With the decision of the US Supreme Court last week in U.S. v. Windsor, the subject of marriage has been much in the news. By a vote of 5 to 4 the high court struck down Section 3 of the Defense of Marriage Act, which defined "marriage" as the legal union between one man and one woman as husband and wife and limited the word "spouse" to apply only to a person of the opposite sex who is a husband or wife.
Led by Justice Anthony Kennedy, the majority ruled that Congress' definitions were constitutionally flawed because they didn't include same-sex couples. Currently a minority of states (only 12) permit same-sex couples to marry, while the remaining 38 states refuse to extend the rites of marriage to homosexual unions.
The majority's opinion is short on constitutional exegesis (not unexpected since the Constitution does not speak to the issue of same-sex marriage), but long on invective. Kennedy, the Court's Moralizer-in-Chief, impugns the motives of the lawmakers who passed DOMA and accuses them of being motivated by malice and hate. Justice Antonin Scalia, in his dissenting opinion, sums up the accusations hurled by Kennedy and company: The lawmakers' purpose was "to disparage and injure" same-sex couples and the motive of DOMA was to "demean," to impose "inequality," to impose a "stigma," to deny people "equal dignity," to brand gay people as "unworthy," and to "humiliat[e] their children.
That's a lot of rhetorical venom spewed by a largely unaccountable, non-elected branch of government towards the elected representatives of the American people. But when black-robed supremacists find themselves short of constitutional authority, it is perhaps understandable that they would resort to painting their opponents with the brush of bigotry and, as Justice Scalia points out, brand them as "hostis humanis generis, enemies of the human race." Sadly, those of us who oppose the killing of innocent children in the womb and support traditional marriage have become accustomed to such tactics.
One can only assume that the Court's majority would ascribe similar motives to Jesus of Nazareth, whose position on marriage appears not unlike that set forth in DOMA. Responding to a question from the Pharisees about the permissibility of divorce, Jesus reminded them of the Creator's intention that marriage was to be an enduring institution between a man and a woman:
"…[A]t the beginning of Creation, God made them male and female. For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh. So they are no longer two, but one flesh. Therefore, what God has joined together, let no one separate" (Mark 10:6-9 NIV, internal quotes omitted).
Jesus' definition of marriage did not appear to contemplate a union of same-sex partners. So what would Justice Kennedy and his colleagues have to say about the motives of the Savior of the World? Would they brand him a "hater," this God who loved sinners so much that he became a man and laid down his life for them? Would they characterize him as malicious and bigoted? His words, after all, have informed the views of millions in the Western world who adhere to a view different from that of Justice Kennedy on this subject.
Please, Justice Kennedy – you who have lectured the country and the Congress on the superiority of your moral judgment in favor of same-sex marriage in contrast to the hateful view of those who oppose it – how would you judge the motives of the Supreme Judge of the Universe, the one who invented the institution of marriage and laid out its parameters? The American people anxiously await your decision.
Ken Connor is an attorney and co-author of Sinful Silence: When Christians Neglect Their Civic Duty. He is also chairman of the Center for a Just Society.
Publication date: July 2, 2013