The Briefing
April 29, 2015
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Wednesday, April 29, 2015. I’m Albert Mohler and this is The Briefing, a daily analysis of news and events from a Christian worldview.
1) Today marks historic day in Constitutional history with definition of marriage at stake
Yesterday was exactly what we thought it would be; a major day of constitutional drama before the United States Supreme Court with the issue of marriage at the center. But as we shall see, marriage never stands in this context as a single isolated issue. It was front and center.
Yesterday in the case technically known as Obergefell v. Hodges both sides made their case before the nine jurists of the United States Supreme Court. The nine justices were able to ask questions and in the repartee in the question and answer between the justices and the council for the two sides, there was an amazingly revealing series of moments. And as we look at the major media following the oral argument the assessment is no one knows exactly how the court will rule – don’t over read that.
When we look at the oral arguments before the Supreme Court one big question is always this: do they really matter? That’s a question that is naturally asked – whatever the issue and whatever the case – before the Supreme Court. The real legal action in terms of the reasoning of the Supreme Court comes before and after the oral arguments. In the first phase, after the court has granted what is known as a writ of certiorari, agreeing to take the case, then council for both sides in the case are invited to submit briefs, legal opinions with long legal arguments in order to make their case. Those briefs are read and digested, if not by the Justices, then by their highly trained law clerks before the oral arguments. It is on the basis of those written briefs and their analysis of those briefs that the Justices come into the session of oral arguments generally ready to ask the questions already on their mind.
But there is more to it than that because as the justices in the context of the oral arguments session hear other justice’s questions, hear the arguments made by council, and hear responses to other justice’s questions, it is clear the new questions do emerge. There are questions that were not premeditated that do come out in the process of the oral arguments. The other thing to keep in mind is that the oral arguments are just that – they are arguments. This is where the council for both sides have the opportunity to make their best case.
As I said, in terms of the big legal work the first part comes before the oral arguments the second comes after. What comes next is that the justices will digest these arguments and they will then enter into a conference. No one but the nine justices of the United States Supreme Court are in that conference. And during that conference it will become clear how the justices intend to decide the case; what the division will be among the justice.
If the Chief Justice of the United States is in the majority, he assigns who will write the opinion. If the Chief Justice is not in the majority, then the senior justice in the majority assigns who will write the opinion. The deciding opinion of the majority of the court is what is released along with any descending opinions, and thus we have – in terms of the written record – all of the briefs that are submitted prior to the oral arguments, we have the record of what takes place in the oral arguments, and then we also finally have the opinions handed down in terms of the court’s decision both in the majority opinion, any concurring opinions of the majority, and any dissenting opinions.
That’s a rather complicated process but that’s how the United States Supreme Court works and that points to the drama that took place yesterday. We should not assume that there were any minds changed in the process of the oral arguments yesterday. But that does not make it a meaningless process, and that’s because the justices get to ask the questions that in the main indicate what they see more often than not as the weaknesses in the legal arguments being presented to them. That’s one of the reasons why we should not over read the process of the oral arguments in terms of trying to infer how the court may eventually rule, because as was the case yesterday with Justice Anthony Kennedy – widely assumed to be the crucial fifth vote on either side of this argument, the so-called swing vote – it was clear that in his questions he appeared to be coming from two contradictory directions.
At one point, challenging even the authority of the court to redefine marriage and at the other point pointing to what he identified as the injustice of not allowing same-sex couples to wed. Those questions, if understood separately would seem to indicate at one moment that justice Kennedy is leaning towards saying that same-sex marriage is not a right, and then at another point it might appear that his question would certainly imply the opposite.
In the oral arguments yesterday the main attorney for the plaintiffs, that is for the pro-same-sex marriage side, Mary L. Bonauto, she called marriage,
“foundation of family life in our society”
She then suggested, very openly, that barring same-sex couples from the institution of marriage was a form of discrimination that, in her words, conferred a “stain of unworthiness” on those who are in same-sex relationships. One of the issues that was iterated and reiterated before the court was the fact that marriage throughout thousands of years has exclusively been the relationship between a man and a woman. Regardless of the form that marriage has taken in terms of its contractual structure, it has been the union of a man and a woman; it has been a universally heterosexual institution. That was reflected even in comments made by Justice Kennedy who said,
“The word that keeps coming back to me is ‘millennia,’ ”
Justice Kennedy himself pointed out that same-sex marriage has been legal in the United States for only about a decade. Justice Kennedy said,
“I don’t even know how to count the decimals,”
He went on to say,
“This definition has been with us for millennia.”
So, at the very least Justice Kennedy, assumed to be the swing vote in this decision, registered the fact in an open session of the Supreme Court that he understands what the court would be doing if it allows or requires the redefinition of marriage. But on the other hand Justice Kennedy also spoke quite openly of the fact that he believed, or at least his question implied, that barring same-sex couples from the institution of marriage was fundamentally unjust.
Justice Samuel Alito echoed the fact that marriage has always been a heterosexual institution as he said,
“until the end of the 20th century, there never was a nation or a culture that recognized marriage between two members of the same sex.”
It was Justice Alito who two years ago pointed out that same-sex marriage is more recent than the smart phone. Justice Scalia asked Bonauto if she knew of any country that had legalized same-sex marriage prior to the Netherlands in 2001. She said no.
As is often the case, mixed in with very heavy legal arguments were some moments of unexpected and unpremeditated levity. One of those came when Justice Alito suggested that there had been cultures that were more open-minded towards homosexuality, such as ancient Greece, that did not nonetheless move to legalize same-sex marriage. Asked respond to that Bonauto simply said,
“I can’t speak to what was happening with ancient philosophers.”
At another point in the argument Justice Kennedy suggested that perhaps not enough time had passed for the nation to come to a conclusive decision when it came to whether or not same-sex marriage was a legal obligation or for that matter something that was sociologically positive. In response to that Bonauto said and I quote,
“Waiting is not neutral,”
But in what I believe was the most important portion of the oral argument, the issue wasn’t just marriage but religious liberty. And in two very revealing exchanges the threat to religious liberty was made abundantly clear.
The first question and answer came between Justice Scalia and Bonauto. Scalia pointed out that same-sex marriage would, in his words, be unpalatable to many, many people of faith. He then asked Bonauto whether making same-sex marriage a constitutional right would force ministers, in his words clergy, to perform same-sex weddings. Bonauto replied with the answer, no. She said it would not, pointing out that no one currently requires ministers to perform any wedding ceremony.
That was around one, round two is far more important. In the second round Chief Justice of the United States John G Roberts Jr. address questions directly to another of the attorneys making the case for same-sex marriage. In this case, none other than the solicitor Gen. of the United States, Donald Verrilli speaking on behalf of the Obama administration. The Chief Justice speaking to Verrilli said,
“Counsel, I’d like to follow up in a line of questioning that Justice Scalia started. He said we have a concession from your friend [that would be been Bonauto] that clergy will not be required to perform same-sex marriage but there are going to be harder questions.”
The Chief Justice then asked,
“Would a religious school that has married housing be required to afford such housing to same-sex couples?”
That is exactly the kind of question we have pointed out is coming to every religious institution that understands marriage to be the union of a man and a woman and exclusively so. This is one of those religious liberty issues that simply cannot be avoided. The solicitor general responded to the Chief Justice saying,
“I guess what I’d… I’d like to make three points about that if I could.”
General Verrilli then said,
“…and I will, I’ll go right to the question you asked. The first one is of course this court’s ruling addresses what the states must do under the 14th amendment. And the second point is that when you get to a question like the one your honor asked, that is going to depend on how the states work out the balance between their civil rights laws, whether they decide that is going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under state law. And they could well… you know…. different states could strike different balances.”
I read the entire response of the solicitor general from the transcript so that you would hear every single word. The most important thing to note is that the solicitor Gen. of the United States, when asked directly if a religious institution that is opposed to same-sex marriage but nonetheless offers marital housing, if that institution will be required to extend that to same-sex couples, the solicitor general said that kind of question is going to be decided by the states based upon what kind of nondiscrimination law that they pass and what kind of accommodations are included in that law.
Now understand the threat that is then announced before the Supreme Court of United States to all religious institutions that will oppose this moral revolution. Notice is served by the solicitor Gen. of the United States in making argument that he hopes will win the day before the Supreme Court, that religious institutions are put on notice that our fundamental rights in terms of religious liberty, operating on the basis of our own convictions, is now in the hands – by his argument – of the states and whatever accommodations they may choose to put in the law in terms of accommodating our religious convictions.
The Chief Justice did not relent. He then asked the solicitor general,
“What about federal? It’s a federal question if we make it a matter of constitutional law.”
The Solicitor General responded,
“But the question of what, how the states use their enforcement power is up to the states.”
The Chief Justice and responded,
“Well you have enforcement power too”
The Solicitor General said,
“Right,”
Remember he is speaking on behalf of the Obama Administration and by reference to the Department of Justice on behalf of the United States government. He said,
“Right and, and well that’s certainly true but there’s no federal law now generally banning discrimination based on sexual orientation and that’s where those issues are going to have to be worked out.”
That is the solicitor general but remember it is his administration – that is the administration of President Obama – that is pressing for exactly the kind of legislation that he now argues doesn’t yet exist. You can almost count on the fact that in relatively short order it will exist in one form or another. And the Pres. has made his own decision by Executive Order to extend this kind of nondiscrimination policy as far as he possibly can.
The Solicitor General then went on to say,
“And I guess the third point I would make your honor is that these issues are going to arise no matter which way you decide this case because these questions of accommodation are going to arise in situations in states where there is no same-sex marriage, where there are, and in fact they have arisen many times, there are these commitment ceremonies.”
So what the Solicitor General of the United States said, and he said so repeatedly in terms of his response to the Chief Justice, is that regardless of how the court rules on this specific case, the threat to religious liberty is very real. As he said these cases are going to arise and as we know the questions are already coming and the threat is already apparent. But the solicitor general was not correct in saying that the case will be the same regardless of how the court rules. If the court rules that all states are obligated to legalize same-sex marriage that will create a different legal environment than if the question is left to the states.
But Christian should be particularly interested in a third round that appeared after the Chief Justice had concluded his questioning of the solicitor general on this matter. This came when Justice Samuel Alito pointed to a previous decision by the Supreme Court having to do with the case of Bob Jones University. He said,
“Well in the Bob Jones case the court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating,”
So Alito asked,
“Would the same apply to a university or college if it opposed same-sex marriage?”
Now before we get to the solicitor general’s response we need to insert here that when it comes to the case of Bob Jones University we’re looking at a very lamentable chapter in American religious history. We’re looking at a college that claim the right to discriminate in the way would not allow for interracial marriage or interracial dating – something that is not addressed in Scripture. The other thing we need to point out is that so far as I’m aware, Bob Jones University was the only institution of its kind with this kind of policy – that’s why it became the issue, that’s why it’s name is in that very regrettable Supreme Court decision.
But in the Bob Jones case the Supreme Court did rule that Bob Jones could lose its tax-exempt status, which it did, because of its policy. A policy what we should point out that the University has since abandoned, but nonetheless the precedent is there. But also what happened in terms of the oral arguments yesterday, the warning is there because when Justice Alito asked the solicitor Gen. of the United States if the Bob Jones case would create a precedent for an institution that opposed same-sex marriage, his response was, and again I quote in full,
“You know I, I don’t think I can answer that question without knowing more specifics. But it’s certainly going to be an issue. I, I don’t deny that. I don’t deny that Justice Alito. It is, it is going to be an issue.”
As is always the case in a transcript of a genuine conversation there are fits and starts and restarts to an argument, but the bottom line is the point that the solicitor general made; the point that he conceded in response to questions from the Chief Justice of the United States and from Justice Alito. He conceded that these are real questions, he did not stay in any way anything that would support the religious liberty of an institution that would limit marital housing to those the institution understand on the basis of Scripture to be legally and rightly married. It also is the case that the solicitor general, pointing to the issue of the tax exempt status of Christian and other religious institutions, said and here again I quote,
“it is, it is going to be an issue”
As we’ve often pointed out those who have been arguing for the legalization of same-sex marriage said, look nothing fundamental is going to change. Yesterday before the United States Supreme Court the solicitor Gen. of the United States admitted a lot is going to change – including not only the definition of marriage but our understanding of religious liberty. We would not normally on The Briefing give so much attention to the oral arguments session before the United States Supreme Court, but in this case that attention is more than warranted. It is demanded because what happened yesterday actually went beyond what many of us had expected in terms of where the oral arguments would ago and what the questions from the justices might address.
I appreciate the fact the Justices Scalia and Alito and Chief Justice Roberts addressed the question of religious liberty directly, I also appreciate in terms of candor, the fact that the solicitor Gen. of the United States did not dissemble and said openly this is going to be an issue. We knew it was the case, now it is in the transcript of the oral arguments of the United States Supreme Court. As I said in my opening comments about this issue, we should not draw a direct line from our hearing of the oral arguments or our reading of the transcript, to how we believe the justices will vote. But on this question we also need to understand that it is well assumed that there are four votes on both sides of this issue already because this doesn’t emerge from a vacuum.
We’ve had the same justices deciding basically the same kind of questions, especially going back two years to the Windsor decision. The swing vote then was Anthony Kennedy, it is expected that the same thing will be true now. But the issues are now more stark than they were even in the year 2013 in the Windsor decision. The oral arguments yesterday before the United States Supreme Court make that abundantly clear and it is clear, as we have said all along, that marriage is not a separable issue because it’s at the center of our civilization and at the center of every society when marriage is redefined, everything is redefined.
And on that point the Chief Justice deserves credit for another very insightful statement. As the oral arguments began yesterday the Chief Justice addressed attorney Bonauto arguing for the same-sex marriage side and said that as he had consulted the history of marriage, he had discovered that marriage had always been a heterosexual institution – a relationship between a man and a woman. He went on to say to Bonauto,
“If you succeed [meaning in her argument] that definition will not be operable”
The Chief Justice then said,
“You are not seeking to join the institution, you are seeking to change the institution.”
Regardless of how the court will rule in this case and regardless of the actual legal path the justices get to, in terms of making their decision, the reality is the Chief Justice of the United States has articulated exactly what is at stake as he said, and said rightly, those who are pressing for the legalization of same-sex marriage are not seeking to join the institution of marriage, they are seeking as he said to change it.
One final note as we look back to yesterday, a day that will long be remembered in legal and in moral history, we look back to an article that appeared a few weeks ago in the New York Times. I was saving it until now, a front-page article with the headline: The Case Against Gay Marriage: Top Law Firms Won’t Touch It. Adam Liptak, veteran observer of the Supreme Court looking forward then to the oral arguments, said one thing should be noted: there was no major American law firm that signed on to the argument against same-sex marriage. That is a radical departure even from two years ago in the Windsor decision when one the most prominent attorneys in the United States, Paul Clement himself a former solicitor general of the United States under George W. Bush, was the one who made the argument for the defense of marriage as the union of a man and a woman and the federal government’s right to define it so.
Just in terms of measuring the moral revolution that were now experiencing, just consider that front-page article that preceded the oral arguments. When you look at the oral arguments themselves not one major American law firm, fearing no doubt the loss of clients and social status on the other side of this moral revolution, would sign on to the argument in defense of marriage. You might say what a difference two years makes, but as the Chief Justice would point out, what a difference several millennia will make.
There are other issues in which we will turn in coming days but for this day there is no set of issues more important than these.
Thanks for listening to The Briefing. For more information go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For more information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to boycecollege.com.
I’ll meet you again tomorrow for The Briefing.
