Moderated by Tom Sabulis
The Supreme Court’s decision to not deliberate on same-sex marriage was a big victory for gay rights and should allow allow same-sex marriages to move forward in 30 states. But not in Georgia, where it remains legally banned. Today, we hear from an Emory University law professor who writes about the court’s surprising non-decision, and a Baptist pastor who criticizes it. Also, a Georgia State University professor tells why she believes the state’s ban harms children.
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Court’s surprising no-decision
By Tim Holbrook
On Monday, the Supreme Court did something no one expected: It refused to hear any of the cases striking down same-sex marriage bans.
Most observers thought the court would either grant review or delay any action to see whether any lower appellate courts would find such bans constitutional. But it didn’t wait and, by declining to hear the cases, allowed same-sex marriages to begin in Utah, Oklahoma, Wisconsin, Indiana and Virginia. In fact, wedding bells have already started to ring in Virginia.
The court’s action will impact more than those five states. Bans in other states within the jurisdiction of these appellate courts will also fall. For example, the decision by the U.S. Court of Appeals for the Fourth Circuit only addressed Virginia’s marriage ban. But the Fourth Circuit also covers West Virginia, North Carolina and South Carolina, all of which ban same-sex marriage. Those states will soon have to allow same-sex couples to marry, as will Wyoming, Colorado and Kansas. In total, 30 states will soon have to allow same-sex marriage because of the Supreme Court.
The court’s refusal to hear these cases does not mean it has endorsed marriage equality, however. The court has not decided the issue and could address it in a future case.
From the Supreme Court’s perspective, though, at present, there is little reason to grant review. The court typically intervenes when lower courts disagree on an issue. When courts disagree, the litigants and courts will have vetted both sides of an issue rigorously. As to same-sex marriage bans, however, there is as yet no disagreement; every federal appellate court to consider the issue has found such bans unconstitutional.
The Ninth Circuit on Tuesday joined the chorus, invalidating bans in Nevada and Idaho, with bans in Montana, Arizona and Alaska soon to follow. If all the federal courts of appeal end up agreeing with each other, the Supreme Court may never have to address the issue — something the justices might find attractive.
Additionally, the Supreme Court may want some of the complexities of these issues further explored by lower courts. The legal issues are more complex than the lay observer may realize. Although every appellate court so far has found same-sex marriage bans unconstitutional, the courts have differed on the reasons why.
Some have found that, because marriage is a fundamental right, the bans violate the Due Process Clause. Others have rejected that argument, instead invalidating these bans on the grounds of equal protection. The courts also disagree on whether sexual orientation should be treated as a “suspect class,” like race or gender, which would make it more difficult for states to justify same-sex marriage bans. Even within this seemingly simple issue, there is a host of issues that may have led the court to delay intervening at this time.
The decision not to take the cases, though, is still surprising. Same-sex couples will be able to marry in the five states where courts held the bans unconstitutional. If the Supreme Court, in some future case, ultimately holds that same-sex marriage bans are not unconstitutional, there will be thousands of married same-sex couples in these states whose legal status will be in doubt. The validity of those marriages would need to be litigated, along with other collateral issues like adoption and divorce.
What does all of this mean for Georgia? In the short term, nothing. No court has found Georgia’s same-sex marriage ban unconstitutional. There is a pending lawsuit challenging the ban, but briefing on Attorney General Sam Olens’ motion to dismiss the case will not be completed until later this month. A decision will not be forthcoming for some time. Additionally, the federal appellate court in which Georgia lies, the Eleventh Circuit, has yet to address the constitutionality of these bans from any state in its jurisdiction. The ban in Georgia remains in place for now.
But soon, 35 states will allow same-sex marriages. Georgia is increasingly an outlier on this issue. Some view the Supreme Court’s action Monday as the writing on the wall for same-sex marriage bans. Federal judges in Georgia and the Eleventh Circuit may take the hint and invalidate such bans. That would put Georgia on the right side of history and keep the Supreme Court out of the issue.
Tim Holbrook is associate dean of faculty and professor of law at Emory University School of Law.
Our individual moral menus
By J. Gerald Harris
The Supreme Court on Monday turned away appeals from five states looking to prohibit gay marriage, effectively legalizing same-sex marriage in those states and likely others, but basically leaving the issue unresolved nationally. The decision to not strike down gay marriages may dramatically expand across the nation a decades-long movement to legalize such unions.
Tony Perkins of the Family Research Council explained, “By refusing to get involved in a mess (they) helped create, the justices are leaving our laws vulnerable to rogue judges on the lower courts … who insist on substituting their radical ideology for history, legal precedent, and the consensus of voters (41,020,548 Americans voted to pass marriage referendums) and the law.”
The Bible is clear in its position on homosexuality, in both the Old Testament and the New Testament (see Leviticus 18:22-23 and 20:13, I Corinthians 6:9, I Timothy 1:9-10 and Romans 1:26-27). Therefore, since the Bible is absolute truth and our standard for living, the sanctity of marriage between one man and one woman is obviously God’s plan for our society.
However, we live in a day of religious relativism, tolerance and philosophical pluralism, a day of “individualized moral menus.” Thus, when we have a “whatever-I’m-feeling” morality, the individual becomes the authority over the government, the laws of the land, the church, the Bible and even God. It is like the day in the Book of Judges when “there was no king in Israel; every man did that which was right in his own eyes.” Without some common moral compass, the tendency is toward anarchy.
H. Richard Niebuhr, who taught at Yale for over 30 years, ultimately exposed the fatal weakness of liberalism by saying, “a God without wrath brought men without sin into a kingdom without judgment through the ministrations of a Christ without a cross” (“The Kingdom of God in America,” 1937). We now are seeing the weakness of that liberal message come to fruition.
Another great concern I have is that the Left’s advocacy of same-sex marriage is beginning to have a considerable impact on our freedoms in general. Ask college football analyst Craig James. He made only one appearance on Fox Sports Southwest before Fox Sports cut ties with him, because of his controversial comments on gays during a failed 2012 Senate race in Texas. He had stated that being gay was “a choice,” and gays would have to answer to the Lord for their actions.
Ask Aaron and Melissa Klein, who owned a small Oregon bakery in Gresham. The couple, who have five children, declined because of their faith to make a wedding cake for a same-sex couple. The Kleins have been forced to shut down their storefront because of boycotts and harassment and are facing up to $150,000 in penalties in a discrimination case against them.
It would appear that in many cases, people of faith are not expected to just tolerate same-sex marriages, but to celebrate them. Perkins has also suggested that a wedge is being driven between parents and children as school curriculum is changed to contradict the morals Mom and Dad are teaching at home, and that the true goal is not about the marriage altar, but fundamentally altering society.
How are we as Christians suppose to treat those who are engaged in a homosexual lifestyle, those who are in an adulterous relationship, or those who are trapped in some kind of addiction?
The Bible clearly tells us that we are to demonstrate an unconditional love for them — a love that prays for them, tells them the truth, warns them of the consequences of sin, points them to Christ, and doesn’t waver even if it is rejected or fails to produce a change; a love like the father had for the prodigal son, that continues even if the prodigal chooses not to come home.
We are all sinners, and there is no little sin, because there is no little God to sin against. The good news, however, is that “if any man be in Christ, he is a new creation: old things are passed away; behold, all things are become new” (II Corinthians 5:17).
J. Gerald Harris, a Baptist pastor, is editor of the Christian Index, a newspaper of the Georgia Baptist Convention.
Hurting Georgia’s kids
By Tanya M. Washington
The net effect of the Supreme Court’s decision is that same-sex couples can legally marry in 30 states and the District of Columbia. The court’s reticence to rule on the constitutionality of marriage bans does not change the reality for same-sex couples in Georgia, who are prohibited by statute and constitutional amendment from marrying.
It also leaves tens of thousands of children in limbo, subject to laws that compromise the legal status of their parent-child relationships, which in all other contexts are considered to serve their best interests.
Imagine a service woman relocates to Fort Benning with her same-sex partner and child. The couples’ marriage, and the child’s relationship with her non-biological parent, are automatically void in this state. When the child’s biological mother is deployed overseas, the child has no legal parent authorized to enroll her in school or make medical decisions on her behalf.
This scenario highlights the harmful impact of Georgia’s same-sex marriage ban on children in same-sex families. The state’s discriminatory marriage laws do not serve children’s best interests, despite attempts to characterize them as child protective measures. In truth, Georgia’s exclusionary marriage laws deprive children of a legal parent-child relationship with both parents and denies them the right to litigate parentage, visitation and custody in our state court.
In the wake of the Supreme Court’s decision in United States v. Windsor, more than 40 state and federal courts have ruled state marriage bans unconstitutional. Some courts invalidated state bans as violating equal-protection guarantees; others ruled the bans infringed upon same-sex couples’ and families’ substantive due process rights. These decisions are not binding on the court deciding the constitutionality of Georgia’s marriage laws; however, they have fueled support for the recognition of same-sex marriage in the courts of law and public opinion, and they express relevant analysis and arguments that the court cannot ignore.
Chief among the claims made by states defending laws against marriage equality is the justification of the bans as child welfare measures. Courts in other jurisdictions have carefully considered 35 years of empirical data examining gay parents and outcomes for children in same-sex families. This relatively closed universe of data reveals that children in families headed by a same-sex couple experience positive outcomes, and reflects overwhelming support for the finding that allowing same-sex couples to marry benefits children in same-sex families.
Georgia offers no new arguments in defense of its marriage laws and proffers no new data to support its assertion that its ban serves children’s interests. Attorney General Sam Olens has advanced arguments that have been routinely rejected by other courts.
Why deploy the resources of the Georgia attorney general’s office and taxpayers’ money to fight legal battles the state is positioned to lose? The question is not whether Georgia’s attorney general can defend the state’s marriage laws; the question is whether he should. A cost-benefit analysis suggests the candle is not worth the wax, particularly when victory victimizes children.
Tanya M. Washington is an associate professor at the Georgia State University College of Law. She teaches family law, civil procedure and race law.