For two and a half hours Tuesday, the Supreme Court of the United States heard oral argument on the question of redefining marriage. The court considered two legal issues: first, whether there is a fundamental right to same-sex marriage, and second, whether a state must recognize a marriage between two people of the same sex when their marriage was performed out-of-state.
Although there were many subtopics addressed, the judges, including Chief Justice John Roberts, suggested that adopting same-sex marriage would “redefine” the institution. He added that “every definition I looked up until about a dozen years ago” defined marriage as a union between a man and a woman. Yet the attorneys arguing for same-sex marriage maintained that not redefining marriage would discriminate against a class of people who should have the right to be married. This argument did not seem to relieve the judges’ concerns. Namely, same-sex marriage advocates were not able to find a standard outside of the last 12 years of court-imposed laws that guaranteed this right to same-sex couples.
Of course, not every line of questioning during oral arguments is indicative of how a particular judge will vote. So we are left with trying to read the tea leaves for now, following the trail of questions and answers in an effort to divine individual judges’ thinking on the ultimate question before the court. The good news is, the court’s hesitancy to find a new and fundamental right to same-sex marriage in the Constitution seemed unresolved – at least in oral argument.
The court also addressed a question on the religious freedom implications of finding same-sex marriage as a fundamental right. Justice Scalia opined that if same-sex couples were granted the right to marry, there ought to be a right for ministers with sincerely-held religious beliefs to decline participation in same-sex ceremonies. While this question was not a central issue in the legal arguments yesterday, it nevertheless demonstrates the court’s cognizance of the vast implications if same-sex marriage was turned into a fundamental right.
This led to the second main issue– whether a state must recognize the same-sex marriages that are performed in other states. To this question, the judges seemed to be most persuaded by examples where individual states, in the past, denied recognizing a foreign marriage that was not legal under its own laws. A salient example raised by the marriage defenders was that of a step-father who attempted to marry his step-daughter and was denied a marriage license. The court also acknowledged that the consequences of forcing other states to recognize non-traditional marriages may result in states also having to eventually recognize the marriages of polygamous groupings from different jurisdictions – a scenario that no one in the court room seemed ready to embrace.
Ultimately, the court’s decision on whether or not same-sex marriage is a fundamental right will rest on whether this Supreme Court wants to own the society-transforming implications of that decision. It seems, at least from the always elusive oral arguments, that the court just might not be not ready to do that. Please continue to pray that the wisdom of God’s design for marriage and the family will enlighten their minds and infuse their hearts on this momentous decision.