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Questions, answers about Supreme Court, gay ‘marriage’ comment (0)

April 4, 2013

Questions, answers about Supreme Court, gay ‘marriage’

Following are commonly asked questions about the Supreme Court’s two days of arguments in the gay “marriage” cases.

Q: What issues were the justices deciding?

A: The constitutionality of two laws: the federal Defense of Marriage Act (DOMA) and California’s Proposition 8. Passed and signed into law in 1996, DOMA has two main sections: 1) It gives states the option of not recognizing gay “marriages” from other states and 2) it defines marriage for federal purposes and federal benefits as being between a man and a woman. Only the second section of DOMA was in front of the court. But even though the court did not deal with the DOMA section that affirms states’ rights, it nevertheless could get to that issue with the Prop 8 case. Prop 8 is a constitutional amendment adopted by California voters in 2008 that defines marriage as between a man and a woman. California is one of 30 states that define marriage within the state constitution in the traditional sense. Another 11 states define it that way via statute. Nine states recognize gay “marriage.” 

Q: What are the possible outcomes of the cases?

A: If the court strikes down both DOMA and Prop 8, then gay “marriage” could be legalized in all 50 states. But there are other possible outcomes, including the upholding of both as constitutional. Based on the oral arguments heard by the court, though, that type of sweeping victory for social conservatives seems unlikely. If the court arguments are any indication, it seems more likely that the court will overturn the DOMA section at issue while at the same time not even ruling on the constitutionality of Prop 8, thus keeping the issue — for now — a state matter. Predictions, though, can be tough, as proven in 2012 when most court-watchers thought the justices would overturn the historic health care law, only eventually to see the court uphold it.

Q: If the court avoids ruling directly on Prop 8, what happens to the issue nationwide?

A: A ruling that skirts the constitutionality of Prop 8 would limit the lower court’s overturning of Prop 8 to California. Under one scenario, the court could rule that ProtectMarriage.com — the official sponsors of Prop 8 — did not have “legal standing” to appeal the decision after Prop 8 was overturned by the federal district court. “Standing” became an issue when the governor and attorney general of California chose not to appeal the decision. Politico.com reported that under that scenario, the district court’s ruling “could end up being limited to only the couple of counties and state officials named as defendants in the lawsuit.” The court also could dismiss the petition as “improvidently granted” — that is, justices could say it should not have taken the case in the first place. Justice Anthony Kennedy — a swing vote — seemed to open the door for either scenario when he said there’s a “substantial question” on standing and said, “I just wonder if the case was properly granted.” A majority of the justices seemed to be in favor of punting on Prop 8’s constitutionality. 


Q: Where did the justices fall on the broader question of gay “marriage” legalization?

A: Kennedy, as he often does, made comments friendly to both sides. Conservatives were heartened to hear him express concern about going into “uncharted waters” and note that “we have five years of information” on the impact of gay “marriage” “to weigh against 2,000 years of history or more” on the impact of traditional marriage. But liberals noted Kennedy also seemed concerned about the “legal injury” to the “40,000 children in California” who live with same-sex parents and want “their parents to have full recognition and full status.” But, as previously noted, Kennedy also implied that the court should not be considering Prop 8. The court’s liberal wing — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elana Kagan — all made comments friendly to gay “marriage” legalization, with Kagan rejecting the notion that traditional married laws can be tied to procreation. But all four justices also questioned whether the court should be hearing the Prop 8 case. And Sotomayor heartened social conservatives when she said in the DOMA arguments that “states control” marriage, although she said it in the context of the DOMA case, not Prop 8. Three of the four members of the court’s conservative wing — John Roberts, Antonin Scalia and Samuel Alito — expressed concern about gay “marriage” legalization. Roberts said marriage, throughout history, “developed to serve purposes that, by their nature, didn’t include homosexual couples.” Conservative bloc member Clarence Thomas did not ask questions. 

Q: Which side won oral arguments? 

A: Potentially both, simply because there are two laws at play. If the DOMA section in question is struck down, it would be a win for social liberals and would grant gay couples in the nine states where gay “marriage” is legal the federal benefits of marriage. But if the court also gives deference to states on the issue of marriage, it would leave in place traditional laws in the remaining 41 states — with the possible exception of California. That would be mostly a win for social conservatives. Kennedy made comments in support of state rights. 

Q: When will the court issue its decisions?

A: Most likely in June.

Q: Where is public opinion on the issue?

A: Polls are showing a small majority in support of gay “marriage,” although there’s evidence that polling is off, at least some. That’s because — as the argument goes — a portion of the population is giving only the “socially desirable” answer to pollsters. Chris Stirewalt, digital politics editor for Fox News, noted in a March 26 column that among the approximately 30 states that have voted on traditional marriage, pre-election polls “have underestimated support” for the traditional side in all but one instance. He quoted New York University political science professor Patrick Eagan as saying pre-election polls underestimate support for traditional marriage laws by 7 percentage points. “There is more to this than simply the difference between the electorate and the general population,” Stirewalt wrote. “Some folks are lying to pollsters.”



Thoughts from Alabama Baptist leaders


“No matter what the Supreme Court may decide, God as well as nature have made clear that the relationship known as marriage can only be between two people of the opposite gender. It is time to use common sense in defining terms and then address issues of relationship recognition apart from the charged atmosphere of unnecessary redefinition. Love may not be gender specific but marriage is.”
Ron Madison, pastor of Mount Zion Baptist Church, Huntsville

“God began civilization in Genesis 1 with the institution of marriage between one man and one woman. Any other application of the term ‘marriage’ is twisting those principles set by our Lord in the beginning of humanity. Our country appears ready to establish our ways apart from those of nature as set by God. Our country is headed toward that status explained and condemned in Romans 1, as we are stretching beyond the bounds of nature and natural relationship.”
John Killian, pastor of Maytown Baptist Church

“The institution of marriage benefits our society, particularly children. Whatever the Supreme Court decision, marriage that is not between a man and a woman is not marriage at all. Any new way to define marriage is detrimental. Why? The reason given for the change is fairness and opportunity to marry for all. So any redefinition of marriage opens the door for ‘fairness and freedom’ to be extended to all types of amoral relationships. Our society is not better for it. Our (believers’) source of truth is Scripture and when we deny its teachings as our moral absolute, we are in trouble.”
Donna Wright, small group and assimilation, West Mobile Baptist Church

“Unfortunately, we have two very intense sides in this battle. We who favor traditional marriage see it as a moral issue. I don’t think people of faith should relax their views on what is morally right. But I suspect whether we like it or not, the other side will win on this battle because they have successfully framed it as a human and civil rights issue. In a pluralistic society, we face the reality that there are lifestyles that do not agree with our values. But I don’t think that we should step back from our faith. I don’t want Christians to become faint of heart.”
D’Linell Finley, pastor of Southlawn Baptist Church, Montgomery

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