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Gettin' on board the gay marriage train

Same-sex advocates ruled the public arena surrounding Supreme Court arguments for two landmark cases. But it’s far from certain the legal locomotion on marriage is ready to roll

Gettin' on board the gay marriage train

MOMENTUM: Advocates of redefining marriage rally at the court March 27. (Jewel Samad/AFP/Getty Images)

WASHINGTON—Edith Windsor, the 83-year-old lesbian who brought the challenge to a key provision of the Defense of Marriage Act (DOMA), walked down the front steps of the U.S. Supreme Court on the last day of the March arguments in two major marriage cases. Her hundreds of supporters outside the court blasted Alicia Keys’ hit “Girl on Fire” when they caught sight of her and let out a massive cheer. The stylishly dressed Windsor waved like a rock star and then went to a bank of microphones to talk to reporters on the court’s portico.

Paul Clement, the bespectacled conservative legal star who defended DOMA, left the court building by himself, carrying his scuffed-up leather briefcase. He slipped out to the court’s north side, avoiding the scrum of press on the south portico. Lawyers arguing court cases usually come to the court’s portico to talk to reporters after arguments. House Minority Leader Nancy Pelosi, in the courtroom to hear the DOMA proceedings, assessed Clement’s defense of the law: “What a stale role to play in life.”

The Supreme Court cases challenging two marriage laws, California’s Proposition 8 and the federal Defense of Marriage Act, are far from decided, but Clement’s back-door exit and Windsor’s parade down the front steps are emblematic of the two sides in the wake of the oral arguments—and a runaway public campaign aimed at media, politicians, and other public figures to force acceptability of same-sex marriage. Even though traditional marriage advocates represent about half of Americans, they kept a low profile because they face not only the label of dissenters, but bigots. 

In the national debate gay marriage advocates appear triumphant, even though the Supreme Court justices strongly indicated they don’t intend to issue the sweeping ruling that gay advocates want. Despite the political pressure, the justices don’t appear ready to say that same-sex marriage is a constitutional right, but instead in the arguments they sought to  narrow how they decide the questions before them.

On the first day of arguments, when the court considered Prop 8, traditional marriage advocates held a march outside the court several thousand strong—a diverse crowd, with a strong presence of Hispanic and Chinese families, indicating demographic points of strength in the movement. The challenge to Prop 8, a state voter-passed constitutional amendment that defines marriage as between a man and a woman, is the biggest threat to traditional marriage laws: If the court finds California’s law to be discriminatory against gays, that would threaten all 41 states with similar traditional marriage laws. 

On the second day of arguments, as the court considered Section 3 of DOMA, which defines marriage as between one man and one woman for the purpose of federal benefits, traditional marriage supporters were scarce outside the court. The most visible opponents of gay marriage were the Westboro Baptist protestors, holding their shocking signs that said things like “God hates fags.” The handful of Westboro protestors reinforced the message of gay-rights activists that opponents of gay marriage are first of all a minority, and secondly, bigots. Taking that message to social media, young people that same day changed their Facebook profile pictures to the Human Rights Campaign’s red logo of an equal sign, an expression of support for same-sex marriage. 

Inside the court Chief Justice John Roberts told Windsor’s lawyer, Roberta Kaplan, that the gay movement was not politically powerless as it argued it was, a characteristic of a class that deserves heightened protection from discriminatory laws. “Political figures are falling over themselves to endorse your side of the case,” Roberts said. 

Just that day Sen. Kay Hagan, D-N.C., who previously opposed same-sex marriage, announced that she had changed her views. The day before, Sen. Jon Tester, D-Mont., said the same. Nine Democratic senators who opposed same-sex marriage during the 2012 election have changed their position in the few months since. Only a handful of Democratic senators remain who support traditional marriage. 

Former Secretary of State Hillary Clinton also changed her position in March, announcing her support for same-sex marriage. Her announcement followed a March 7 Washington Post op-ed by former President Bill Clinton, who signed DOMA into law in 1996, but now says the law should be overturned. Clinton announced his support for same-sex marriage in 2009.

Former pastor Rob Bell, who challenged biblical teaching on hell in his 2011 bestseller Love Wins, challenged church teaching on marriage in a March 17 forum at Grace Cathedral in San Francisco, calling it “narrow, politically intertwined, [and] culturally ghettoized.” Saying “the ship has sailed” on same-sex marriage, he jumped aboard too in the lead-up to the Supreme Court cases. 

But orthodox religious leaders aren’t conceding the point so quickly. As Bell announced his position, Timothy Keller, the pastor of perhaps the largest theologically conservative church in New York City, Redeemer Presbyterian, addressed the issue at an Ethics and Public Policy forum for journalists in Miami. Keller said that even though views on gay marriage may be changing politically, personal religious views against homosexuality are likely to remain more rigid because they form a core part of the Bible. In that way, homosexuality is different from race, he argued. 

“[The Bible] is very clear on marriage and sex,” Keller said. “There’s an inertia in the Bible that allows a person to get a lot of leeway in politics … but it doesn’t give you a lot of leeway on those social issues and basic theology.” Keller, whose views on homosexuality and gay marriage drew wider media scrutiny after the Miami event, acknowledged the political winds are strong against even admitting to believe the concept of biblical sexuality. He cited the White House forcing Pastor Louie Giglio to remove himself from offering a prayer at the president’s inauguration this year because of Giglio’s orthodox Christian views on sexuality.

“What we were being told was, ‘You’re beyond the pale,’” Keller said. “Not just that you’re wrong, but respect for you is wrong. That was heard loud and clear in the conservative Protestant world … that we don’t even have a right to be in the public square.”

Polls show the country shifting rapidly toward greater approval of same-sex marriage, but it’s not a majority view yet. A Pew Research Center poll released before the Supreme Court arguments showed 49 percent of the country approves of legalizing same-sex marriage, compared to 33 percent a decade ago. But The Washington Post recently pointed out a “Bradley effect” in polling on the issue—when voters express support for an African-American candidate in polling because they don’t want to appear intolerant, but they’ll vote differently in the privacy of the ballot box. In the voter initiatives on same-sex marriage that passed last year, polling ahead of Election Day showed much higher margins of victory than the measures actually garnered in the end.

The high court seemed ready to let that battle in the ballot boxes continue, which is what traditional marriage supporters had advocated. Both the DOMA and Prop 8 cases are exceedingly complex, and the court has many options for resolving them. The justices could issue broad rulings, issue narrow rulings, or dismiss the cases on technicalities like standing or jurisdiction.

If the court does decide the cases on their merits, Justice Anthony Kennedy, the key vote who has written the court’s two major gay-rights opinions, seemed unwilling to go as far as the challengers to Prop 8 and DOMA want: that gay marriage is a constitutional right. During arguments he said gay marriage advocates were asking the court to go into “uncharted waters,” and he wasn’t sure which metaphor those waters led to: a “wonderful destination” or a “cliff.” 

The one thing that apparently held Kennedy back was the lack of social science evidence of the effect of gay marriage on children. In the Prop 8 arguments he noted, “We have five years of information to weigh against 2,000 years of history or more.” 

Kennedy’s reasoning parroted a brief by two conservative scholars, Leon Kass and Harvey Mansfield. The pair argued that same-sex marriage is a recent innovation (it didn’t exist anywhere until the year 2000) and not enough time has elapsed for any reliable scientific information on children raised in such households to emerge. Keller, in his Florida talk, similarly argued, “Give it 30 years … to some degree, the proof will be in the pudding.” 

The courtroom, even though it was packed in both cases, had a serenity to it that was absent in the political fervor and demonstrations outside—no cameras, no cell phones, and no signs allowed. No one stood up and made a scene. It was an intense intellectual conversation between nine justices and a bench of lawyers, punctuated by a sick Justice Sonia Sotomayor’s sneezes. Of course that serenity is by design, because the court is supposed to be immune to political noise.

But the political noise may get to Kennedy over the next couple months, in the way that some imagine political pressure played into Roberts’ surprise decision upholding the 2010 healthcare law. If Kennedy is the key vote toward legalizing same-sex marriage, having written the court’s two major gay rights opinions (Romer v. Evans in 1996 and Lawrence v. Texas in 2003), he might see himself gaining a glowing place in history. 

Still, even liberal justices Stephen Breyer and Ruth Bader Ginsburg never described same-sex marriage as a constitutional right in the arguments. Because the justices seemed uninterested in giving gay marriage the status of a civil right, the subject of potential threats to religious liberty—a key point in the debate for traditional marriage proponents—didn’t come up.

One central justification for traditional marriage laws—encouraging responsible procreation—did arise, but it didn’t gain traction with most of the justices, even though six are Catholics and three are Jews, faiths that emphasize the intertwining of marriage and procreation. Briefs from religious leaders like the National Association of Evangelicals and Catholic professor Robert George of Princeton University argued that the state should continue to preserve marriage as an institution between one man and one woman because only that relationship produces new human beings. 

The lawyers defending Prop 8 and DOMA avoided that topic. In California, for one, same-sex couples can already adopt children regardless of whether they are “married.” Charles Cooper, the lawyer defending Prop 8, dwelled briefly on the procreation argument, saying that redefining marriage would make its purpose not raising children but the “emotional needs of adults.” Culturally speaking, procreation is already distant from marriage’s purpose: In a 2010 Pew Research Center survey, 93 percent of respondents named “love” as an important reason to get married, while only 59 percent said having children was an important reason to marry.

Clement, in defending DOMA, didn’t mention procreation at all, but the other side did. Solicitor General Donald Verrilli Jr., arguing against DOMA, said the law had no connection at all to promoting procreation in marriage. The liberal justices also attacked that point. Only Roberts defended the idea: “When the institution of marriage developed historically, people didn’t get around and say, ‘Let’s have this institution, but let’s keep out homosexuals,’” Roberts said. “The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

Even if the procreation argument floundered, traditional marriage defenders may get roughly what they wanted. The National Organization for Marriage, the Family Research Council, the Alliance Defending Freedom, and the Heritage Foundation prepared a booklet on the issue ahead of the cases. Its conclusion? “The Supreme Court should let the people choose.” 

If the justices do what it looks like Kennedy may want them to do—ban the federal government from defining marriage and give that power to individual states—the political future is not necessarily inevitably and nationally victorious for gay marriage advocates. As of now, 41 states have defined marriage as between a man and a woman, and nine have legalized same-sex marriage. Despite polls shifting in favor of same-sex marriage, states remain that will probably maintain traditional marriage laws for the foreseeable future.

The morning of the DOMA arguments, several Supreme Court litigators sat in the court’s cafeteria drinking coffee and parsing the arguments. One had printed out the transcript from the previous day’s arguments, which he thumbed through as his colleagues brought up points. They made educated predictions, but landed ultimately where the most novice Supreme Court observer is: They have no idea what the court will do when it rules on the cases this summer.

Emily Belz

Emily Belz

Emily reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.

Comments

  • SamuelI
    Posted: Mon, 04/11/2016 05:47 pm

    What is this same sex "marriage" all about?
    Putting the emotional rhetoric, sound bites and one-line zingers aside, I always ask what is the same sex "marriage" issue all about.  Is it really about benefits and the right of survivorship?   Is it really about recognition or equality? I really do not think it is about any of the above.  I think it is a much deeper and more serious plot and a very well thought and patient agenda. The same sex "marriage" is not even a spiritual, Christian or religious matter, even though many of the proponents of traditional marriage are religious.
    I also wonder if the same sex "marriage" activists are willing or unwilling participants of the plot or agenda.       
    The same sex "marriage" movement is not about benefits or right of survivorship.  If that is the case why isn't the movement lobbying or fighting for those benefits?  There are many municipalities, public and private organizations that provide benefits to homosexual couple as to the heterosexual counterparts.  And all these benefits can be easily attained without changing what marriage is. The fact is no one cares if same sex couples inherit each other's possessions or share medical insurance or retirement plans.  
    The same sex "marriage" movement is not about recognition either, homosexual couples live in peace as their heterosexual counterparts in fact homosexuality has become a celebrity status for many.   
    It is also not about equality.  Equating homosexual marriage to heterosexual marriage is the same as equating apples to oranges or homosexual sex to heterosexual sex. A white person can ask to be called black all they want but that will not make them black. Same sex "marriage" is not and will not equal traditional marriage any way you look at it.  
    The same sex "marriage" is not even a Christian or a spiritual matter even though same sex "marriage" advocates are relentlessly attacking Christianity and Christians as narrow minded, backward, intolerant folks for opposing same sex "marriage".  The fact is most religious and cultural beliefs are advocates of traditional marriage.  It is a societal and cultural issue.
    First, we need to separate the personal from the corporate, the personal freedom from the societal benefits.   On the personal level no one objects to two people living together and enjoying the freedom and benefits we all have.  That fact is no one cares who or what people sleep with.  Corporately however, there is a benefit to the culture and to our civilization from stable traditional marriage.  There is no benefit to the society from homosexual union whatsoever it only benefit its participants.  Same sex "marriage" activists are part a bigger agenda.  This agenda has used political homosexuality as one of its weapons.  This bigger plot or agenda has and continues to target the traditional family structure which is the bed rock foundation of any successful, stable, safe civilization.  Civilized cultures have always and will continue (maybe not here in America) to protect the traditional marriage because it is the one single factor the will promote, improve, and keeps the culture strong.  Strong family structure benefits the entire culture not just the individual family.   This protection is not for the benefit one man and one woman as a married couple but rather for the safety and security of the children that will become the next generation. 
    The modern political homosexual movement traces it roots to an agenda that is more than 100 years old. Most gay activists in the political homosexual movement are "unwilling participant" of this agenda and they are not aware that they are being used by the bigger agenda.  They are used to promote an agenda that is not theirs and the successes of this agenda will ultimately contribute to their demise.  In fact Nikolai Lenin had a name coined to such groups, look it up.     This agenda did not start in the 60's or 70's but rather with the founders of communism from the 19th century.  See the founders of communism have always knew that they can not conquer and destroy America in a war, they knew America is a strong country not because it's military but rather because of it strong fabric, the family, the Judeo- Christian foundation and patriotism.  They knew in order to destroy America it has to be done from within and by its own people.  The principles, goals and objectives they put in place over a hundred years ago have been slowly but surely infiltrating our culture and now we are reaping the consequences of that agenda.  
    Among the more than 40 objectives the communists had, were the objectives to destroy the family by promoting pornography, easy divorce, degrading the father's role in the family and the promotion of homosexuality and other sexual life styles and make them equal to traditional marriage.   
    It is a big and grave mistake to think that the same sex "marriage" is about equality, recognition and benefits.  It is about the destruction of the fabric of America.  And if they succeed and destroy this foundation and principles, this destruction will create a void that will be filled (in my opinion) by communism or islam either of which is extremely hostile to homosexuality and will be homosexuals biggest nightmare.   
     

  • Minivan Man's picture
    Minivan Man
    Posted: Mon, 04/11/2016 05:47 pm

    It is clear in the bible that God intends marriage to be open to procreation.  As Albert Kuyerhuis states above, believers ought to take a good hard look at our own sins and repent of them.  For many, that includes the sin of treating marriage as a vehicle simply for our own pleasure.  Procreation is the primary purpose of marriage, although there are certainly wonderful secondary benefits.  When marriage simply becomes an agreement with the primary goal of a person's happiness, there is no good reason why not to allow gay "marriage".   Consider your motives when popping those birth control pills or getting the snip.  God is a god of abundance, of increase.  And he is Jehovah-jireh.  He opens and closes the womb, and he doesn't need your help.  Trust him in the matter, he provides.  Procreation is his domain.  He purchased you for his purposes, not so that you can decides who lives or not.  His ways are higher than your ways.  Yield to his purposes.  Luke 18:16; But Jesus called them to him, saying, "Let the children come to me, and do not
    hinder them, for to such belongs the kingdom of God." 

  • Midwest preacher
    Posted: Mon, 04/11/2016 05:47 pm

    Isn't it odd that those folks in Hollywood have degraded, and mocked and refused to enter into committed marriage for decades and now have decided that the thing that would make our country much more equal is to allow others to participate in what they never wanted?  

  • Anonymous (not verified)
    Posted: Mon, 04/11/2016 05:47 pm

    Is the battle against the high priests of secular and constantly public shifting morals? The health of the marriage institution is not so much dictated by what these secular high priests and public opinion say but how Christians, members of the Church, the Bride of Christ, DO. Is the Gospel of Grace resonating as a conflict solver between husband and wife, who both are called "to walk in the light as He (Christ) did" (1 John 1)? If it does, would there be so many divorces undermining the institution of marriage among Christ believers?Christ came into the world to reconcile alienated sinners, showing the extent of God's forgivingmindedness even to the murderer next to him on the cross. Well before this, as revealed in Matt 18, Christ taught how God's covenant people ought to live with one another, the implication being forgivingminded instead of score settling mindedness. There is a rich reward in asking and receiving forgiveness.Yes, the drive for the recognition of same-sex unions (do not call them marriages) undermines the God-ordained institution of marriage. Instead of rallying against this drive with banners and plackards let Christians honour God's institution in their own lives, as a living sacrifice.If Christians will do battle - we should - the first step ought to be to repent from our own personal and collective weaknesses and sins and so honour Christ who forgives.