Supreme Court debates same-sex marriage without mentioning religion — except for 20 seconds from a protestor

Print More
U.S. Supreme Court building.

U.S. Supreme Court building.

Guest post by Daniel Bennett

This week’s oral arguments in Obergefell v. Hodges barely mentioned religion. In fact, the only person to give a religious argument against same-sex marriage was a protestor who interrupted the proceedings.

After the attorney for Obergefell—a gay man suing Ohio for recognition of his out-of-state marriage—finished her argument, someone in the audience began shouting.

“The Bible teaches that if you support gay marriage, then you will burn in hell!” the protester yelled. He referred to homosexuality as an “abomination,” and warned that “the judgment of God will be upon this nation” if the Court recognizes a right to same-sex marriage. He continued to yell as security removed him from the courtroom.

The whole interruption lasted less than 20 seconds. After Chief Justice Roberts asked if the justices and the attorneys were prepared to continue, Justice Scalia quipped, “It was rather refreshing, actually.”

Those twenty seconds marked religion’s most prominent role in Tuesday’s arguments.

In searching the transcript of the arguments—which spanned two-and-a-half hours, more than twice the amount of time allotted for a typical case—few references to religion can be found. And most of these come from the justices through questions to the attorneys.

For example, Justice Breyer was not convinced religious objections are enough for states to ban gay marriage: “There’s no question about [religious objectors’] sincerity, but is a purely religious reason on the part of some people sufficient?”

Breyer later added, “[Our analysis] is not going to get into all these questions balancing free religion rights versus gay rights and so forth. We’d avoid that in this case.”

And Justice Scalia did worry about the wisdom of “imposing through the Constitution – a requirement of action which is unpalatable to many of our citizens for religious reasons.”

The importance of tradition, though, was clear for some justices. Justice Kennedy’s statement epitomizes this: “This definition [of marriage] has been with us for millennia. And it’s very difficult for the Court to say, oh, well, we know better.”

Likewise, Justice Scalia worried about extending same-sex marriage rights since no society prior to the Netherlands in 2001 had done so: “You’re asking us to decide it for this society when no other society until 2001 had ever had it.”

As has been the norm in controversial cases, this case will come down to Justice Kennedy. The perpetual swing justice could take two routes: he could return to the reasoning he announced in Lawrence v. Texas, where he spoke of individual liberty for same-sex couples and denied that moral disapproval is enough to criminalize their behavior.

Conversely, he could follow elements of his opinion in U.S. v. Windsor, where he spoke of the power of states in defining marriage for themselves as a principal of federalism. If he does this, it would be hard for him to justify the Court striking down state bans on gay marriage.

Ultimately, I believe Kennedy’s rationale from Lawrence will win out, and lead to a 5-4 decision striking down bans on gay marriage. But don’t be surprised if Chief Justice Roberts joins the majority to make it 6-3: with the outcome decided, Roberts may view this case as legacy-defining, and choose to be on the winning side for history’s sake.

But whatever the outcome, don’t expect religious reasoning to play a starring role — unless the justice permits that protester to write a dissenting opinion.

Daniel Bennett, PhD, researches the conservative legal movement. He is an assistant professor of political science at Eastern Kentucky University. You can follow him on twitter at @BennettDaniel.

Don’t miss any more posts from the Corner of Church & State. Click the red subscribe button in the right hand column. Follow @TobinGrant on Twitter and on the Corner of Church & State Facebook page.

  • Dan the Mormon

    It is unfortunate that the votes of millions of citizens can be disregarded simply because the voters are religious. The USA was designed to be a religiously pluralistic society, but is turning out to be an overtly secular society. Citizens can bring their values into the voting booth if those values are based on pseudoscience, economics, or any philosophy that isn’t branded as “religious.” But as soon as a “religious” value sneaks in, watch out! Your vote is likely to be thrown out.

  • Daniel

    Cry me a river. Move away if you don’t like it here. Take your silly made up religion with you.

  • Kenny

    I am a follower of Jesus Christ. Despite what “religion” you follow, you will have those who fall to the extreme right, and the extreme left. From a biblical perspective God doesn’t say that if you are gay you will go to Hell. Romans tells us that the wages of sin is death. This sin includes men and women who have extramarital affairs, men and women who live together outside of marriage. As a matter of fact, it is any sexual activity between anyone outside the confines of a marriage between a man and a woman is biblical sin. I would warn anyone who feels self righteous enough to point out homosexuality as a sin, while they too live openly with some other sin. We are to love one another and have compassion. It is God who will judge, not us. So show EVERYONE the same grace and mercy God has shown you through the saving grace of his son Jesus. I pray for a broken world who leans only on their own understanding of right and wrong, and not the guidance of their creator.

  • Gerald Moore

    I doubt there are any gods, but if there is a “good” god I’ll wager he is a god who rewards critical thinking and punishes blind faith. The folks that encourage blind faith are in deep trouble! I pray for a broken world too stupid to determine their own morals, one that feels the need to lean on a litany of ancient texts full of hideous cruelty and immorality instead of using their own intelligence and understanding of what’s right and wrong.

    Christians claim the golden rule is all you really need. Well, in that case imagine being born a homosexual and loving someone enough to want to marry them. Now imagine how you would like society to treat you. Christians don’t follow the golden rule, they follow an evil text.

  • James Carr

    Blind faith is what God asks of us, ergo His references to the faith of children as perfect. You want critical thinking to be the barometer? Well, not an issue. As we mature we use our Free Will selectively, choosing one thing or the other no matter how ridiculous that choice may be.
    God throws the Truth in front of us, and asks us to choose it freely, since it is Perfect and Wise. God cannot deceive us nor trick us because He is Truth itself. We are fully able to rationally accept God’s Will, but because of our limited knowledge we cannot reject His Will as incomplete or wrong. Well, we can, but that would not be logical.

  • Larry

    Pay attention to the 1st Amendment. Especially the Establishment Clause. Our laws must have rational and secular purpose. Promoting purely sectarian religious agendas under the color of law is the illegal establishment of religion.

    Secular society and government is what preserves religious freedom. If your vote is to attack the civil liberties of others, it must be thrown out. Discriminatory laws must be struck down. All discriminatory laws are passed by a majority. Majority rule must always be tempered by recognizing the rights of the political minority. That was the concept behind the Bill of Rights and to the 14th Amendment.

  • Pingback: Supreme Court Debated Homosexual Marriage and Barely Mentioned Religion | BCNN1 WP()

  • Pingback: BCNN2 » Blog Archive » Supreme Court Debated Homosexual Marriage and Barely Mentioned Religion()

  • Pingback: Inevitable question: Will nonprofits lose tax-exempt status over same-sex marriage? - Corner of Church and State()