opinion’s “claim of power” and unimaginable “conception of the judicial role” in ending the “public debate over same-sex marriage display[ing] American democracy at its best.”

As Andrew Walker has written, the largest effects of this decision will be in the future political and legal battles over religious liberty. But the way the majority found the fundamental right to same-sex marriage serves as a reminder of what has come before and what could happen again in the future.

Just as the Court has dubiously found a right to abortion in the Constitution, they once again found a right to same-sex marriage in that same Constitution despite no mention of any right remotely connected to these topics. As Justice Alito’s dissent points out,

Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.

It’s an important reminder to all of us that who sits on the Supreme Court is important. Because, if five of them want to find a fundamental right in the Constitution, they will do it, regardless of whether anything in the Constitution is remotely connected to it in the slightest.

By / Jun 24

In a few days, the United States Supreme Court will issue its ruling in Obergefell v. Hodges and several related cases.[1] A majority of the Court’s members may find a right to same-sex marriage in the Fourteenth Amendment to United States Constitution. These cases come to the Court after over two decades of litigation in courts across the nation brought by the proponents of same-sex marriage and sexual-identity rights who hope that the recognition of this right will have far-reaching effects.

It is difficult to predict the full scope of downstream consequences of such a ruling, but the Court’s recognition of this new right would certainly have significant effects. Such a ruling would affect families and children, businesses and nonprofit organizations, and state and local governments throughout the country. Federal laws, state laws, and local ordinances would be changed to comply with the Court’s pronouncement. And, despite pooh-poohing by the advocates of same-sex marriage, such a ruling would also affect ministers and churches.

The downstream consequences and the likely effects upon clergy and religious organizations were among the topics discussed during oral argument on April 28, 2015. Justice Antonin Scalia was one of several members of the Court who inquired about possible consequences, and he expressed concern that such a ruling would lead to a requirement that clergy perform same-sex marriages. Here we will consider Justice Scalia’s concern. But before turning to his exchange with counsel, we will place this concern in context by considering some of the state laws governing marriage solemnization.

Marriage Solemnization Under State Law

Each state has its own laws regulating the solemnization of marriages by clergy and others, but state laws generally follow a similar pattern. The states regulate marriage by, among other things, controlling who can be married, restricting who can solemnize marriages, and imposing sanctions to enforce compliance. Because the Obergefell case arose out of Ohio, we will use Ohio’s marriage solemnization laws as an example.[2]

Controlling Who Can Marry. Under current Ohio law, a marriage may be entered into by only one man and one woman. To marry, each person must have reached a specified age (unless an exception for minors applies) and must not have a husband or a wife living. Additionally, no person may marry another person who is more closely related as kin than second cousin.[3] The parties to a marriage must apply for and obtain a marriage license from an appropriate court.[4]

Restricting Who Can Solemnize Marriages. Ordained or licensed ministers of religious societies or congregations in Ohio who are licensed to solemnize marriages and certain judges and public officials may join together as husband and wife persons who are not prohibited by law from being joined together in marriage.[5] To obtain a license to solemnize marriages, a minister must submit to the Ohio Secretary of State credentials showing that he is a regularly ordained or licensed minister of a religious society or congregation. This license authorizes the minister to solemnize marriages so long as he continues as a regular minister in that religious society or congregation. The Secretary of State must maintain records of the names of ministers who are licensed to solemnize marriages in Ohio.[6] Those who are authorized to solemnize marriages must transmit a certificate of every marriage they solemnize to the appropriate court.[7]

Imposing Sanctions to Mandate Compliance. Persons other than those legally authorized to solemnize marriage are prohibited from solemnizing marriages, and no marriage may be solemnized in Ohio without the issuance of a marriage license.[8] A person who solemnizes a marriage without proper authorization is subject to a fine and imprisonment.[9] Additionally, a person who knowingly makes false statements in a marriage license application is guilty of a minor misdemeanor offense.[10] Each marriage license issued must provide a prominent notice to the person solemnizing the marriage that a failure to return the certificate of the solemnized marriage to the issuing court within 30 days after performing the ceremony is a misdemeanor offense punishable by a fine.[11]

Justice Scalia’s Concern Regarding the Effect of the Court’s Decision on Clergy Solemnization

As noted above, during oral argument, in an exchange with Mary L. Bonauto, counsel for the petitioners, Justice Scalia expressed concern that the Court’s recognition of a constitutional right of same-sex couples to marry would require clergy to marry couples in violation of their religious beliefs.[12] The proponents of same-sex marriage, he observed, are seeking a Court-imposed rule based upon the Constitution, but he questioned the wisdom of such a constitutional requirement. In his view, the proponents could achieve the desired result under state law, which is preferable because the states can fashion their laws with appropriate exceptions.

Justice Scalia began by asking:

[O]nce it’s . . . made a matter of constitutional law, those exceptions[,] for example, . . . is it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men if indeed this Court holds that they have a constitutional right to marry? Is it conceivable that that would be allowed?

Without referencing any specific constitutional provision or any judicial precedent, Ms. Bonauto responded that the Constitution would continue to apply and that no clergy “to this day” are “forced to marry any couple[s] that they don’t want to marry. We have those protections.”[13]
Justice Scalia followed up:

[B]ut right to this day, we have never held that there is a constitutional right for these two people to marry, and the minister is—to the extent he’s conducting a civil marriage[—]he’s an instrument of the State. I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman. I will not marry two men. Which means . . . you could have ministers who . . . conduct real marriages that . . . are civilly enforceable at the National Cathedral, but not at St. Matthews downtown, because that minister refused to marry two men, and therefore, cannot be given the State power to make a real State marriage. I don’t see any . . . answer to that. I really don’t.[14]

Justice Sotomayor then asked counsel whether ministers in any states that have anti-discrimination laws have been forced to perform gay marriages. Ms. Bonauto answered: “Of course not.”[15]

Justice Scalia persisted, emphasizing that those antidiscrimination laws “are laws,” “not constitutional requirements.”[16] He added that if the states make laws recognizing such marriages, they can make exceptions so that “two men can marry, but . . . ministers who do not believe in . . . same-sex marriage will still be authorized to conduct marriages on behalf of the State.”[17] But, if same-sex marriage were to come by way of a constitutional requirement imposed by the Court, Justice Scalia surmised, such flexibility and the ability to make exceptions would be lost. Again, without referencing any specific First Amendment standard or any judicial precedent, Ms. Bonauto responded that the First Amendment establishes that “a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at.”[18]

Justice Scalia again redirected argument back to his concern. He stated that the clergyperson is “not being required to officiate. He’s just not given the State’s power, unless he agrees to use that power in . . . accordance with the Constitution. [It] seems to me you have to . . . make that exception. You can’t appoint people who will go ahead and violate the Constitution.” Ms. Bonauto acknowledged that the matter would be different with government officials who authorize marriages, “unless, again, a state decides to make some exceptions. In Connecticut, after the court permitted marriage, it did actually pass a law to deal with implementation issues, including these kinds of liberty issues.” Justice Scalia agreed, emphasizing that this was “[b]ecause it was a State law,” which permitted exceptions to be made.[19] He noted that, under state law, ministers are allowed to marry, and those marriages are effective under state law. But, he observed, if the Constitution requires that “the State must marry two men,” then such exceptions cannot be made.[20]

Justice Kagan then commented that some rabbis refuse to conduct marriages between Jews and non-Jews and that “those rabbis get the powers and privileges of the State.”[21] Justice Breyer interjected that “[i]t’s called Congress shall make no law respecting the freedom of religion . . . but . . . it leaves this question open.”[22] Justice Scalia then asked counsel whether she agreed that “ministers will not have to conduct same-sex marriages,” and she answered: “If they do not want to, that is correct. I believe that is affirmed under the First Amendment.”[23] Here again, Ms. Bonauto responded with only a general reference to the First Amendment—she did not reference any specific First Amendment test or any of the Court’s First Amendment jurisprudence.

Uncertainty Regarding Other Downstream Consequences for Religious Organizations

In addition to Justice Scalia’s concern about clergy being required to perform same-sex marriages, Chief Justice John G. Roberts, Jr. observed that there are some “harder questions,” such as whether “a religious school that has married housing [would] be required to afford such housing to same-sex couples.”[24] The Solicitor General of the United States, Donald B. Verrilli, Jr., responded that the Court’s ruling would address what the states must do (and not what religious schools must do) and that the states would then have to balance their civil rights laws and protections, decide how to enforce protections against discrimination, and determine what accommodations to allow. He also acknowledged that the states would strike different balances.

After Chief Justice Roberts noted that the federal government (like state and local governments) has enforcement power, General Verrilli conceded that “issues” would also “have to be worked out” in federal law, which does not currently ban discrimination based on sexual orientation.[25] General Verrilli recognized that questions of accommodation arise with commitment ceremonies because such ceremonies “are going to need florists and caterers.”[26]

Justice Samuel Anthony Alito, Jr. then directed discussion to Bob Jones University v. United States,[27] in which the Court had held that “a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating.” He asked General Verrilli whether “the same [would] apply to a university or a college if it opposed same-sex marriage.” The Solicitor General responded: “I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. . . . I don’t deny that, Justice Alito. It is . . . going to be an issue.”[28]

Issues Underlying Justice Scalia’s Concern

These exchanges show that neither the Court nor the attorneys know with any degree of certainty the full range of downstream consequences that will flow from a decision recognizing a right to same-sex marriage. And, judging from the shift in how he articulated his concern during his exchange with counsel, it appears that Justice Scalia’s concern was not actually that clergy would be required to perform same-sex marriages. Rather, it was the following: in the face of a newly-created constitutional right, the states will be required to change their marriage and marriage solemnization laws to ensure that clergy are not cloaked with state authority and do not act as instruments of the states when they refuse to solemnize same-sex marriages and thereby discriminate against the parties to such marriages. However, his exchange with counsel includes a number of ambiguities and does not clearly reveal the full range of issues he had in mind or the full range of purposes behind his questions. Likewise, Ms. Bonauto left a number of questions unresolved because she spoke only in general terms about the First Amendment and constitutional protection for clergy.

Because of the uncertainty in predicting consequences, these ambiguities, and the lingering questions, we cannot reach definitive conclusions regarding all of what the Court’s ruling will require of the states or what the full range of effects will be for clergy and religious institutions. Nevertheless, Justice Scalia’s exchange with counsel focuses our attention on several underlying issues and the implications of such a ruling and helps us to sketch a plausible scenario regarding the likely impact of the ruling on clergy solemnization of marriages.

Federal, State, and Local Governments Will Be Required to Comply with and Enforce the Newly-Minted Federal Constitutional Right. If the Court finds a right to same-sex marriage in the Constitution, this right will be the “law of the land.” The legislative, executive, and judicial branches of the federal government (including administrative agencies) will be required to comply, and under the Supremacy Clause of Article VI of the Constitution, so will state and local governments.

A Newly-Minted Federal Constitutional Right Will Be Enforceable Against State Governments Under Federal Law. Should the Court create this constitutional right, the proponents of same-sex marriage and sexual-identity rights are sure to challenge under federal law any state laws governing marriage and marriage solemnization that they believe deprive persons of this right or the equal protection of the laws. The waves of litigation and the adverse rulings of judges sympathetic to the proponents’ agenda will keep the pressure on state government actors to accede to the proponents’ agenda.

A Newly-Minted Federal Constitutional Right Will Force Changes to State Licensing and Regulation of Marriage Solemnization. If the Court finds such a right in the Constitution, the states will be required to change their laws regulating marriage and marriage solemnization to comply with this new federal right. Because the states grant to particular individuals and offices (including clergy) authority to solemnize marriage on behalf of the state, the states may conclude that the Court’s ruling (depending how it is written and the scope of the right it creates) (1) does not permit them to maintain licensing and regulatory regimes that sanction (by authorizing or permitting) discrimination against those seeking to enjoy this right, and (2) requires them to enforce this new right by withholding civil authority to solemnize marriage from those clergy who refuse to marry same-sex couples and thereby engage in discrimination. Thus, a likely consequence of a ruling recognizing this new right will be that the states will refuse to recognize for civil-law purposes religious marriage ceremonies performed by clergy who refuse to perform same-sex marriages. In the end, marriage solemnization will likely become bifurcated so that civil authorities perform ceremonies for purposes of civil law and clergy perform ceremonies for religious purposes but with no civil-law effect.[29]

The First Amendment and the Federal Religious Freedom Restoration Act Will Afford Little or No Protection to Those Whose Religious Freedom Is Burdened by Government Action Enforcing This Newly-Minted Federal Constitutional Right. In Employment Division v. Smith, the Court determined that the First Amendment is not violated when a neutral and generally applicable law burdens a religious practice.[30] The Smith decision, which was announced in an opinion written by Justice Scalia, substantially reduced the protection of religious freedom afforded by the First Amendment. Congress responded by passing the Religious Freedom Restoration Act (RFRA) in 1993, which imposed the strict scrutiny standard when federal, state, or local government substantially burdens religious freedom.[31] In City of Boerne v. Flores, however, the Court restricted the application of the federal RFRA to the federal government.[32] Consequently, if the Court in Obergefell finds a right to same-sex marriage, it does not appear that either the First Amendment or RFRA would mandate that the states create any exceptions allowing clergy to solemnize traditional marriages on behalf of the states and with civil-law effect while refusing to solemnize same-sex marriages.

A Ruling Creating This New Federal Constitutional Right Will Bear All the Markings of the Court’s Most Controversial Twentieth-Century Constitutional Jurisprudence. If the Court finds this right in the Constitution, the Court will impose a federal standard on the entire country that narrows the discretion and the standard-setting function of the states in an area of law and policy that has traditionally been within the nearly exclusive domain of state law. Additionally, the federal standard would be set by unelected members of the federal judiciary rather than by the politically responsive, elected representatives of the people. Furthermore, such a right would not be found in any express term of the Constitution; rather, it would be inferred from other rights. In other words, this right would be another unenumerated right, and it would join the list of other questionable unenumerated rights recognized by the Court, including the right to privacy, the right to abortion, and the right to personal autonomy and dignity.

Some Clergy Would Refuse to Perform Same-Sex Marriages Based upon Their Religious Beliefs and Would Face the Loss of Civil Authority to Solemnize Marriages on Behalf of the State and Other Possible Sanctions. Because the states by law regulate marriage and marriage solemnization, grant and withhold authority to solemnize marriages, and impose criminal penalties on those who solemnize marriages without proper authority, those who refuse to perform same-sex marriages will face adverse legal consequences ranging from denial of authority to solemnize marriages on behalf of state government to other sanctions provided for in the law.

Conclusion

A slim majority of the Court’s members may be poised to recognize a new constitutional right to same-sex marriage, and should this be the Court’s decision, the traditional pronouncement of marriage—“by the authority vested in me by God and the state of [fill in the blank], I pronounce them to be husband and wife”—may be one of the casualties. It would become a casualty because the Court’s recognition of this right may not permit the states to grant civil authority to ministers to solemnize the marriages of heterosexual couples on behalf of the state without requiring them also to solemnize the marriages of same-sex couples. This was Justice Scalia’s concern.

Such a decision by the Court would also intensify our society’s bold experiment in redefining marriage. Our society has embarked on this experiment despite the shared wisdom of a wide and diverse set of societies and civilizations across millennia that have recognized marriage as the union of one man and one woman. Heaven alone knows what the full scope of the downstream consequences of this experiment will be. Justice Scalia attempted to explore some possible effects for clergy and churches, but counsel and some members of the Court were dismissive of his concern. Perhaps the intensely analytical process of writing the Court’s opinion will help members of the Court to consider with care the wide range of consequences that would result from such a decision.

It could be that Justice Scalia was being overly cautious in expressing his concern regarding the effect of a ruling recognizing a right to same-sex marriage on marriage solemnization, but it may be that he is prescient. He was, after all, prescient in 2003 in his dissenting opinion in Lawrence v. Texas.[33] The Lawrence Court struck down a state sodomy law making it a crime for two persons of the same sex to engage in certain intimate sexual conduct and recognized the right of homosexual persons to engage freely in private conduct in the exercise of their liberty and choose to “enter upon this relationship in the confines of their homes and their private lives and still retain their dignity as free persons.” Justice Scalia disagreed, observing that the Court had entered into a moral debate and taken sides in the culture wars. He wrote that the Court’s ruling called into question every state law “against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity [that] are . . . sustainable only in light of [the Court’s earlier] validation of laws based on moral choices.” He also wrote that the Court’s opinion in Lawrence “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.”

Thus, in 2003, Justice Scalia saw United States v. Windsor[34] and Obergefell coming. It may be that he sees what is coming next should the Court rule in favor of the claims pressed by the proponents of same-sex marriage and sexual-identity rights.

[1] The related cases are Bourke v. Beshear, DeBoer v. Snyder, and Tanco v. Haslam. (The author is not aware of any relationship between him and April DeBoer, who is a named party in one case.) In these cases, the Court is considering two questions: (1) whether the Fourteenth Amendment to the United States Constitution requires the states to license marriages between two people of the same sex, and (2) whether the same amendment requires the states to recognize marriages between two people of the same sex when their marriage was lawfully licensed and performed in another state.

[2] For a discussion of marriage laws in New York, see Mark McCall, A Legal Perspective on the Marriage Pledge, at <http://www.firstthings.com/web-exclusives/2014/11/a-legal-perspective-on-the-marriage-pledge>.

[3] Ohio Rev. Code § 3101.01(A).

[4] Id. § 3101.05(A).

[5] Id. § 3101.08.

[6] Id. § 3101.11.

[7] Id. §§ 3101.13 & 3101.99(C).

[8] Id. § 3101.09.

[9] Id. § 3101.99(B).

[10] Id. §§ 3101.05(B) & 3101.99(A).

[11] Id. § 3101.14.

[12] Because Justice Scalia’s articulation of his concern evolved during the course of the exchange, all of the salient portions of this exchange are reproduced here.

[13] Transcript at page 23. For the official transcript of oral argument, see http://www.supremecourt.gov/oral_arguments/argument_transcript.aspx. All of the citations herein reference pages of the Question 1 transcript.

[14] Id. at 23-24.

[15] Id. at 24.

[16] Id.

[17] Id. at 24-25.

[18] Id. at 25.

[19] Id.

[20] Id. at 26.

[21] Id.

[22] Id. at 26-27.

[23] Id. at 27.

[24] Id. at 36.

[25] Id. at 37.

[26] Id. at 37-38.

[27] 461 U.S. 574 (1983).

[28] Transcript at 38.

[29] Some Christian ministers have already pledged themselves to “disengag[e] civil and Christian marriage in the performance of [their] pastoral duties” based upon the redefinition of marriage that has already occurred in some states. See The Marriage Pledge, at <http://www.firstthings.com/marriage-pledge>.

[30] 494 U.S. 872 (1990).

[31] 42 U.S. Code § 2000bb et seq.

[32] 521 U.S. 507 (1997).

[33] 539 U.S. 558 (2003).

[34] 133 S.Ct. 2675 (2013). In Windsor, the Court held that Section 3 of the Defense of Marriage Act is unconstitutional in that it deprives persons of equal liberty protected by the Fifth Amendment.