The Supreme Court Redefines Marriage Part 1
July 19, 2015 Time: 26:02
Summary
Dr. Craig begins a series of podcasts examining the US Supreme Court's recent ruling on the definition of marriage.
Transcript The Supreme Court Redefines Marriage Part 1
KEVIN HARRIS: Dr. Craig, it has happened. We anticipated it in some past podcasts. We speculated that perhaps the Supreme Court would be making this marriage ruling and that it would fundamentally change our society. A couple of disclaimers first of all. We don’t pretend to be legal scholars. We want to look at the ruling and look at what the justices said and evaluate it from a philosophical and theological standpoint. In a couple of weeks from now after we look at the initial ruling I’d like to hear from you on where we go from here. What’s next? What does this mean? How should we prepare for this enormous ruling? You have made a few statements. Now that we are in the podcast, Bill, what are some personal reflections on this?
DR. CRAIG: I think it is tremendously tragic and also misconceived. I think it is tragic because it fiddles with a cultural institution that even the majority of the justices recognize lies at the very foundations of not only American culture but they say of human civilization itself. They have redefined this fundamental institution in such a way as to deny really that it has any essence. It is now whatever five unelected lawyers on the Supreme Court declare it to be. But I also think it is terribly misconceived because when I look at the decision and I look at the arguments they give for thinking that two men can marry each other or two women can marry each other, these arguments to me don’t seem to hold water. I think it is both unfortunate and quite mistaken the decision that the Court has made.
KEVIN HARRIS: It has got social ramifications, but what about for our democracy, our way of governing ourselves?
DR. CRAIG: This was, I think, the primary concern of the dissenting justices. Their dissents in this case are just excoriating of the majority. I’ve never read dissents that are filled with the degree of sarcasm and ridicule even of the majority. Scalia says in his dissent that even if he could be in the majority by being a fifth vote on this he would be embarrassed to be part of an opinion that is so poorly written and so much a departure from the great opinions that justices have written in the past. They think that this opinion is one that, in the words of Scalia, this Court has made a decision which threatens American democracy. Those are incredible words. The dissenters think that what has happened is that they have removed the decision from the people to these five lawyers – that is their term. They don’t call themselves five “justices.” They say five “lawyers” from Harvard and Yale on the Supreme Court unelected by the people have now made a decision to fundamentally alter American democracy. Alito, Scalia, Roberts – they are all very concerned about what this says for American democracy.
KEVIN HARRIS: The dissenters pointed out that one of the principles that the majority of the Court ignored was this principle of restraint when it comes to the Court, rather than being adventurous and trying to change society. That is not their job.
DR. CRAIG: That is very interesting. Alito points this out. He says that the Court itself has criteria for when they can find implicit rights in the Constitution as opposed to explicit rights such as those that are delineated in the Bill of Rights where you have the right to bear arms, you have the free exercise of religion, there is freedom of speech. Those are explicit rights. But for the Court to say, Here is an implied right that is not delineated but it is hidden in there somehow, as Alito says the Court itself has said that these rights have to be deeply rooted in this nation’s history and tradition.[1] He says it is beyond dispute that the right of two men to marry each other, for example, is not deeply rooted in American history and tradition. It is a radical departure from it. So the Court has thrown restraint to the winds and read this implicit right into the Constitution that the framers of the Constitution would have been astonished at. So much of the dissent concerns this constitutional question: has the Court correctly read the Constitution and exercised this judicial restraint that the Court says it should in finding implicit rights?
KEVIN HARRIS: Many have said that it was also very hasty of the Court to make this ruling in that American culture was trying to come to terms with this new world and how do we handle same-sex relationships?
DR. CRAIG: There is no doubt about that – there has been a huge shift in American public opinion about this. Partly because of earlier court decisions striking down state laws and amendments and referenda that said that marriage is between a man and a woman essentially. So public opinion has been changing. I think some of the justices thought that this process should have been allowed to run its course and let the American public come to a decision on this. People like Roberts and Scalia in their dissent said we don’t have any brief to carry for traditional definitions of marriage but this ought to be left to the states to decide. This process has been aborted by this Supreme Court decision which, again, failed to let the democratic process run its course.
KEVIN HARRIS: There are people who are more open today to the idea of civil unions, but not to redefine marriage.
DR. CRAIG: I think it is important to understand that that really is what the Court has done here. Some folks think: They have not really done anything radical here. They have simply allowed people of the same-sex to enjoy the benefits of marriage that people of the opposite sex have been able to. What’s the big deal? I think what these folks don’t understand is that what the Court has done is to redefine marriage. Kennedy recognizes this in the majority opinion. Referring to the traditional view, he says that in the traditional view marriage is by its nature a gender-differentiated union of man and woman. Those words are important: by its nature. Kennedy recognizes there that on the traditional view it belongs to the essence of marriage that it is a heterosexual union. He says this view is now obsolete and needs to be done away with. So they are overt that they are changing the essence of marriage. They are changing the nature of marriage and redefining it. In fact now, as I said earlier, what they’ve done is they’ve deconstructed marriage so that it no longer has a nature or essence but can be whatever five lawyers on the Supreme Court determine it to be. They have deconstructed marriage so that now it can be whatever anyone, or anyone in power I should say, want to make it.
KEVIN HARRIS: Greg Koukl said something along the lines of: marriage is not defined, marriage is discovered. It is one of those things where the definition is literally discovered rather than just randomly defined. Kind of like truth. Truth is not determined; truth is discovered. Marriage is so.
DR. CRAIG: Yes. I agree with that. For that reason I think that this isn’t in a sense even an issue that the states should have the right to determine. I don’t think that the states have the right to define marriage. But that seems to be the view of the minority of the Court that constitutionally the regulation of marriage is not a federal issue; it is a state issue. That was why the Supreme Court earlier declared unconstitutional the Defense of Marriage Act, which had been passed by the United States Congress and signed by President Clinton into law. It was now federal law that marriage is inherently a man-woman union. The Court struck this down. Why? Not because they said same-sex marriage is implied in the Constitution, but because this is a states’ rights issue. The states have the right to regulate marriage, not the federal government. Therefore this congressional law and presidential signature was unconstitutional.[2] They threw it back into the laps of the states. But then in a sort of catch-22 when the states tried to support the traditional view by passing amendments and referenda that say marriage is a man-woman relationship, then the Court turns around and declares those unconstitutional because they have found this implicit right to same-sex marriage in the Constitution of the United States. So they put the states – really the American people – in an impossible situation. It is a real power play by the majority of liberal justices on the Court what they have done here.
KEVIN HARRIS: It is too late now for the states to do anything. The states can’t do anything. This is the law of the land.
DR. CRAIG: The only thing that could happen now would be for the Court to reverse itself. In the future, some more conservative justices might be appointed and this might be revisited and reversed. But the experience with Roe v. Wade and the whole abortion rights issue shows how unlikely such an eventuality is.
KEVIN HARRIS: Or at least how long it would take because there is a move away from Roe v. Wade but how long has this taken? Years.
DR. CRAIG: It is not enough. It hasn’t made a difference on the Supreme Court. It is still five-to-four in support of abortion on demand in this country. This decision now follows again five-to-four in the steps of Roe v. Wadee in reading implicit rights into the Constitution that aren’t really there. In a sense this decision is the echo or the reverberation of Roe v. Wade that legalized abortion on demand in this country because it is very much the same sort of decision. Taking the decision power away from the people in the states and investing it in five lawyers on the Supreme Court to read hidden rights into the Constitution that the minority justices would say are purely imaginary.
KEVIN HARRIS: You said something earlier about how fast public opinion has changed – breathtakingly fast – over a period of five, six, ten years. It is just a reverse of public opinion. You said it was due to some of the court cases. Do you think it is because the law is a great teacher?
DR. CRAIG: I do think that when the Court makes a decision, that does influence public opinion. If the Court had upheld things like the referendum made in California or the state laws in Oklahoma and elsewhere declaring that marriage is inherently a man-woman union, that would have affected public opinion, I think, in quite the opposite way. But when the Court continually strikes these down, I do think that that tends to shape public opinion so that it begins to change. Obviously there is a lot more influences here: culturally, the influence of Hollywood, the entertainment industry, activists for same-sex marriage. But the decisions of the Court shouldn’t be underestimated in their ability to change public opinion. I think this one will do this as well.
KEVIN HARRIS: The majority opinion has said,
The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution even as confined to opposite sexual relations has evolved over time. For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns. But by the time of the nation’s founding it was understood to be a voluntary contract between a man and a woman.
Then they go on to the old doctrine of coverture – a married man and woman were treated by the state as a single man-dominated legal society. Where they are going with this it seems is even though marriage is very central (as they say – a human institution and very, very ancient; one of the most central in human history) that it has not been impervious to change. That brings up things like multiple-wives-marriage in the Old Testament, arranged marriages, and things like that. So they say why not just change it again?
DR. CRAIG: This is their rationale. They recognize that they are changing or redefining the essence of marriage in doing this. Part of the rationale they give is to say that marriage has changed over the years[3] They give these examples like the ones you mentioned. In the past parents often arranged the marriage of their children. So if that can change, why can’t we change marriage to no longer be a heterosexual union? I think this argument is difficult to take seriously. These other ways in which marriage has changed have been not the essence of marriage. They have been trivial contingent properties of marriage. In fact, in some parts of the world like in India . . . when I visited there I found talking to folks parents still do arrange the marriages of their children in India. But the essence of marriage is the same. It is essentially a man-woman relationship even if parents might be more involved in India then they are, say, here in the United States. I find this almost disingenuous on the part of the Court to think that these kinds of trivial changes would justify saying that it no longer belongs to the essence or nature of marriage to be a heterosexual union.
KEVIN HARRIS: The Court seemed to acknowledge that protecting the right to marry is that it safeguards children and families and this draws meaning from related rights of childbearing, procreation, and education. They seem to have heard the arguments that children do better (according to research) in a man-woman relationship – a mother and a father. The ideal, and the research still shows, that the best place for a child is in a male-female, mother-father, relationship. This denies a child that arrangement through adoption, things like that. That child who is adopted into a family may be adopted into a loving gay couple but it certainly falls short of where research shows a child best flourishes.
DR. CRAIG: That is right. I was really shocked when I read the four reasons that the Court gave for allowing a constitutional right to same-sex marriage. The third one of these was as you mention that marriage safeguards children and family. This is so ironic because it is precisely because of that that marriage needs to be preserved as a man-woman relationship. Mark Regnerus, the professor at the University of Texas-Austin, has done the most extensive research in the lives of children raised by same-sex couples. As you say, the research shows that these children are significantly disadvantaged educationally, socially, and in other ways. You remember we did a podcast some weeks back by a young woman who is promoting the rights of children in saying that children should not be disadvantaged by being placed in these same-sex arrangements and thereby denied the right to a mother and a father.[4] This has been a whole new movement now that has arisen among adult children of same-sex couples.
KEVIN HARRIS: They say don’t do it.
DR. CRAIG: Protesting that their rights have been abridged by this. Far from justifying same-sex marriage, this third reason that the Court gives is one that provides very strong grounds for preserving traditional marriage.
KEVIN HARRIS: It is as if To heck with the children, my romantic notions take precedence over that.
DR. CRAIG: The children have been sacrificed on the altar of the satisfaction of the adults’ desires.
KEVIN HARRIS: Fourth and finally, this Court’s cases and the nation’s traditions “make clear that marriage is a keystone of our social order. Marriage is the foundation of the family and of society without which there would be neither civilization nor progress.” They are making a nod toward marriage, but then say But we are not going to hold to the tradition.
DR. CRAIG: These reasons are bizarre, aren’t they? The fourth reason is that marriage is a keystone of our social order. It is absolutely fundamental to society. And therefore two men should be able to be married to each other. Or two women should be able to be married to each other. It seems a non-sequitur to me. It is certainly true that in our American society, married couples enjoy benefits that singles do not have. For example, filing income taxes. You can file jointly as opposed to separately, which single people can’t do, right? But does that provide a rationale then for saying two men can be married to each other? No, not at all. It just doesn’t follow any more than three people can then enjoy the benefits of marriage by filing jointly their income taxes.[5]] You just wonder when you read this how could the Court have seriously thought that these reasons justify same-sex marriage?
KEVIN HARRIS: I read one commentator who said that the Court’s ruling on paper sounded like a seventh grader’s Facebook page post to her friends. Just flowery. I am looking at it – what does it have to do with the Constitution? This is very philosophical. There is a lot of philosophy in this and social engineering.
DR. CRAIG: Oh, it is social engineering. I totally agree. They have turned marriage into a purely conventional arrangement that is defined by the majority justices of the Supreme Court which, of course, changes over time. So it is purely conventional. You can look at this decision from two angles. You can look at it from the constitutional angle and say, Have they provided convincing arguments that there is an implicit constitutional right to same-sex marriage? Or you can look at this opinion from a philosophical standpoint and say, Have they given good philosophical arguments for denying that it belongs to the essence of marriage to be heterosexual? I am very skeptical that they have satisfied the constitutional issue, though as you say we are not legal scholars. But with regard to the philosophical question, I think these reasons are fanciful – that these would supposedly justify redefining marriage to remove heterosexuality from its essence.
KEVIN HARRIS: By the way, no disrespect to seventh graders. I know some very smart seventh graders. It was very flowery, almost like a post that you would read somewhere on a social media that is very flowery and romanticized.
As we wrap up the podcast today, this is the nod to America’s religious opposition to same-sex marriage when you read this paragraph:
Finally, it must be emphasized that religions and those that adhere to religious doctrines may continue to advocate with utmost sincere conviction that by divine precepts same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths and to their own deep aspirations to continue the family structure as they have long revered. The same is true for those who oppose same-sex marriage for other reasons.
There seems to be here at least a nod in the direction of those who are opposed to redefining marriage.
DR. CRAIG: Yes. They are trying here to quiet concerns that religious liberty will be infringed by redefining marriage in the way that they have. The reason that fear is real, I think, is because marriage is not a private institution. It is a public civil institution. If you are a wedding photographer who doesn’t believe in same-sex marriage and a same-sex couple comes in and says I want you to take photos of our wedding ceremony and you find this repulsive and immoral, nevertheless the law requires you to go and take those photographs because marriage is a civil institution and you must obey the law with respect to that regardless of your private opinions. Many of the justices were concerned with how this is going to shake itself out in American society in trampling upon the rights of those who disagree with same-sex marriage for philosophical or religious reasons. This is going to play itself out now over the next several years. It will be very interesting to see what happens. Will military chaplains, for example, have to perform same-sex wedding ceremonies among military members? Things of that sort.
KEVIN HARRIS: We are out of time. We will pick it up right there with Dr. Craig on our next podcast. So many of you I know see the importance of what we are talking about and the importance of these next several podcasts that we are going to be doing on this topic. Please go to ReasonableFaith.org, and not only can you get more information and commentary on this topic from Dr. Craig (including in the question and answer section) but you can also partner with us. You can donate and keep these podcasts spreading all over the world. If you believe in this message please support us. Your financial and prayer support is such a blessing. You can click on “Donate” when you go to ReasonableFaith.org. I’m Kevin Harris. We will continue this topic next time with Dr. Craig on Reasonable Faith with Dr. William Lane Craig.[6]