Marriage In the Dock

Next Tuesday, April 28, 2015, the Supreme Court of the United States (SCOTUS) is to convene to hear oral arguments in Obergefell v. Hodges. At issue before the bar is whether a state must recognize a same-sex marriage license from another jurisdiction where same-sex marriage is legal, and/or whether or not a state can refuse to issue a marriage license to a same-sex couple.

Congress attempted to address the first issue with the Defense of Marriage Act. Same-sex couples who had been legally married in states allowing it wanted to claim federal spousal benefits, and Congress felt the need to define what a legal marriage was and wasn’t. DOMA said marriage was between a woman and a man, thus invalidating federal benefits to spouses in same-sex marriages.

About two years ago Associate Justice Anthony Kennedy writing the majority opinion for the Supreme Court struck down DOMA because it showed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” I believe Justice Kennedy was right in his decision but wrong in his reasoning.

The last amendment in the Bill of Rights, the Tenth Amendment, reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Since the Constitution does not say anything about marriage it has historically and legally been a matter addressed by the individual states. DOMA should have been dismissed because Congress has no constitutional authority to regulate marriage, not because Justice Kennedy found it morally objectionable.

What has followed in the wake of Justice Kennedy’s decision is a number of lower courts, using Kennedy’s reasoning, have overturned the laws defining marriage as being between one man and one woman in several states as being unconstitutional. When, in point of fact, the Tenth Amendment gives the several states and the people of those states the constitutional right to define what marriage is or isn’t.

There exists a tension between the rights of the states and their citizens provided by the Tenth Amendment, and the states’ responsibility to provide equal protection under their laws as required by the Fourteenth Amendment. Former President Jimmy Carter said, “You cannot legislate morality.” He was wrong, the truth is someone’s morality, or lack of it, will be legislated.

“Many seek the ruler’s favor, but justice for man comes from the Lord,” Proverbs 29:26. This verse informs us that manmade governments do not guarantee justice for all. Lady justice may wear a blindfold, but do not be fooled into thinking Supreme Court Justices are deaf to the clamor of our culture. We must take solace in the truth that ultimate justice comes from God, because the real Supreme Court does not convene down here.

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