The Supreme Court is expected to hand down rulings around the beginning of July 2013 that could change the legal definition of marriage. At stake is the 1996 Defense of Marriage Act—which upholds states’ rights to ban same-sex marriage and prohibits the federal government from recognizing the unions—as well as California’s Prop 8, which amends the state constitution to define marriage as between a man and a woman. Many experts think that the high court will strike down the language in the Defense of Marriage 
Act that defines marriage as between a man and a woman—but will likely sidestep the issue of California’s Prop 8 altogether. How will these decisions affect marriage, society and freedom of religion?
In Defense of Marriage
At issue in the Defense of Marriage Act is the language defining marriage as between a man and a woman for purposes of federal law, such as taxes and inheritance. Margaret Russell, a law professor at Santa Clara University in California, believes that the high court will likely rule that the legislation “creates two separate classes of marriage because some states allow same-sex marriage, leading to unfair treatment from one state to the next.” She said: “If you have legal marriages, then you can’t treat them unequally without adequate justification, and there isn’t adequate justification.” [1]
Trying to redefine marriage is problematic. Attempts to take gender out of marriage create a whole new set of problems. The law can’t just change “between a man and a woman” to “two individuals” without eradicating the basic, fundamental, God-given purpose of marriage as the tie that binds mothers to fathers and parents to their children. W. Brad Wilcox and Elizabeth Marquardt explain:
Throughout history, marriage has first and foremost been an institution for procreation and raising children. It has provided the cultural tie that seeks to connect the father to his children by binding him to the mother of his children. Yet in recent times, children have increasingly been pushed from center stage. [2]
“Genderless” marriages undermine the very purpose of this institution: to create families. The purpose of “genderless” marriages is to unite two individuals who really like each other, not to tie a husband and wife to each other and to their children. Homosexual partnerships have no procreative powers, and therefore have no need of the protections that obligate the mother and father to the children born to the union. The only way to circumvent this issue is to establish so-called “genderless” marriages—but those strip protections from society’s most innocent and vulnerable occupants: children. Our duty as adults is to provide for, protect and nurture our children. The Supreme Court can’t take their interests out of the equation in weighing this issue. It would be a tragic irony to strip innocent children of their rights to parental protection to favor adults who should be looking out for them.
Elder Dallin H. Oaks, a member of the Quorum of the Twelve Apostles—with the First Presidency, the governing body of The Church of Jesus Christ of Latter-day Saints, sometimes inadvertently called the Mormon Church—said:
… For thousands of years the institution of marriage has been between a man and a woman. Until quite recently, in a limited number of countries, there has been no such thing as a marriage between persons of the same gender. Suddenly we are faced with the claim that thousands of years of human experience should be set aside because we should not discriminate in relation to the institution of marriage. When that claim is made, the burden of proving that this step will not undo the wisdom and stability of millennia of experience lies on those who would make the change. Yet the question is asked and the matter is put forward as if those who believe in marriage between a man and a woman have the burden of proving that it should not be extended to some other set of conditions. [3]
This is one burden that the Supreme Court must carefully consider. The burden of proof is on those who are challenging the definition of marriage—not on those who would defend it. The court has the duty and obligation to not look at the limited perspective of what a group of people wants to happen. The justices must look at what benefit—or harm—would come from redefining an institution that has stood since the world began.
Why Sidestep California’s Prop 8?
In 2010, a Federal Court overturned California’s Prop 8, and the state itself has declined to defend the law. It is important to note that California voters approved the ban on same-sex marriages. A federal court decided this was unconstitutional and overturned the voters’ decision. So an ad hoc group of supporters is challenging the federal courts’ ruling. The Supreme Court could decide that this ad hoc group has no legal standing (or power) to defend the law. This would give the top court an “out” on deciding this issue. The result of this inaction would be that, by default, the lower court ruling would stand and same-sax marriage would be legal in California. This would not affect the other 35 states that have bans on same-sex marriage. [1]
Why would the top court do this? One glaring fact to which Supreme Court justices are sensitive is that they are not elected officials, they are appointed for life by presidents. And, “despite all the pomp and circumstance and tradition, the court ultimately relies on public opinion to hold power,” writes Richard Davis, a professor of political science at BrighamYoungUniversity. Thus, justices are not eager to make sweeping decisions that would overturn the laws banning same-sex marriage in nearly three-fourths of the states. As Davis points out, “If the public does not believe the justices have exercised good judgment, then the court is powerless to get anyone to pay attention to it.” [4]
How Does Freedom of Religion Fit In?
How does freedom of religion fit into the same-sex marriage issue? Elder Oaks said:
This is much bigger than just a question of whether or not society should be more tolerant of the homosexual lifestyle. Over past years we have seen unrelenting pressure from advocates of that lifestyle to accept as normal what is not normal, and to characterize those who disagree as narrow-minded, bigoted and unreasonable. Such advocates are quick to demand freedom of speech and thought for themselves, but equally quick to criticize those with a different view and, if possible, to silence them by applying labels like “homophobic.” In at least one country where homosexual activists have won major concessions, we have even seen a church pastor threatened with prison for preaching from the pulpit that homosexual behavior is sinful. Given these trends, The Church of Jesus Christ of Latter-day Saints must take a stand on doctrine and principle. This is more than a social issue — ultimately it may be a test of our most basic religious freedoms to teach what we know our Father in Heaven wants us to teach. [3]
Former Utah Gov. Mike Leavitt—who knows the conflict between public policy and religious liberty well from his tenure as secretary of Health and Human Services in the Bush administration—agrees that freedom of religion must not be lost in the debate over same-sex marriage. He said:
If through democratic processes our nation recognizes gay marriage and protects sexual orientation as a civil right, it need not and must not do so at the expense of religious freedom. Gay marriage and religious freedom should coexist. [1]
Leavitt also cautions against the Constitutional right to freedom of religion becoming “simply and solely the freedom to believe in the quiet of one’s own conscience, as long as the believer does not act on the belief in public.” He said:
Under this counterfeit definition of free exercise, expressions of faith— or opinions informed by faith— are unwelcome in the public square. [Religious] freedom is increasingly replaced by government restrictions. The list of examples has grown rapidly in recent years. [1]
The Constitutional rights to free exercise of religion as well as freedom of speech are foundational tenets of American society. Those on both sides of the issue should be able to agree to disagree—politely and courteously, with mutual respect for each other as a son or daughter of our Heavenly Father.
Is There a Compromise?
A democratic society flourishes when groups with differing views and agendas work together for the common good. But there are issues upon which those who value marriage and freedom of religion cannot budge—and that is redefining marriage to anything other than between one man and one woman. Indeed, society as a whole will suffer because its very foundation will be weakened. But there must be a way for both sides to work together for the common good. The Supreme Court rulings will not end the debates nor the legal proceedings. Whatever the decisions, more lawsuits are sure to follow. But that is the beauty of democracy in action. “One nation, indivisible, with liberty and justice for all.”
Additional Resource:
Family Is at the Heart of God’s Plan