The next two days are destined to stand as among the most significant days in our nation's constitutional history, but the issues at stake reach far beyond the U.S. Constitution. Nothing less than marriage is in the dock, with the nation's highest court set to consider two cases that deal with the question of the legalization of same-sex marriage.
The first time the issue of same-sex marriage came before the Court, back in 1972, the Court dismissed the question succinctly: "The appeal is dismissed for want of a substantial federal question."
But now the Supreme Court is faced with two cases that demand a more substantial response. One case deals with a challenge to the constitutionality of the federal Defense of Marriage Act, and the other addresses Proposition 8, the amendment to the California constitution defining marriage as the union of a man and a woman.
Both cases are significant. Together they represent a monumental set of issues for the justices. The Defense of Marriage Act (DOMA) was passed by huge majorities in both the House of Representatives and the Senate back in 1996. It was then signed into law by President Bill Clinton. DOMA requires the federal government to define marriage exclusively as the union of a man and a woman, and it makes clear that no state is obligated to recognize a same-sex union conducted in any other state. President Obama, whose constitutional responsibility requires him to defend the laws of the United States, has ordered his Attorney General not to defend DOMA in court. It will be defended by attorneys representing the House of Representatives.
Proposition 8 was adopted by voters in California in 2008, effectively reversing a decision by that state's Supreme Court to legalize same-sex marriage. A federal district court in San Francisco later found Proposition 8 to be unconstitutional and a panel of the Ninth Circuit Court of Appeals sustained that decision. It will now be up to the Supreme Court to decide.
Taken together, these cases threaten nothing less than the redefinition of the most basic and essential institution of human society -- any society. Marriage stands at the center of human culture and life, forming the necessary network of relationships upon which society depends. Every society in human history has found its way to the establishment of marriage as the centering institution of all social order. Its exclusively heterosexual character has been challenged only in very recent years and only in a few nations. Now, this institution that has preserved the context for intimacy, procreation, and the raising of children is threatened with a redefinition that would render the state's conception of marriage at odds with millennia of human wisdom, putting human flourishing at risk.
The very fact that the Supreme Court is considering the question reveals just how far the proponents of same-sex marriage have advanced their cause. The major question now appears to be whether the Court will rule broadly or narrowly on the issues at stake. A finding that DOMA is unconstitutional would lead immediately to a realignment of laws dealing with marriage at the national level and to an avalanche of litigation in the states. Just as urgently, such a decision would put a host of threats to religious liberty into action, threatening the rights of churches, religious institutions, and citizens who are opposed to same-sex marriage on religious grounds.
In the Proposition 8 case, the justices could decide not to rule on the constitutionality of same-sex marriage at all. They could rule that no party has legal standing to appeal the case before the Court, effectively allowing the previous rulings to stand. Such a ruling would limit the scope of the Court's decision to California. If, however, the Court decides to decide whether same-sex couples have a constitutional right to marry, its decision would be sweeping -- in either direction. In this case, the Court would decide if same-sex couples have a fundamental right to marry and if homosexual persons represent a protected class that deserve the status that triggers heightened scrutiny of any laws that might stigmatize them.
If the Court rules on these questions, the impact cannot be limited to the issue of same-sex marriage. The same "heightened scrutiny" and recognition of protected status would extend to virtually every legal corner of American life.
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Dr. R. Albert Mohler, Jr., serves as president of The Southern Baptist Theological Seminary -- the flagship school of the Southern Baptist Convention and one of the largest seminaries in the world.