Today’s oral arguments heard by the U.S. Supreme Court could be some of the last steps to establishing a nationwide right for same-gender couples to marry, a decision likely determined by Catholic Justice Anthony Kennedy’s swing vote. Either way, after oral arguments are concluded and a decision is announced by the end of June, much will remain the same for Catholics.
America covered the issues at play when the Supreme Court initially agreed to hear these cases in January, highlighting the two questions under consideration: whether there is a nationwide legal right to same-gender marriage and whether states must recognize such marriages made legal in other states.
In the America essay, St. John’s University legal scholar Ellen K. Boegel explained that because there are two questions, this “leaves open the possibility for a split ruling” depending on how justices interpret the 14th Amendment’s Equal Protection’s clause, where states would be required to recognize other marriages without granting licenses of their own. A piece in U.S. Catholic covered the five major arguments, coming from both sides, that will likely be voiced during oral arguments tomorrow:
1) The precedent of a 1972 Minnesota case, Baker v. Nelson which denied a gay couple access to marriage “for want of a substantial federal question.”
2) The question of states’ rights: “a tug of war between the 14th Amendment’s guarantees of due process and equal protection, and the rights of states—and, by extension, voters—to make their own laws.”
3) The place of procreation in marriage. Some say that the state is involved in marriage to guaranteed stable parenting for children, and that lesbian and gay people do not procreate with one another. Others say extending marriage to gay and lesbian couples can reduce the amount of children in foster care by creating a larger pool of adoptive families.
4) The question of whether it is better for children to be raised in families headed by heterosexual couples. No legitimate studies show this option is more successful, and courts have not clearly settled this question yet.
5) The power of history and tradition in the institution of marriage. Though we have seen many developments in the institution socially over the centuries, the power of history and tradition can be a powerful argument, some legal scholars say.
This potentially historic decision is still a few months away, but certain ecclesial realities will remain for LGBT and ally Catholics after the Supreme Court decides. First, Catholics will sustain and hopefully grow existing high levels of support for marriage equality and LGBT rights with New Ways Ministry’s Francis DeBernardo telling Crux:
” ‘Even if the Supreme Court should decide negatively in this case, Catholic lay people will continue their work to make sure that their lesbian and gay friends and relatives receive equal treatment under the law.’ “
Combative stances towards marriage equality on the part of many U.S. bishops will remain in place, as well as the lack of nondiscrimination policies and laws to protect LGBT church workers, almost 50 of whom have publicly lost their job since 2008. Phrasing these as “fired because you’re married” incidents, The Advocate reports:
” ‘Any time there are civil rights advances and increased visibility … we will have some adverse reactions,’ adds Evan Wolfson, founder and president of Freedom to Marry, who as a lawyer and activist has fought for LGBT rights, particularly marriage equality, for more than 20 years. That’s not a reason for the marriage equality movement to back off, but it is a reminder that there will still be work to be done even when there are equal marriage rights nationwide, he says.’ “
Further, the question of religious liberty remains unsettled even as a recent victory in Indiana has somewhat chilled conservative hopes for such laws. This issue has not gone away, and 27 states still have bills under consideration.
There are also internal questions for the church about how same-gender couples and their families will be provided pastoral care and better integrated into parish communities. Additionally, Catholics who oppose marriage equality will have to make peace with this new reality as this societal shift begins to take root everywhere. While the global church is adjudicating these questions during the synodal process and next fall’s World Meeting of Families, American parishes may soon have to find just and inclusive solutions if marriage equality becomes legal nationwide.
–Bob Shine, New Ways Ministry
Hamilton-Griffin.com: “Will Justice Kennedy Go All the Way on Same-Sex Marriage?”