By Scott Tibbs, April 2, 2013
Justice Scalia asked a great question during oral arguments last week on whether California's constitutional amendment forbidding state recognition of homosexual marriage violates the Constitution of these United States: "When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?"
The reason this is a good question is that it would be silly to assume that any of the arguments that "banning" homosexual marriage is a violation of equal protection under the U.S. Constitution would have been accepted by the men who wrote and voted to ratify the Constitution or any of the amendments to it, especially things that were written and ratified in the Nineteenth Century. The historical context is important in considering the legal arguments.
Of course, homosexual marriage is not "banned" in any state in the nation. Homosexual couples are free to get married in any church that is in rebellion against God's ordained sexual order, and there are no serious proposals on the table to re-introduce sodomy laws. There is no law preventing homosexuals from living as they choose, but their union will not be officially recognized by government.
In fact, the institution of marriage as recognized by government has always been restricted. You cannot marry a close family member, you cannot marry someone under the age of consent, and you cannot marry more than one person or someone who is already married. There is a movement within the Unitarian Universalist "Church" to push for polyamory. If we officially recognize homosexual marriage, what is the legal justification for not recognizing polyamory - or, eventually, for lowering the age of consent? Watch for both soon.
What has been maddening in hearing clips of the arguments is hearing Supreme Court justices discussing the policy implications of government recognizing homosexual marriage. The low-information media has been covering this case as if it is a political matter before a legislative body. This should be obvious, though to far too many people it is not - deciding policy is not the purpose of the Supreme Court. The purpose of the Supreme Court is is to decide constitutional law. The justices' views on policy are irrelevant to the question of constitutionality.
One major implication for constitutional law is the effect government sanction of homosexual marriage will have on religious liberty. Does anyone really believe that Christian business owners will not be required to treat married homosexual couples the same as married heterosexual couples in terms of family insurance policies and so forth? This is just one of many examples of where Christians will be ordered by the state to bow to the new definition of marriage or face legal sanction and punishment.
The law has always been a moral agent, and there is value in the law reflecting traditional Biblical sexual morality. Restraining our sexual impulses is important for a healthy, productive society - but as I explained yesterday we lost that battle two generations ago. All we have left is to pray for God's mercy and for the Holy Spirit to bring revival.
