Supreme Court to Hear Oral Arguments on Same-Sex Marriage Today

Supreme_Court_US_2010The Supreme Court will hear oral arguments for Obergefell v. Hodges regarding the constitutionality of same-sex marriage this morning. The Court will consider two primary questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The answers to these questions will decide the future of marriage across the United States. If the answer to the first question is “Yes,” then same-sex marriage will be legalized nationwide, and the second question would be irrelevant. If the answer to the first question is “No,” but the second question is answered “Yes,” then it will authorize de facto same-sex marriage across the country. If both questions are answered “No,” then the status quo will continue.

You can follow a live blog of the oral arguments from SCOTUSblog at http://live.scotusblog.com/Event/Live_blog_Obergefell_v_Hodges. The live blog launches at 9:45 a.m. (CDT).

This case has the potential to be a defining Supreme Court decision for this generation. It could possibly change the definition of marriage for generations in our country. It has the potential to undermine the most fundamental institution in society, and I do not believe that to be an overstatement.

I encourage you to join with the Ethics & Religious Liberty Commission and others as we pray for marriage. A sample prayer guide can be found at http://erlc.com/article/prayformarriage. We should also pray for the Supreme Court justices by name as the hear the arguments today. They are John Roberts (Chief Justice), Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Let us heed the words of Paul to his son in the faith, Timothy, as he wrote:

First of all, then, I urge that entreaties and prayers, petitions and thanksgivings, be made on behalf of all men, for kings and all who are in authority, so that we may lead a tranquil and quiet life in all godliness and dignity. (1 Tim 2:1-2)

Supreme Court to Decide Constitutionality of Same-Sex Marriage Laws

Supreme_Court_US_2010The Supreme Court has just announced that it will hear four cases involving the constitutionality of same-sex marriage laws around the United States. The hearings will most likely be in April with a decision in June.

Two central questions will be considered according to the Court’s statement granting certiorari:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The answers to these questions will decide the future of marriage across the United States. If the answer to the first question is “Yes,” then same-sex marriage will be legalized nationwide, and the second question would be irrelevant. If the answer to the first question is “No,” but the second question is answered “Yes,” then it will authorize de facto same-sex marriage across the country. If both questions are answered “No,” then the status quo will continue.

The New York Times notes:

The pace of change on same-sex marriage, in both popular opinion and in the courts, has no parallel in the nation’s history.

Based on the court’s failure to act in October and its last three major gay rights rulings, most observers expect the court to establish a nationwide constitutional right to same-sex marriage. But the court also has a history of caution in this area.

This could be one of the most pivotal decisions of the Supreme Court in a generation. It will impact the future of marriage in this nation for generations to come. This is a time for us to be in earnest prayer for the justices of the Supreme Court. I pray that they will uphold the design for marriage that God has created and has been recognized for all of human history up to the last decade. The future of marriage is at stake.

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Supreme Court Order 574 U.S., January 16, 2015.

Adam Liptak, “Supreme Court to Decide Whether Gays Nationwide Can Marry,” The New York Times, January 16, 2015.

Lyle Denniston, “Court will rule on same-sex marriage,” SCOTUSblog, January 16, 2015.

Next Stop, Supreme Court (?)

wedding ringsA panel of the 6th Circuit Court of Appeals upheld the traditional definition of marriage today in cases involving Michigan, Ohio, Tennessee, and Kentucky. This is the first time in the recent round of cases that a circuit of the U.S. Court of Appeals has ruled in favor of laws limiting marriage to one man and one woman. This also creates a point of tension for the Supreme Court since they decided last month not to take up other cases related to the definition of marriage.

Robert Barnes reports the following in The Washington Post:

A panel of the U.S. Court of Appeals for the 6th Circuit upheld same-sex marriage bans in four states Thursday afternoon, creating a split among the nation’s appeals courts that almost surely means the Supreme Court must take up the issue of whether gay couples have a constitutional right to marry.

The panel ruled 2 to 1 that while gay marriage is almost inevitable, in the words of U.S. Circuit Judge Jeffrey Sutton, it should be settled through the democratic process and not the judiciary. The decision overturned rulings in Michigan, Ohio, Tennessee and Kentucky, and makes the 6th Circuit the first appeals court to uphold state bans since the Supreme Court in 2013 struck down part of the federal Defense of Marriage Act.

In the conclusion of the majority opinion, U.S. Circuit Judge Jeffrey Sutton chastises the courts that have overturned marriage laws in other states. He writes:

When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers. Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.

Now there is a split in the U.S. Circuit Courts. Now we have to wait and see if the Supreme Court will take up the cases.

Hobby Lobby Wins Religious Freedom Victory

Supreme_Court_US_2010*Co-authored with Trey Dimsdale

In the highly anticipated decision of Burwell v. Hobby Lobby, the Supreme Court issued a victory to closely held for-profit corporations on the issue of religious liberty. While the decision was not as sweeping as some may have wanted—or as Justice Ginsburg claimed in her dissent—the Court’s decision upheld the idea that Americans need not check their right to religious liberty at the door when they enter the business world.

At issue for the Green family, owners of Hobby Lobby and Mardel, and the Hahn family, owners of Conestoga Wood Specialties, was the fact that the government compelled them to violate their deeply held religious beliefs by providing abortifacient birth control drugs and devices to their employees as part of their employer-provided healthcare plans. The Greens and Hahns specifically believe that life begins at conception and any measure that extinguishes the life of a human embryo is a violation of that belief. As such, the Health and Human Services birth control mandate would cause them to violate their consciences.

One of the key issues before the Court was whether or not for-profit corporations fit the legal definition of a person for the sake of exercising religious liberty. In the summary of their decision, the majority of the Court noted, “Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.”

In a further explanation of this protection, the Court noted the Third Circuit’s argument that for-profit corporations “do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.” In response to this conclusion, the Court stated, “All of this is true—but quite beside the point. Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them, cannot do anything at all.”

In making these statements, the Supreme Court tied the actions of closely held for-profit corporations directly to the actions and beliefs of their owners. Specifically, the Hahns and Greens can exercise their belief that life begins at conception through excluding certain types of birth control from their insurance plans.

The heart of this decision is in the Court’s determination that a corporation is a “person” under the meaning of the Religious Freedom and Restoration Act (RFRA). RFRA establishes a very specific test which federal courts must apply in cases that deal with government action that infringes on a person’s free exercise of religion. HHS argued, and at least one appellate court agreed, that corporations are not “persons” capable of exercising religion. In that case, the RFRA would not apply to the issue before the Court. The Supreme Court, however, held that (in at least the case of closely held corporations), corporations areentitled to the protections offered by RFRA. The fact that corporations are not capable of participating in religious activities is irrelevant. In short, the Supreme Court recognizes that Hobby Lobby, Mardel, and Conestoga Wood Specialties are legitimate vehicles for the exercise and expression of their owners’ religious convictions.

This is a clear victory for business owners who believe that life begins at conception and that the HHS mandate violates such a belief. In keeping with the First Amendment and RFRA, owners of closely held corporations can exclude abortifacient birth control measures from their healthcare plans.

A second issue presented in the Court’s decision is that the government cannot determine certain religious beliefs are invalid because they do not like them. The Court argues, “Arrogating the authority to provide a binding national answer to this religious and philosophical question [i.e., that providing these birth control measures enables the commission of an immoral act], HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to take such a step.” Thus, HHS claimed it had the right to determine if the Greens and Hahns held a valid religious belief. The Court clearly held that is not the job of the government. The majority went on to say, “Similarly, in these cases, the Hahns and Greens and their companies sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’ whether the line drawn reflects ‘an honest conviction,’ . . . and there is no dispute that it does.”

If the government had its way, the Court argued that it could have excluded religious owners from the business world. According to the government’s argument, no insurance coverage mandate would have violated the RFRA, including third-trimester abortions and assisted suicide. The Court responded, “The owners of many closely held corporations could not in good conscience provide such coverage, and thus the HHS would effectively exclude these people from full participation in the economic life of the Nation.” Thankfully, the Court disagreed.

What does this mean for Christian business owners? Specifically related to the HHS mandate, owners of closely held corporations cannot be compelled to provide abortion-inducing drugs and devices as part of their healthcare plans. The Court’s decision in Burwell v. Hobby Lobby is only applicable to closely held corporations. These are businesses which are organized under state law as corporations but are owned by a small number of individual shareholders. The companies involved in this case are all closely held, family-owned businesses. This is different from publicly held corporations that may have any number of shareholders who have invested money in the business.

Many people in our churches are likely to be part of such businesses. While they may not always have the number of employees that require mandatory health insurance coverage, there is potential that their businesses could grow to that point just as Hobby Lobby, Mardel, and Conestoga Wood Specialties.

This case could also foreshadow how the Court may decide other related cases, such as the cases involving the Little Sisters of the Poor and religious educational institutions. Subsequent Supreme Court decisions could extend similar religious freedom protections and exemptions to other types of organizations that Burwell v. Hobby Lobby does not.

We can rejoice in today’s victory for the Greens and Hahns, but there is still much work to be done in protecting religious liberty for people of faith in the marketplace.

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Trey Dimsdale, J.D., serves as Research Fellow in Law and Public Policy for the Land Center for Cultural Engagement at Southwestern Baptist Theological Seminary in Fort Worth, Texas. He is also one of my Ph.D. students in ethics.

Are Corporations People Too?: Hobby Lobby and Religious Liberty

Supreme_Court_US_2010Who would have ever imagined that a craft store chain owned by a Christian family would be at the center of a Supreme Court case about sexuality, abortifacient drugs, the role of corporations, and religious liberty? Oral arguments were heard today in the Supreme Court case Sebelius v. Hobby Lobby. The central point of the case is whether or not the Green family, owners of Hobby Lobby and Mardel Christian bookstores, has the right to exercise their religious freedom in opting out of the Health and Human Services (HHS) mandate requiring employer-provided health plans to offer emergency birth control drugs at no charge to their employees. The Greens have objected on religious grounds that such emergency birth control options are tantamount to abortion and that providing abortion-inducing drugs is a violation of their deeply held religious beliefs.

Trying to predict what the Supreme Court will decide is an exercise in futility, so I will not go down that road. However, I do want to highlight a few interesting notes from today’s oral arguments.

The first is not all that surprising (and possibly not all that interesting)—the high court appears divided. From the best one can tell from the questioning, the Supreme Court is split 4-4 with Ginsburg, Breyer, Kagan, and Sotomayor apparently siding with the government and Roberts, Thomas, Scalia, and Alito leaning towards Hobby Lobby. This leaves Justice Anthony Kennedy as the deciding vote in an otherwise divided Court. This is familiar territory for the current version of the Supreme Court.

The second item of note is that the role of a corporation seems to be a big question. Some of the liberal justices seemed to imply that corporations should simply be able to pick up the tab for the healthcare expenses or fees for not providing healthcare with no impact on the business or the economy. They did not seem to take into account that these healthcare costs have to be paid by someone and that the costs would most likely be passed along to the customer. Justices Kagan and Sotomayor also pressed Paul Clement, the attorney arguing for Hobby Lobby, about whether corporations could opt out of other healthcare options for their employees. Lyle Denniston reports that they “suggested that if corporations gain an exemption from having to provide birth-control services for their female employees, then the next complaint would be about vaccinations, blood transfusions, and a whole host of other medical and non-medical services that a company or its owners might find religiously objectionable.”

On the other hand, Justice Alito pushed back against Solicitor General Donald Verrilli regarding the purpose of corporations. He asked the Solicitor General if the only purpose of corporations was to “maximize profits.” If the object is only to maximize profits, then corporations would have no other rights. However, if corporations serve other purposes, then they might have the right to protection under the free exercise of religion clause in the First Amendment.

The third item is the most interesting development in my opinion. It relates to the rights of a corporation to make a claim regarding discrimination. The government argued that for-profit corporations like Hobby Lobby have no standing to file a claim against the government based on religious discrimination. On the surface this seems to make sense because corporations are not churches, nor are they individuals with religious beliefs. However, the government has already held that corporations can file claims based on racial discrimination. In the same sense, corporations are not individuals of a particular race or ethnicity. The racial discrimination claims have typically been based on the race and ethnicity of the owners.

Applying the same standard to the religious freedom aspect of the Hobby Lobby case, it would appear that the Green family’s deeply held religious beliefs (and clear articulation of those beliefs in company documents) would provide the corporation with the same protections as those guaranteed to them as individuals. This argument could prove to be central in the upcoming decision of the Court.

Once again, we will be left to wait for months until hearing the decision of the Supreme Court that will most likely come in June. Until then, it is futile to speculate what the Court will decide. However, there is one thing that we can do. We can pray for the justices of the Supreme Court that God would grant them wisdom in judging these matters. We should pray for godly wisdom that they would rule according to God’s will. We should pray that they would value life in the way that God values life—seeing those in the womb as no different than a full-grown adult (Psalm 139:13–16).

I urge you to join me in prayer for John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. The future of religious liberty in the United States is in their hands.
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Lyle Denniston, “Argument recap: One hearing, two dramas,” SCOTUSblog, March 25, 2014.

Derrick Morgan, Hans von Spakovsky, and Elizabeth Slattery, “How the Supreme Court Justices Reacted to Today’s Hobby Lobby Arguments,” The Foundry, March 25, 2014.

Ilya Shapiro, “Is There No Alternative to Forcing People to Violate Their Religious Beliefs?” Cato Institute, March 25, 2014.

Radical Reformation and Religious Liberty

Today I had the privilege of speaking in chapel at Southwestern Baptist Theological Seminary for our annual Radical Reformation Day chapel. Dr. Patterson had asked me to speak on the issue of religious liberty. You can watch or listen to the entire message here, but I also want to provide you with some highlights.

Historically, the Anabaptists fought for religious liberty all the way to the point of death. They believed that the church and state should not be wed in a way that the state enforces doctrinal purity by punishing those who believe or promote false doctrine. The Anabaptists believed that the state’s role was limited to protecting peace and order in society. Since the state could not coerce beliefs, then the Anabaptists also believed that conversion cam on the basis of persuasion through the Word of God rather than at the point of the sword. Finally, the Anabaptists taught the free exercise of religion in that heathens and heretics were to be allowed to continue in their unbelief. No one had the right to coerce them to change.

There is much more to discuss, but this gives you the historical highlights. I hope you enjoy the message as much as I enjoyed preparing and delivering it.

Radical Reformation and Religious Liberty

Juggling the Politics of a Justice: Ginsburg Officiates Same-Sex Wedding

We rarely see Supreme Court justices wade into the waters of political controversy outside the opinions issued from the hallowed halls of the nation’s highest court. The reason for staying away from controversy is that justices who delve into political issues in the public square but away from the bench may find themselves under fire for politicizing the office that is supposed to be free of politics.

Over the weekend, Justice Ruth Bader Ginsburg became the first member of the Supreme Court to officiate a same-sex wedding ceremony. The ceremony took place at the Kennedy Center for the Performing Arts between Michael Kaiser, President of the Kennedy Center, and John Roberts, an economist with the Commodity Futures Trading Commission.

Ginsburg admitted back in the spring that she had never been asked to officiate a same-sex wedding ceremony, most likely because members of the gay-rights movement did not want to jeopardize potential cases. However, since the historic rulings of June 26 on the Defense of Marriage Act (DOMA) and California’s Proposition 8, Ginsburg has already agreed to perform another one.

Ginsburg was in the majority on both of the recent Supreme Court decisions related to same-sex marriage. In those cases, the Court struck down section 3 of DOMA, requiring the federal government to recognize same-sex marriages for the purpose of federal benefits, and declared the private citizens of California did not have standing to argue their case before the Court, effectively upholding the decision of the California Supreme Court that ruled Proposition 8 unconstitutional.

Should we be surprised that Justice Ginsburg has jumped into the deep political waters of same-sex marriage? Not really.

Ginsburg is the senior liberal justice on the Court, and it came as no surprise that she supported same-sex marriage in the recent decisions. In fact, The Washington Post reported:

Ginsburg said she thought she and her colleagues had not been asked previously to conduct a same-sex ceremony for fear it might compromise their ability to hear the issue when it came before the court. But once the cases had been decided, Ginsburg seemed eager for the opportunity.

Her agreement to perform a second ceremony in September was communicated to the individuals in a letter dated June 26, the date of the Court’s decisions.

Should we be disappointed that Justice Ginsburg has agreed to perform these ceremonies? Certainly.

Ginsburg’s decision to officiate these ceremonies raises questions regarding future cases related to same-sex marriage. One would be naïve to think that no other cases will reach the high court in the coming years. Even though Ginsburg turned 80 this year, she has clearly communicated that she has no plans to retire anytime soon.

When asked about performing the ceremony, Ginsburg stated:

I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship.

In this statement, Ginsburg has offered her personal definition of marriage that most certainly impacts her legal opinions on same-sex marriage. The only two qualifications for marriage, according to Ginsburg, are that people should “love each other” and “want to live together.” Notice that she places no limits on the number, gender, or consanguinity of the people—they simply need love and a desire to live together. As other cases make their way to the Supreme Court, specifically the “Sister Wives” lawsuit still pending in federal court in Utah, this definition of marriage is likely to play a key role in Ginsburg’s decisions.

Ginsburg’s definition is essentially what Girgis, Anderson, and George have called the revisionist definition of marriage in their book, What Is Marriage? Man and Woman: A Defense. Ultimately, these authors find that the revisionist definition is incoherent because the state only has an interest in regulating certain relationships that are sexual and monogamous. The revisionist definition requires neither.

At the end of the day, this is another example of the culture’s march toward a redefinition of marriage. This time it came from the actions and words of a justice outside the walls of the Supreme Court. May we continue to be diligent to make the case for God’s design for marriage—one man and one woman for a lifetime.

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Robert Barnes, “Ginsburg will be first justice to officiate at same-sex wedding,” The Washington Post, August 30, 2013.

Brett Zongker, “Justice Ginsburg to officiate at same-sex wedding,” Associated Press, August 30, 2013.

Jim Dalrymple, II, “After 6 months, no ruling on ‘Sister Wives’ polygamy lawsuit,” The Salt Lake Tribune, July 18, 2013.

Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York: Encounter, 2012), 15–21.