This week the United States Supreme Court announced that on March 26th it will hear the case that challenges California’s Proposition 8 law, Hollingsworth v. Perry.
When the Supreme Court of the United States (SCOTUS) decided to review two lower court cases focusing on the legal definition of marriage, the nation’s highest court thrust itself into the center of a national debate. How exactly does the U.S. law define “marriage?” More to the point, should same-sex couples have the same federal benefits afforded heterosexual married couples?
In United States v. Windsor, SCOTUS will be ruling on the constitutionality of the Defense of Marriage Act (DOMA), a federal act passed by Congress in 1996. The highest court will asks if the federal government can withhold benefits like medical leave, taxes and health insurance from same-sex couples whose marriages are legally recognized by their states of residence?
Initially, President Obama seemed to side with those seeking to repeal DOMA when he stated that it violated the Constitution’s guarantee of equal protection and would no longer be protected by the Department of Justice. However, Obama’s position has since become unclear: has expressed disappointment that North Carolina’s Amendment One (another marriage ban) passed and said that same-sex marriage is an issue that should be left up to the states.
Normally, Republicans support states rights; “homosexuality” seems to upset that positioning. The party has sought federal intervention to curtail those acts deemed to be “sinful.” They’ve found a compatriot in Supreme Court Justice Antonin Scalia, who equates laws banning sodomy with those barring bestiality and murder. Like the Republican party, he believes legislative bodies can ban what they believe to be immoral. Their definition of “immoral” tends to focus exclusively on individual sex acts, leaving aside the immorality of other sins, especially those of a corporate nature.
In the second case, Hollingsworth v Perry, SCOTUS will be asked to rule on the broader issue of the overall constitutional right of gays and lesbians to marry. When California voters approved Proposition 8, a referendum that would amend the state constitution to ban same-sex marriage, did they violate the 14th Amendment? It states: ”No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property.” Also, can the state override a state Supreme Court ruling which declared five months prior to this voter referendum that same-sex couples had a right to marry–with about 18,000 couples exercising this right?
The decision to hear these cases comes during a period when American voters continue to send mixed messages regarding extending marital rights to gay and lesbian people. In November Americans re-elected the first president in U.S. history to support marriage equality, and they cast their ballots to legalize same-sex marriage in the states of Maryland, Washington and Maine. But these wins have yet to translate into widespread acceptance of marriage equality. As reported by The Washington Post, the vast majority of states ban same-sex marriage and 31 states amended their constitutions to enshrine the traditional definition of heterosexual marriage.
Over at The New Republic, Jonathan Rauch suggests that without an overwhelming national consensus in favor of marriage equality (see Gallup’s May 2011 poll here), SCOTUS should advance history and advance the cause of LGBT equality by “butting out” and refusing to rule on this issue. Using the argument that real civil rights—durable, deeply rooted civil rights, as opposed to what James Madison called “parchment barriers”—come from consensus, not from courts. Hence he advocates that any barriers to marriage equality should be broken down by the people via legislative actions not a small group of blacke-robed judges.
Therein lies the ongoing historical debate over the role the courts should play in enacting social change. Take, for instance, abortion. Since the court’s 1973 Roe v Wade decision, ongoing state legislation restricting a woman’s access to legal abortion has torn state and federal politics and indicates that “culture war” laws like those pertaining to women’s reproductive health can be decisive when they come from the court.
Yet, back to the case of marriage equality, should the court intervene when well-funded national Christian groups use their outsized organizations and funding to influence state legislation, as such groups did in cases like Amendment One and Proposition 8?
The media often fails to note the concerns raised by advocacy organizations like the Southern Poverty Law Center, the Gay and Lesbian Alliance Against Defamation (GLAAD), and Human Rights Campaign (HRC). The organizations have diligently tracked the mission and funding streams of groups such as the National Organization for Marriage (NOM) and their influence on state and national elections.
Also, the media fails to deconstruct the far religious right fear that SCOTUS will force “homosexual” marriage upon them. Despite religious leaders’ protestations to the contrary, SCOTUS’ rulings will have no bearing on how specific denominations address the rite of Holy Matrimony. Individual clergy will still be able to deny the rite of marriage to any couple whose union would go against their individual conscience.
Furthermore, the media tend to spend undue emphasis documenting the more bizarre wing of the Christian Right, who go so far as to compare overturning DOMA with legalizing incest, noting that affirming gays is akin to encouraging pyromaniacs, preaching that LGBT people are worthy of death, and even blaming the massacre at Newtown on abortion pills and gay marriage.
Most importantly, this reporting fails to examine a more complicated and nuanced portrait of U.S. evangelicalism. When chronicling the diminished influence of Purpose Driven Life author and megachurch pastor Rick Warren, Newsweek does not analyze the role his anti-gay pronouncements may play in this shift in public acceptance. Too, Billy Graham’s armor of God got a bit chinked when the Billy Graham Evangelical Association (BGEA) took a hard turn to the right, articulating a stance against LGBT rights.
Even still, the same-sex marriage landscape remains confusing. Focus on the Family’s Jim Daley admits that they’ve lost the debate over “homosexual” marriage.
Concerns about the demise of an evangelicalism that advances the notion of same-sex couples as engaging in sinful acts run alongside a growing grassroots movement among mainline and more liberal Christian bodies that proclaims all people to be made in the image of God. (See Believe Out Loud for ongoing analysis of this theological and ecclesiological shifting.)
This battle is personified by the Rt. Rev. Gene Robinson, the former bishop of New Hampshire and the first openly gay bishop in the Anglican Communion. In his appearance on the Daily Show he laid out how the divisive issue of homosexuality really boils down to “love.” It illuminates a theological shift among mainliners–and even progressive evangelicals–that renders the search for common ground into quicksand.
The chasm appears to be growing between those who “love the sinner, not the sin” and others who feel that all are entitled to equal rites.
This piece originally appeared in The Revealer.