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Religious Tolerance logo

The Obergefell v. Hodges case before the U.S. Supreme Court
involving appeals of 4 same-sex marriage cases, from Kentucky,
Michigan, Ohio, & Tennessee.

Part 21: 2015-APR to JUN:
What are the Supreme Court's options on SSM?
Webmaster's prediction on the ruling.
If SSM is legalized across the U.S., why would
God not have prevented it from happening?
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We use the acronym "SSM" to represent "same-sex marriage."
"LGBT" refers to lesbians, gays, bisexuals, transgender persons
and transsexuals. "LGB" refers to lesbians, gays, and bisexuals.

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This topic is continued from the previous essay which
describes the hearing before the U.S. Supreme Court

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same-sex marriage symbol What are the Supreme Court's options on SSM?

There are three obvious rulings from which the High Court could select:

  1. There is general agreement that states have the authority to pass laws limiting who can marry within their borders. For example, they can place a minimum age for persons to marry. They can also restrict marriage to couples according to their consanguinity. and prohibit couples from marrying if they are too closely related. All states prohibit brothers and sisters from marrying; many prohibit first cousins as well. Finally, the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution require federal, state, and local governments to treat people equally. The U.S. Supreme Court could rule in Obergefell that these clauses require that qualified same-sex couples must be free to marry. This would automatically require that the remaining 13 states and 4 territories that currently ban same-sex marriages must attain marriage equality.

  2. The High Court could leave the same-sex marriage in place, but require all states to recognize marriages by same-sex couples that have been legally solemnized out-of-state. This would require same-sex engaged couples to travel to another state or territory, get married there, and return home where their state would be required to recognize their marriage.

  3. The U.S. Supreme Court could return the Obergefell case to the 6th U.S. Circuit Court of Appeals, with the instruction that the 6th Circuit reconsider the case with the requirement that they apply "strict scrutiny" to their prior decision. Strict scrutiny is routinely applied while considering the constitutionality of laws that treat people differently according to certain criteria, like their gender. Strict scrutiny requires overwhelming evidence that such discrimination can be justified under the 14th Amendment. The end result of such a ruling would be that the 6th Circuit Court would almost certainly reverse their prior decision and legalize same-sex marriages in Kentucky, Michigan, Ohio, and Tennessee. Cases in states under the jurisdiction of the 5th, 8th, 9th, and 11th Circuit Courts would be certain to issue rulings in currently active cases, implementing marriage equality throughout the South, Midwest, and Pacific, overturning SSM bans throughout the country. It would take many months to do so. This would give the public time to get used to the change. It would also strengthen greatly future claims that the LGBT community must not be discriminated against in non-marriage matters. This could be a major win for the LGBT community over time, even though it would not give them an immediate victory over marriage.

There are also many other rulings that the High Court could select from that are probably less likely.

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This webmaster's prediction of the high court's ruling, (for what it is worth):

The author of this essay had long felt that the decision, which is due in late June or early July, will be 5 to 4 in favor of:

  • Allowing same-sex couples to marry across all 50 states, five territories, and the District of Columbia -- all the jurisdictions that make up the United States, and

  • Requiring states to recognize marriages by same-sex couples that have been legally solemnized out of state.

Such a decision would have resemblances to two other major rulings affecting the LGBT community during this century which were also decided with a 5 to 4 vote:

  • In 2003-JUN, the Court voted 5 to 4 in Lawrence v. Texas to reverse the court's famous 1986 decision Bowers v. Hardwick. "Bowers" had upheld a Georgia law that criminalized all adult same-gender sexual behavior in that state. Although Lawrence involved an incident in Texas, it had the effect of decriminalizing same-gender adult consensual sexual behavior across the entire country.

  • In 2013-JUN, the Court also voted 5 to 4 in Windsor v. United States to declare a major section of the federal DOMA (Defense of Marriage Act) to be unconstitutional. This allowed the federal government to make available 1,138 benefits and protections to legally married same-sex couples that had previously been restricted only to opposite-sex legally married couples.

However, even though a simple majority 5 to 4 decision would make marriage available to same-sex couples throughout the U.S., such a ruling would not be particularly secure. If one of the Court's current liberal justices were to retire and be replaced with a conservative justice, then a future decision by the high Court could easily reverse Obergefell v. Hodges. That scenario is almost guaranteed to happen if a Republican President is elected in 2016 and if the Republican party retains control of the Senate.

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IF the U.S. Supreme Court legalizes same-sex marriage across the U.S., why would God not have prevented it from happening?

The vast majority of U.S. conservative Christians, with the exception of older teens and young adults, would certainly regard the high court's ruling unfavorably.

When the U.S. Supreme Court held hearings on marriage equality during 2015-APR-28, most high court watchers seem to expect that the majority of Justices will issue a ruling in late June or early July stating that:

  • The U.S. Constitution assigns to each state or other political jurisdiction the responsibility to define which couples are eligible to marry within their borders.

  • Whatever restrictions that a given state applies to couples who wish to marry must not violate the U.S. Constitution.

  • The Due Process and Equal Protection clauses in the 14th Amendment of the U.S. Constitution require couples to be treated equally. Thus, if opposite-sex couples who are over the minimum age set by a state, are not too closely related genetically, and have sufficient funds, can obtain a marriage license, so too must the state issue a marriage license to same-sex couples, if they meet these same restrictions.

  • States must recognize the marriages of same-sex couples who have had their marriages legally solemnized out-of-state.

On 2015-APR-25, The Daily Signal published an article about the 2015 March for Marriage. 1 It was sponsored by the National Organization for Marriage, a group dedicated to preventing same-sex couples from marrying anywhere in the U.S. The march was held in Washington, DC and ended up before the U.S. Supreme Court building. Many readers of the article speculated about the future of same-sex marriage.

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Posting by the webmaster of this web site:

I added the following comment to The Daily Signal article:

"... almost all religious conservatives believe that God hates same-gender sexual behavior, and that God is all powerful, all present, and all knowing. Therefore they believe that God hates same-sex marriage, is aware that the Supreme Court's will be issuing its decision on marriage equality, and has the ability to change the minds of the Supreme Court Justices.

If the Justices approve of marriage equality in June or July, how are conservatives going to explain away that decision? That God lacks power? That he wasn't aware of the lawsuit before the court? Or perhaps (shudder) that God agrees with human sexuality researchers that homosexual or bisexual orientations are normal, natural, discovered, and fixed for a small minority of humans and that lesbians, gays, and bisexuals deserve the right to marry the person that they love and to whom they want to make a life-long commitment." 1

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If same-sex marriage becomes available across the U.S., why would God not have prevented it from happening?

If the high court approves of same-sex marriage during mid-2015, then religous conservatives may need to rethink their understanding of SSM or their understanding of God:

  • The may conclude that God is either in favor of marriage equality, or that God does not care about same-sex couples marrying. This would require a major realignment of conservative Christian beliefs.

  • They may decide that their interpretation of the six "clobber passages" in the Bible about same-gender sexual behavior, which has been in place for centuries, is wrong. They may feel forced to adopt an interpretation of these passages that more closely matches those of many liberal Christian theologians. For example, they might conclude that:
    • In Genesis 19, God killed all the seniors, adults, youths, children and babies in Sodom because the men of the city attempted to rape the visiting angels, not because the men wanted to engage in consensual same-gender sex.

    • The prohibition of gay sexual behavior in Leviticus 18 and 20 was directed only at sex with prostitutes in Pagan temples, not same-gender sexual behavior generally.

    • The prohibition in Romans 1 was only against people with a heterosexual orientation having violated their basic sexual nature by engaging in sex with persons of the same gender. That interpretation implies that sex by lesbians, gays, or bisexuals with persons of the same sex is not condemned either, because it would be in harmony with their sexual orientation and nature.

    • The condemnation of events in Sodom in Jude 7 refers to bestiality: male humans attempting to have sex with another species -- angels in this case. It is unrelated to homosexuality.

    • etc.

  • They may be forced to abandon their belief that the clobber passages in the Bible represent the inerrant word of God. Perhaps the passages were altered by copying errors, and/or intentional forgeries. They are unlikely to believe this because any admission of errors in the Bible weaken the reliability of the entire document.

  • These passages may not be intended for cultures everywhere in the world, for all time. They might reinterpret these passages as applying only to the Hebrew and early Christian culture during pre-modern times, and are not applicable today in the Western world.

  • Some might conceivably accept the beliefs held by Deists, that God created the universe, set it going, departed, and has not been involved in human affairs since. That would be a major revision to conservative beliefs about God and would thus be very unlikely to happen, even though about 20% of American adults have beliefs similar to that.

  • Some might believe that God has been unaware of marriage equality developments in the U.S. over the past decade. That is unlikely to be accepted by many conservative Christians because the vast majority believes that God is omniscient -- aware of everything that is happening. They also believe that God is omnipresent -- present everywhere -- all over the universe -- at the same time.

  • Some might conclude that God has been aware of marriage equality development in the U.S., would have wanted to stop it, but lacks the ability to do so. That is also unlikely to be accepted because the vast majority believe that God is omnipotent -- his power is unlimited.

Whatever the eventual solution to the theological conflict, it will be a difficult transition for many conservatives. There was a similar transition during the 19th century after the civil war when slavery was abolished. Many Christians at the time had supported the institution of slavery because it was recognized, allowed, regulated, and not condemned in the Bible. After human slavery was abolished in the U.S., and people were unable to continue to own other human beings as property, many supporters of slavery had to go through a major attitude readjustment and abandon their earlier beliefs in what has been called "the peculiar institution."

A similar readjustment probably occurred among many religious conservatives in 1967 when the U.S. Supreme Court issued a ruling that required interracial couples to be able to marry everywhere in the U.S.

The the high court is expected to issue its ruling in late 2015-JUN or early July, IF it legalizes same-sex marriage across the country, it will be still another difficult transition for many Christian believers.

The largest Protestant denomination in the U.S., the Southern Baptist Convention, is preparing for whatever decision the U.S. Supreme Court makes. On 2015-JUL-29, their Ethics & Religious Liberty Commission (ERLC) will hold a meeting in Austin, TX. According to the Biblical Recorder:

"The Supreme Court’s decision likely will have major implications for religious liberty and Christian ministry in America. Austin’s event speakers will try to equip followers of Christ and their churches to engage a 'post-marriage society' with gospel faithfulness, according to the ERLC.
 
Russell Moore, the ERLC’s president, called it 'a watershed moment in our nation’s history.'
 
'[R]egardless of whether our land’s highest court recognizes the unchangeable [nature of marriage] or not, we will hold steadfast,' he said in a news release. 'Even more, regardless of the decision, the church will have to learn to engage a culture with the gospel in which we cannot assume people share our same understanding of marriage. As we seek to equip churches for this task I’m thrilled to partner with this exceptional band of leaders at this event to think through what Gospel faithfulness looks like in our ever-changing culture'." 2

The event will be broadcast online starting at 2015-JUL-29 at 6 PM local time.

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This topic continues in the next essay with predictions of how
people might react if the high court approves SSM across the country.

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Alex Anderson, "Marriage Debate Marches Into Nation’s Capital Ahead of Supreme Court Case," The Daily Signal, 2015-APR-25, at: http://dailysignal.com/
  2. "Event to equip Christians after court ruling," Biblical Recorder, 2015-MAY-06, at: http://www.brnow.org/

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How you may have arrived here:

Home > Religious info. > Basic > Marriage > Same-sex marriage> same-sex marriage sub-menu > Kentucky > Supreme Court > here

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Home > "Hot" topics > Homosexuality > Same-sex marriage > same-sex marriage sub-menu > Michigan > Supreme Court > here

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Home > Religious info. > Basic > Marriage > Same-sex marriage > same-sex marriage sub-menu > Tennessee > Supreme Court > here

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Home > Religious info. > Basic > Marriage > Same-sex marriage > SSM menu > > Supreme Court > here

Home > "Hot" topics > Homosexuality > Same-sex marriage > SSM menu > > Supreme Court > here

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-APR-28
Latest update: 2015-MAY-07
Author: B.A. Robinson
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