The United States Supreme Court is now debating DENNIS HOLLINGSWORTH, ET AL., Petitioners v. KRISTIN M. PERRY, ET AL. which will prove to be one of the most sensational decisions of our time. In short, they are deciding if Proposition 8, approved by California voters in 2008, can stand in its defense of the traditional definition of marriage between one man and one woman.

Having listened to, and read, the entirety of the oral arguments let me make three observations.

First, I am thankful to that I can live in a country where all of this debate is freely open to the public.  Most people around the world do not share in this blessing, so for that freedom of access I am thankful.

Second, although Justice Ginsburg sounded quite feeble, I was truly impressed by all the questions asked by the Justices. I don’t care what label one ascribes to them; liberal or conservative, they all did a great job of poking and prodding the attorneys for both sides of the case. In addition to their legal insight, the Justices entertained by making the lawyers on both sides look a bit silly.

Finally, here is my guess. I believe the court will not make a decision on the constitutionality of Prop 8. Instead, because Gov. Jerry Brown (D) and Attorney General Kamala Harris refused to defend the law passed by the people of California  I believe the court will rule that there is no standing and send the case back to CA. If this happens, Prop 8 will be nullified and gay marriage will again be legal for Californians. I hope I am wrong though because there is more at stake here than this one case.  If the court rejects the case on standing, this will effectively cede power to the Politicians and diminish the voters’ voice in all future propositions.

Now, regardless of how The US Supreme Court decides this case,  the oral arguments bring up some important issues that go beyond the legal definition of marriage.

The Right to Genderless Marriage

Ultimately, the importance of this case is not only about how marriage is defined, but how society will define human “gender”.  How many genders are there?  2 genders? 5 genders? Unlimited genders?

When asked by Justice Kennedy if marriage is a legitimate gender-based classification or if the traditional definition of marriage as between a man and a woman equated to “gender discrimination”, Mr. Cooper replied,

“…marriage itself is a gendered institution, a gendered term, and so in the same way that fatherhood is gendered more motherhood is gendered…” — MR. COOPER

So in essence, what is before the court is not only whether gays and lesbians can marry, but are we willing to accept the proposition that marriage is really a genderless institution? And looking forward, will we be a genderless society?

We have already seen these debates taking place in our schools. For example, in 2010 a Human Rights Commissions in Maine argued that limiting gender to male and female only is defacto discrimination. Fox News reported,

The commission is taking heat over a controversial proposal to ban schools from enforcing gender divisions in sports teams, school organizations, bathrooms and locker rooms. It says forcing a student into a particular room or group because of his or her biological gender amounts to discrimination.

So whatever the Supreme Court rules in this Prop 8 case, there will be repercussions far beyond the definition of marriage.

Marriage Is Not Discrimination

The argument from those who support gay marriage is that anyone who holds to the traditional definition of one man with one woman is an enemy of diversity and a bigot. To that point, I found Chief Justice Robert’s question salient.

“I’m not sure, counsel, that it makes — I’m not sure that it’s right to view this as excluding a particular group. When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.” — CHIEF JUSTICE ROBERTS

Marriage, as a societal institution, was never designed to exclude or discriminate  it is simply an endorsement of what has been a human practice for time immemorial. To phrase the marriage debate as “anti-gay” is to simply distort the reality of history.

Justice Scalia makes this clear in his lengthy exchange with Mr. Olson. He begins as follows,

“I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?” — JUSTICE SCALIA

After some rather entertaining banter, through which Scalia exposes the foolishness of Mr. Olson’s argument, we come to this significant exchange.

MR. OLSON: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that —

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

The importance here is that according to Mr. Olson, sexual identity itself is an evolutionary process that changes with the desires, passions, and politics of society.  This, of course, is a conveniently corrosive argument that serves his immediate legal purpose, but will eventually strip away any foundation for sexual identity.  If you think LGBTQ is a long abbreviation for the currently accepted genders,  wait until Mr. Olson’s argument really takes hold in our culture.

Marriage Has Meaning

Words have meaning… but for those who embrace Semantic Mysticism, that is no longer true. Justice Sotomayor gets to the heart of this debate with her probing question,

“Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?” — JUSTICE SOTOMAYOR

Traditionally, marriage is defined as “the consensual and loving union between 1 man and 1 woman”.

The current debate says this is discrimination and must be redefined as, “the consensual and loving union between any 2 people of any gender”.

But the problem here is that if these words are always evolving, then this definition too is only transitory:

  • Consensual? — Why must marriage be consensual? Why can’t a 40 year old man marry a 10 year old girl.  Or who says NAMBLA is wrong?  Why can’t a 50 year old gay man have sex with a 7 year old boy?
  • Loving? — Why must it be loving? Who says we can’t have arranged marriages? And besides, what does love even mean?  Who gets to decide how that word is defined?
  • 2 People? — Why only 2 people? What if 1 man loves 5 women and 3 men?  Why can’t they are be married together?
  • People? —Why only a union between people?  If evolution is right and we are all animals  and if PETA is right that animals have the same rights as people, then why can’t a boy marry his dog? Who are you and I to discriminate against such love?

Justice Sotomayor’s question is a good one and legally, if “marriage”, “sex” and “gender” are all evolving terms defined with each new cultural paradigm, then there is no legal reason to deny any of the above adaptations.

The best response to the spiraling irrationality of this Semantic Mysticism, is the simple observation by Chief Justice Robers.  He says,

“Sure. If you tell — 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. And that’s it seems to me what the — what supporters of Proposition 8 are saying here. You’re — all you’re interested in is the label and you insist on changing the definition of the label.” — CHIEF JUSTICE ROBERTS

The case before the US Supreme Court is not about protecting rights or promoting diversity, it is about redefining the meaning of marriage  to suit a political purpose and, in the end, destroying any possibility of cultural relevance.

Legality Is Not Morality

So here we have it, the people who once argued that marriage was a form of female slavery and all sex inside of marriage was institutional rape, now argue that marriage is the fundmental right that will bring equality to all people.. Oh, how times and political tastes have changed!

How will this all turn out?  Time will tell, but for the disciple of Jesus Christ, here is an important reminder, legality does not determine morality and the US Supreme
Court does not define our Gospel-mission.


Dr. J.R. Miller is a Professor of Applied Theology and Leadership & Dean of Online Learning at Southern California Seminary. Outside work, he is a church planter. Dr. Miller has a diverse educational background and authored multiple books on church history, biblical theology, and Leadership. Joe and his wife Suzanne enjoy the sun and surf with their 3 sons in San Diego, CA.

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