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Religious Tolerance logo

The U.S. Supreme Court legalized same-sex marriage (aka gay marriage)
across the U.S. in its ruling of The Obergefell v. Hodges case from
Kentucky, Michigan, Ohio, & Tennessee.

Part 37: 2015-JUNE-26: 3 key questions:
1. When can same-sex couples marry?
2. When will churches be forced to marry them?
3. How and why the High Court Justices disagreed.
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We use the term "gay marriage."to represent the marriage of two persons of
the same sex. We prefer "Same-sex marriage," a more inclusive term that
includes spouses with a bisexual sexual orientation, but it would make this web
site harder to find.
"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

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A key question of interest to many same-sex couples: After the High Court's decision, when will they be actually able to marry throughout the U.S.?

This is certainly a key question. The answer is that: "it depends:"

  • The courthouse in Fulton County, Georgia issued marriage licenses to three same-sex couples during the morning of JUN-26, just after the high court released its decision. A mass wedding was scheduled for that afternoon. John Eaves, the chairman of the Fulton County Commission, said:

    "This community has long worked on behalf of supporting equal rights for all of our citizens. I am overjoyed to see that belief reflected by the nation's highest court." 1

  • The Chicago Tribune reported, during the afternoon of JUN-26, that marriage licenses were being issued to same-sex couples by some county clerks in at least eight states:

    Alabama, Georgia, Mississippi, North Dakota, Ohio, South Dakota, Tennessee, and Texas.

    Some counties in Missouri have been issuing marriage licenses to same-sex couples from even before the Supreme Court ruling.

No news was available on the day of the Court ruling from:

That includes most the states in the U.S. Mainland where SSM bans had been in place before the ruling. 2

  • The U.S. Supreme Court traditionally gives the losing side in a case a three-week interval to ask for a reconsideration of a ruling. The defendants in the Obergefell case are state officials from Kentucky, Michigan, Ohio, & Tennessee. Any of the defendants could ask the high court to review the case. Whether they intend to exercise that right is unknown at this time. There is a high level of animus among some citizens in the U.S., so at least one defendant might ask for a review, even if it is motivated by a desire to delay the arrival of marriage equality in 13 states and 4 territories for a little while.

  • The situation in the state of Alabama is difficult to predict. Chief Justice Roy Moore has been fighting a battle with his state's District Court over gay marriage. He may decide to refuse to acknowledge the U.S. Supreme Court's jurisdiction or ruling in this case, and terminate any further issuing of marriage licenses to same-sex couples in his state.

  • Some legislatures among the 13 states that have banned marriage for same-sex couples are expected to attempt to pass new laws in an attempt to avoid having to solemnize gay marriages. There is no lack of dedicated, intelligent legislators who are enthusiastically devoted to prevent marriage equality from expanding to their state.

Many gay couples will seek a marriage license from their local courthouse sometime before mid-July before the High Court's three week interval expires. However, they should anticipate that they may be refused. Even if they do obtain a marriage license and marry, if the high Court is asked to review its decision, and in the VERY unlikely event that the majority of Justices vote to reverse their ruling, such couples could find themselves forcibly divorced against their will.

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Another key question of primary interest to religious and social conservatives: When will U.S. churches be required to perform a gay marriages?

This is a trick question. The answer is NEVER.

This is obvious to anyone who is familiar with the First Amendment to the U.S. Constitution. Its principle of the separation of church and state has been in effect for over two centuries. It gives every priest, minister, pastor, or other member of the clergy the ability to tell any couple who is seeking to be married to get lost. Clergy can, and often have, refused to marry a couple because they are interracial, or of the "wrong" race, or of the "wrong" religion, or of the "right" religion but the "wrong" denomination, or are judged to be too immature or insincere for marriage, or have been previously divorced, etc. A member of the clergy could even refuse to marry a couple with impunity if they have the "wrong" eye or hair color if she/he wishes. They are absolutely protected from any charges.

Of course, there are other consequences of refusing to marry couples of the same sex. The Millennial Generation -- persons who are currently 18 - 34 years of age -- represent the first generation in which most individuals know a LGBT person as a friend or family member. This cohort generally accepts minority sexual orientations (both homosexual and bisexual) as discovered, not chosen. These orientations are viewed as normal, natural, and unchangeable for a minority of people. The cohort generally accepts the findings of human sexuality researchers about the nature of homosexuality and bisexuality.

Large numbers of members of this cohort are leaving the Christian denominations in which they were raised. A main reason for this exodus is that they cannot stomach their faith group's anti-scientific teachings and human sexuality beliefs. Many are viewing the the anti-LGBT teachings as a form of bigotry similar to racism and sexism. If churches continue to reject individuals in the LGBT community as members, and refuse to solemnize gay marriages, then the denominations' rate of membership loss will probably increase.

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gavelHow and why the nine Justices of the U.S. Supreme Court disagreed about gay marriage in the case Obergefell v. Hodges:

The Due Process clause of the 14th Amendment to the U.S. Constitution requires that Congress, state Legislatures and local governments treat all citizens equally. But the Justices disagree as to whether the clause applies to marriage by same-sex couples.

  • Marriage is not mentioned in the U.S. Constitution. Because of that, all 9 Justices of the High Court and essentially all other constitutional experts -- both liberal and conservative -- agree that it is the responsibility of the individual states, territories, and the District of Columbia to define who can marry within their borders. However, they also agree that amendments to the state, territory or district Constitutions and the wording of their marriage statutes must not violate the U.S. Constitution.

    Chief Justice John Roberts wrote in his dissent opposing marriage equality:

    "... our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples ..."

    Every constitutional expert would probably agree with that statement. However, he finished that sentence by writing:

    "... or to retain the historic definition." 3

    That is, he believes that a state may freely decide to allow or ban same-sex marriages according to the will will of its legislature and/or its voters. Whichever they choose, he believes that their decision is constitutional.

It seem clear that he reached that conclusion:

    • not because citizens and/or legislatures can restrict marriage in any way that a majority of voters and/or legislators wish.

Rather it is:

    • because he believes that a ban on gay marriage does not violate the federal Constitution's 14th Amendment.

  • On the other hand, a majority of 5 Justices, including all four liberal Justices and Justice Kennedy, agreed that in the present case, Obergefell v. Hodges, the Due Process clause applies directly to marriage. The Justices believe that if states allow opposite-sex couples to marry, that they must also allow same-sex couples to marry. This is the same argument used by the majority of High Court Justices during 1967 in the case Loving v. Virginia when it legalized interracial marriage everywhere in the U.S. That year, it agreed that the 14th Amendment required that if states allowed couples of the same race to marry, that they must also allow couples of different races to marry.

  • A minority of 4 Justices believe that "marriage" in the U.S. has traditionally meant the voluntary union of one woman to one man. When the 14th Amendment to the U.S. Constitution was ratified in 1868, the historical record shows that its authors only had in mind a voluntary union between one woman and one man. Thus, the four Justices believe that the Due Process clause does not apply to gay marriages (a.k.a. same-sex marriages) today. They believe that the 14th Amendment does not require states, territories, and the district to marry same-sex couples.

In summary: Defining who can marry is a state/territory/district responsibility. However they define marriage within their borders must not violate the U.S. Constitution. A majority of five Justices believe that the 14th Amendment requires marriage equality among opposite-sex and same-sex couples. A minority of four Justices take the opposite view. The majority opinion holds.

The decision by the five Justice majority is not a matter of "legislating from the bench" as many critics of gay marriage have stated. It is a matter of determining that state bans violate the federal constitution. Deciding what laws are unconstitutional is a major function of the U.S. Supreme Court.

This is similar to a situation that is often found when two Christians disagree about a tenet of their faith. Assuming that they both refer to the same version of the Bible, they may agree on what the words in the Bible say, but they differ in the interpretation of what those words mean.

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This topic is continued in the next essay

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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. Greg Land, "Fulton County Issuing Same-Sex Marriage Licenses, Mass Ceremony Set for 1 p.m.," Daily Report, 2015-JUN-26, at: http://www.dailyreportonline.com/
  2. "Supreme Court extends gay marriage nationwide," Chicago Tribune, 2015-JUN-26, at: http://www.chicagotribune.com/
  3. "Supreme Court of the United States: Syllabus: Obergefell et al. v. Hodges..." Supreme Court, 2015-APR-26, Page 41, at: http://www.supremecourt.gov/

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How you may have arrived here:

Copyright © 2015 by Ontario Consultants on Religious Tolerance.
First posted: 2015-JUN-27
Latest update: 2015-JUN-29
Author: B.A. Robinson
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