Defining Marriage—Supreme Court v. Sovereign God by Dr. Elizabeth Mitchell

In a pair of landmark decisions, the Supreme Court of the United States yesterday laid the groundwork for the creation of a new civil right to same-sex “marriage.” In one case, the Court overturned a decisive section of a federal law defining marriage as a union between a man and a woman. In a second case, it refused to uphold the rights of American citizens who had, in their own state of California, exercised their right to create a law defending that definition. While the Supreme Court did not declare that same-sex marriage is a civil right or overturn state laws prohibiting it, it did prepare the way for state-by-state battles leading to that end.

Once in Defense of Marriage

The federal Defense of Marriage Act (DOMA) was passed in 1996 at a time when no states permitted same-sex marriage. The law preserved the rights of individual states to refuse to recognize same-sex marriages sanctioned by other states. That section of DOMA still stands—so far.

Section 3 of DOMA—now declared unconstitutional by a 5–4 decision—defined marriage as “only a legal union between one man and one woman as husband and wife” and specified that spouse “refers only to a person of the opposite sex who is a husband or a wife” for the purposes of “determining the meaning” of any federal law. As such, DOMA effectively prevented same-sex couples from obtaining federal marriage benefits by simply moving to a state recognizing same-sex marriage. Those marriage benefits primarily include the financial benefits that accrue to married couples, such as Social Security survivor benefits, the option of filing joint tax returns, and governmental employees’ insurance benefits.

But the Supreme Court decision striking down Section 3 of DOMA reaches far beyond those financial implications. The effects of the Court’s decision will first be seen in the legal chaos the decision will create, chaos that will demand further legal decisions. The Court has presumed to paint those who disavow same-sex marriage as bigots. It ruled that those who refuse to recognize same-sex marriage “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”¹ In so doing, it has provided the civil rights blueprint by which gay rights activists can seek same-sex marriage in the 37 states still prohibiting it.

Recognizing the clear message carried in the majority opinion, dissenting Justice Antonin Scalia spoke from the bench—an unusual move—saying that while it is one thing “for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it . . . [are] enemies of the human race.”² Chief Justice John Roberts reminded the watching world that the original definition of marriage was not developed with some “sinister motive” but was defined historically by its “role and function throughout the history of civilization,” a precedent that predates our government and every government.² And dissenting Justice Samuel Alito affirmed, “The Constitution does not guarantee the right to enter into a same-sex marriage.”²

Thus, based on the wording of the Court’s majority and minority opinions and the unusual oral tirade from a dissenting justice, it is clear that the Court intends this decision to do far more than determine how much estate tax same-sex couples have to pay. The Court intends this decision, and the convenient companion “non-decision” concerning California’s Proposition 8, to be game-changers for American culture. The Court is attempting to overturn the precedent of 6,000 years of human history. The Court is attempting to overrule God.

Frankly, by implying that there is a civil right to same-sex marriage, the Court is even overturning the basis on which the United States Declaration of Independence asserts our civil rights are based. The Declaration declares that our natural rights as free people come from our Creator. For many years, injustice reigned over the lives of so many members of American society. Thankfully, the rights of all Americans—except the unborn—are now recognized by our laws. (And we remain hopeful that someday the unborn will likewise be protected.) But God’s Word, the Bible, nowhere sanctions same-sex marriage. God’s Word prohibits homosexual behavior and condemns a homosexual lifestyle. How can God then be said to be the source of the right to form a legal union that God specifically prohibits?

The challenge over Section 3 of DOMA began after one member of a lesbian couple that married in Canada died. The survivor, living in New York, was denied the right to file income tax as a surviving spouse and owed the Internal Revenue Service over $360,000. Pursuant to her complaint, the United States Court of Appeals for the Second Circuit, in New York, declared the federal law unconstitutional and refunded her money.³ At that point, President Obama directed the federal government to stop enforcing the law, and lawyers representing members of Congress objected. Despite some question as to whether the Supreme Court had jurisdiction to act in the case, because—as Justice Kennedy’s majority opinion states—the “rights and privileges of hundreds of thousands of persons” were at issue, the Court moved to strike down this provision of the federal law.

What Does This Mean for the Rule of Law?

Herein lies the beginning of the legal chaos to come. The Court has not solved problems but created them. As Justice Scalia pointed out, “Imagine a pair of women who marry in Albany and then move to Alabama. May they file a joint federal income tax return? Does the answer turn on where they were married or where they live?”⁴

For arguably the first time in over a century, the United States Supreme Court has upheld the concept of “states’ rights” in its failure to uphold DOMA. Now the federal DOMA is unenforceable in states that recognize same-sex marriage. In the majority opinion of this 5–4 decision, Justice Anthony Kennedy wrote that limiting the definition of marriage to the union of a man and a woman—which has been the definition since the creation of the world—is “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”¹ He goes on to say the law is unconstitutional because “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”²

Based on this decision, the federal Defense of Marriage Act will have no power in those states that have laws allowing same-sex marriage. Yet by a not-particularly-humorous stroke of irony, the Supreme Court in another 5–4 decision refused to uphold the mechanism to allow enforcement of California’s Proposition 8.

Proposition 8 is a constitutional amendment passed by over 7 million California citizens in 2008. However, like President Obama, Governor Jerry Brown refused to enforce the law, thereby ignoring the sworn responsibility of the executive office. A group of citizens took the matter to court, but the United States Court of Appeals for the Ninth Circuit in San Francisco failed to rule in favor of California’s law and instead allowed the governor to continue ignoring a law he did not like. The Supreme Court side-stepped the issue, deciding that citizens asking for their state’s law to be enforced did not actually have the right to ask the Supreme Court to step in because they only had a “generalized grievance.”

In essence, the Supreme Court set a precedent of ignoring the essential right of American citizens to make laws and have them enforced. The justices were not evenly split in these two decisions. It is entirely possible that the vote by some conservative justices to refuse to rule on the Proposition 8 case reflected their concern that a worse decision—perhaps striking down all such state bans on same-sex marriage—might have resulted had the Court decided to assume jurisdiction in the California case.

Nevertheless, even Justice Kennedy—who presented the opinion dooming DOMA—warned of the danger of not upholding the rights of citizens in a democratic society. He writes,

What the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century.⁵

These twin decisions bode ill for the future of the biblically defined family in the United States as well as for the rights of Americans to be justly represented in the law-making process and protected by the laws that are passed. The rulings do not directly affect the rights of churches to decide whom they will and will not marry. However, the confusion to come as the courts try to sort out the complexities created by the ruling as well as the ongoing battles to be fought by those seeking that same-sex marriage become a recognized civil right cannot help but land in the pew and in the pulpit. There is no reason to assume the marriage altar is safe.

Who Has the Authority to Define Marriage?

Marriage—the union of a man and a woman—was not created by religions or churches. Marriage was not created by courts or countries. While every culture, country, and church has provisions concerning how marriage and the families it creates are to interact with its laws and traditions and theology, marriage did not originate as a man’s idea, or even as a woman’s idea, and certainly not as a government’s idea. Marriage originated with God, as our Lord Jesus Christ reiterated:

And He answered and said to them, “Have you not read that He who made them at the beginning ‘made them male and female,’ and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh’? So then, they are no longer two but one flesh. Therefore what God has joined together, let not man separate.” (Matthew 19:4–6, quoting Genesis 1:27 and 2:24)

In fact, the union of a man and woman in marriage as intended by God is supposed to be so strong that, according to Ephesians 5:25–32, it mirrors the relationship of Christ with the church, both in leadership, reverence, and mutual selfless love. God ordained the original family when He created Adam and Eve. Despite the family distortions and failures of many cultures and individuals—including biblical ones that should have known better—God continued to defend the family as the best arrangement for raising children through the end of the Old Testament era (Malachi 2:15) and through the time of Christ (Matthew 19:4–6) and of the Apostle Paul (Ephesians 5:25; 6:4; 1 Timothy 5:8). The family isn’t perfect because people are sinful. But we must all oppose, wherever possible, the attack on the biblically defined family.

God does not change (Malachi 3:6; Hebrews 13:8). Therefore the definition of true marriage has not changed. But the Supreme Court, by deigning to declare God’s definition of marriage inadequate and unfair, has legitimized a counterfeit form of marriage for our country. The cultural ramifications, if the trend continues, will lead to the ultimate dissolution of the family unit. Despite the rhetoric of many and even the sincere belief of some that same-sex marriage is all about extending the blessings of the traditional family to same-sex couples, even gay rights activist Masha Gessen recently declared to shouts of acclamation at a GLBT event that the goal of those seeking the right to “gay marriage” is actually to destroy the family altogether:

I agree it’s a no-brainer that we should have the right to marry, but I also think equally that it’s a no-brainer that the institution of marriage should not exist. . . . That causes my brain some trouble, and part of it why it causes me trouble is because fighting for gay marriage generally involves lying about what we’re going to do with marriage when we get there, you know, because we lie that the institution of marriage is not going to change, and that is a lie. The institution of marriage is going to change and it should change. And again I don’t think it should exist.⁶

All is not lost! Just as Americans weary of the 40 blood-drenched years ushered in by the nationwide legalization of abortion in Roe v. Wade have now begun to fight for the protection of the unborn with increasing success, so we hope that Americans, seeing the cultural catastrophe of counterfeit marriage unfold, will respond by demanding a turning of the tide before it is too late. A federal marriage amendment protecting the biblical definition, for instance, would push the tide in the opposite direction by making the definition of marriage a part of our Constitution. Battles are sure to heat up in many states as some seek to protect the definition of marriage and the integrity of the God-ordained family while others push for the 12 states already sanctioning same-sex marriage (or 13, if California now counts—no one is quite sure whether the Court’s non-decision affects the entire state or only a small portion) to become 50.

But even as Bible-believing Christians prepare to speak out to protect the children and families of our nation as well as the religious freedom we hold dear, we need to search our own hearts for the sins we ignore in our own lives. We must also root out any hatred for those practicing a homosexual lifestyle—who, after all, are doing what is right in their own eyes, no matter how wrong they are. We must take a stand for the love of Christ as well as the authority of God’s Word from the very first verse.

Going Down the Wrong “Romans Road”

Which way will America go? Time will tell. But no doubt yesterday’s decisions represent a giant step down the wrong “Romans Road.” Our nation is in rebellion against God. Those engaged in homosexual behavior are, like all people, sinners in need of salvation through Jesus Christ. But legalizing same-sex marriage does not spread the love of Christ to them. It only adds legal legitimacy to our individual and national rebellion against God:

For since the creation of the world His invisible attributes are clearly seen, being understood by the things that are made, even His eternal power and Godhead, so that they are without excuse, because, although they knew God, they did not glorify Him as God, nor were thankful, but became futile in their thoughts, and their foolish hearts were darkened. Professing to be wise, they became fools, and changed the glory of the incorruptible God into an image made like corruptible man—and birds and four-footed animals and creeping things. Therefore God also gave them up to uncleanness, in the lusts of their hearts, to dishonor their bodies among themselves, who exchanged the truth of God for the lie, and worshiped and served the creature rather than the Creator, who is blessed forever. Amen.

For this reason God gave them up to vile passions. For even their women exchanged the natural use for what is against nature. Likewise also the men, leaving the natural use of the woman, burned in their lust for one another, men with men committing what is shameful, and receiving in themselves the penalty of their error which was due. And even as they did not like to retain God in their knowledge, God gave them over to a debased mind, to do those things which are not fitting; being filled with all unrighteousness, sexual immorality, wickedness, covetousness, maliciousness; full of envy, murder, strife, deceit, evil-mindedness; they are whisperers, backbiters, haters of God, violent, proud, boasters, inventors of evil things, disobedient to parents, undiscerning, untrustworthy, unloving, unforgiving, unmerciful; who, knowing the righteous judgment of God, that those who practice such things are deserving of death, not only do the same but also approve of those who practice them. (Romans 1:20–32)

Traveling down the “Romans Road” described in this final portion of chapter one of the Bible’s book of Romans destroys lives, families, and—historically—nations. But the right Romans Road leads to life in the light and love of Christ.

The Right “Romans Road” Leads Us to Christ

Many Christians have memorized key Bible verses explaining how to receive the gracious gift of eternal life that Jesus Christ died to make available to all (Hebrews 2:9). Lots of those verses come from the book of Romans, hence the name, “Romans Road” (i.e., Romans 3:23; 6:23; 5:6; 5:8; 10:13). As we go forward, we each need to remember that it is not being heterosexual, or being a creationist, or being a philanthropist, or being a campaigner for human rights, or being a good person that determines our acceptance and fellowship with our Creator now and our eternal destiny. It is our relationship with Jesus Christ.

Those who get this part of their lives in order by receiving God’s grace and learn to love Jesus Christ and to completely trust God’s Word will find the source of true freedom. A country full of people whose hearts have turned to God is the solution we seek, though that goal can only be pursued one life at a time.

For more information:

• The Gospel of Jesus Christ
• Gay Marriage as a Civil Right—Are Wrongs Rights?
• Pro-Gay Theology: Does the Bible Approve of Homosexuality?
• BSA and Gay: Phase One
• Chapter 15: How Should a Christian Respond to “Gay Marriage”?