History, the Supreme Court, and Same-Sex Marriage

The 9 justices of the Supreme Court of the United States

For the last two days I have been telling my classes that we are living history in this moment. Most of us take little notice of the oral arguments being made before the Supreme Court of the United States. We recognize few of the names of cases, and even fewer names of those who have served as justices. However, Hollingsworth v. Perry and United States v. Windsor may become as familiar as Roe v. Wade or Lawrence v. Texas. In fact, the names Scalia, Kennedy, Thomas, Ginsburg, Breyer, Roberts, Alito, Sotomayor, and Kagan may become quite familiar through the years. Much of the historical significance of these cases and justices hinges not on what happened during the oral arguments on March 26–27, 2013, but on the written opinions that will likely be released in June.

The two cases, Hollingsworth v. Perry and United States v. Windsor, address one of the most controversial cultural issues of our day—same-sex marriage. Hollingsworth takes up the question of California’s Proposition 8 and whether the voter referendum approved in 2008 which outlawed same-sex marriage in the state can stand. The Windsor case is the challenge against the federal Defense of Marriage Act (DOMA) passed by Congress in 1996 and signed into law by President Bill Clinton. DOMA restricts federal marriage benefits to heterosexual marriages and only requires states to recognize heterosexual marriages.

I am the son of an attorney but not one myself so I will not attempt a legal analysis of the cases; however, I want to address some of the cultural and ethical implications of the debate.

First, the heart of the debate is the definition of marriage. As noted by Theodore B. Olson, attorney for the couples challenging Prop 8, “the label ‘marriage’ means something.” Mr. Olson is correct. Marriage has a meaning. In his argument, he tried to convince the justices that civil unions were not enough—marriage was the only acceptable label for his clients’ relationships. Chief Justice John Roberts responded to Mr. Olson by stating, “If you tell a child that somebody has to be their friend, I suppose you can force the child to say, ‘This is my friend.’ But it changes the definition of what it means to be a friend.”

Chief Justice Roberts went straight to the core issue. What is the meaning of marriage? There are essentially two approaches. Supporters of same-sex marriage typically define marriage as an intimate, emotional union between individuals. This definition would open the door to marriage for members of the same sex who self-identify as homosexual. The only standard for marriage would be emotional intimacy. By contrast, defenders of traditional marriage define marriage much more specifically than emotional union. In their book, What Is Marriage? Man and Woman: A Defense, Girgis, Anderson, and George offer what they call the conjugal definition of marriage:

There is a distinct form of personal union and corresponding way of life, historically called marriage, whose basic features do not depend on the preferences of individuals or cultures. Marriage is, of its essence, a comprehensive union: a union of will (by consent) and body (by sexual union); inherently ordered to procreation and thus the broad sharing of family life; and calling for permanent and exclusive commitment, whatever the spouses’ preferences.

Chief Justice Roberts implied by his comment that allowing same-sex marriage would completely change the definition of the term “marriage.” The change would be so significant that the historical understanding of marriage would no longer apply. This is a key element of the debate. Attaching the term “marriage” to same-sex relationships so changes the meaning of the term that it no longer carries any of its historical meaning and context.

Girgis, et al, make a couple of key observations in their definition. Marriage is comprehensive. It involves all aspects of life. It is expressed through sexual intercourse that is directed to procreation. Of course, not all heterosexual intercourse results in procreation, but all homosexual intercourse is biologically incapable of procreation. The procreation of children and rearing them are then part of the meaning of marriage, but once again, same-sex partners cannot produce their own biological children. Only in recent years, same-sex couple adoption and reproductive technologies using donor sperm or eggs have made child-rearing by same-sex couples even possible.

A change to the historical definition of marriage is required for same-sex marriage to be legalized. It is not just using the term for a new type of relationship. It is a complete change in the meaning of the term.

Second, the legalization of same-sex marriage will lead to other distortions of marriage. Most of the proponents for same-sex marriage ignore the logical implications of any legal success on their part. They believe same-sex marriage should be fairly monogamous and would never imply other forms of marriage. However, their logic is inconsistent. By redefining marriage as an intimate, emotional bond, there is no limit placed upon who can get married and how many. The legalization of same-sex marriage opens the door to polygamy, polyamory, and incestuous marriage.

Is that not simply an overreaction? Not at all. In fact, there is already a federal lawsuit in Utah calling for the decriminalization of bigamy using the exact logic of same-sex marriage. If an emotional bond between two men or two women can be called marriage, why not an emotional bond between one man and two women, or two men and one woman, or two men and two women? Or what about an emotional bond between a brother and sister or two cousins? The revised definition of marriage places no logical or biological limits.

Third, many proponents of same-sex marriage have employed civil rights language to support their cause. However, same-sex marriage is not a civil right. One of the biggest differences between the civil rights movement of the 1960’s and same-sex marriage is that the minority seeking protection today are only known by self-identification. Voddie Baucham summarizes it this way:

Determining whether or not a person is black, Native American, or female usually involves no more than visual verification. However, should doubt remain, blood tests, genetics, or a quick trip up the family tree would suffice. Not so with homosexuality. There is no evidence that can confirm or deny a person’s claims regarding sexual orientation.

If “protected class” status can only be determined by self-identification, there is no way to protect that class. In fact, that class truly does not exist in the legal sense because it cannot be identified. Co-opting the language of civil rights for this debate is an offense to minorities of all types, especially African Americans who fought so hard to gain equal rights (including the right to marry members of other ethnicities) decades ago.

So what can Christians do about this? Our first step is to affirm the truth of Scripture. Beginning in Genesis, all statements about marriage involve a man and a woman. Genesis 2:24 declares, “For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” Jesus affirmed heterosexual marriage in Matthew 19:4–6 as he states, “Have you not read that He who created them from the beginning made them male and female, . . . [quotes Gen 2:24]? So they are no longer two, but one flesh. What therefore God has joined together, let no man separate.” From the Old Testament to the New Testament, Scripture teaches marriage as a lifelong covenant between one man and one woman. We need to teach this and live it out.

Next, we need to address the sin of homosexuality. Romans 1:26–27 clears identifies homosexuality as a sin. Paul writes:

For this reason God gave them over to degrading passions; for their women exchanged the natural function for that which is unnatural, and in the same way also the men abandoned the natural function of the woman and burned in their desire toward one another, men with men committing indecent acts and receiving in their own persons the due penalty of their error.

However, homosexuality is not the unpardonable sin. Paul makes an interesting observation in 1 Corinthians 6:9–11. After giving a list of sins describing the unrighteous—including the sin of homosexuality—in v. 9–10, Paul states in v. 11, “Such were some of you; but you were washed, but you were sanctified, but you were justified in the name of the Lord Jesus Christ and in the Spirit of our God.” Even in the church in Corinth, there were former homosexuals. Their lives had been characterized by such sin, but no longer. It is our responsibility to declare the life-changing truth of the gospel and allow the Holy Spirit to do his work.

I want to remind us once again that we are living history. We are watching the world change before our very eyes. How will the Supreme Court decide? No one knows at this point. The implications, however, are clear. This will impact our culture, but God’s Word never changes. May we declare his Word with boldness no matter the cost.


Adam Liptak, “Justices Say Time May Be Wrong for Gay Marriage Case,” The New York Times, March 26, 2013.

Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York: Encounter, 2012), 6.

Voddie Baucham, “Gay Is Not the New Black,” The Gospel Coalition, July 19, 2012.

One thought on “History, the Supreme Court, and Same-Sex Marriage

  1. Well stated Evan. We are being inundated by the tug of the emotional card. Our convictions are being based on how “I” feel about a certain issue. Senator Portman is a great example. When he discovers his child is a homosexual his response is to bend the knee to social and familial pressure because of the exclusivity of what he would appear to be saying. We stand until we are labeled a homophobe.
    The logical conclusion can only be to include polygamy, incest, or whatever the latest abhorrent behavioral activity deems left out of the marriage carousel.
    The reasoning cited by G,A,and G should be included and memorized in a much needed catechism for understanding God’s gift of marriage. (Baptist would NEVER go for it because it sounds to Catholic!! LOL) Sadly, if you were to canvas Bible teaching churches I believe that you could not find a majority who could articulate the beauty of God’s intended purpose for marriage, (beyond God said so) and how it positively affects the world in total. (BTW, God said so is fine, but Joe Pagan might like a more elaborate explanation.)

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