Is the Same-Sex Marriage Debate “Roe v. Wade” or “Brown v. Board of Education”?

Monday, April 27th, 2015

This week the Supreme Court is beginning to hear the oral arguments in a landmark decision which will either strike down all legislation banning same sex marriages, or it will uphold state prohibitions against same sex marriage. Most legal observers say it is likely that by this summer same sex marriage will become legal in all fifty states and be officially and legally the equivalent of what has historically been called “marriage.”

However, it is too superficial to think of the Supreme Court decision in terms of a simplistic “yes” or “no” to same sex marriage. The more important thing to notice this summer will be the REASON behind the “yes.” The accompanying legal opinion document will be one of the most scrutinized in American history. I had the privilege of spending a few days with a nationally known lawyer who explained to me why the grounds were so important to lawyers who will be watching the cases. I will try to sum up the gist of the conversation. There are two basic legal grounds upon which the ruling in favor of same sex marriage might be developed. Depending on which argument is used, the implication for Christians who affirm a historic Christian position regarding the definition of marriage is great. These two legal arguments are known as “animus” and “accommodation.”

An “animus” reasoning would argue that it is an unreasonable harm and an act of personal injury to deny anyone full access to same sex marriage, including every conceivable privilege associated with it, including photographers and flowers and dance floors, not just a state license. If the ground is “animus” then it is, essentially, a kind of “Brown v Board of Education” type decision. That 1954 decision was a landmark civil rights case. If “animus” reasoning is used, then homosexual behavior would legally become a civil rights issue, not a moral behavior issue. If that occurs, then no accommodations for those who disagree are allowed. To refuse to sell flowers for a same sex marriage would be a violation of their civil rights. (The point here is not about whether one should or should not sell flowers for a same sex marriage, the point is whether someone should be granted the freedom to not sell flowers if their conscience objects to it).

The other possible grounds for same sex marriage would be an “accommodation” ruling. This would acknowledge that America is a pluralistic country where people are free to choose their own state of happiness. Thus, same sex marriage will be accommodated right alongside of traditional marriage. However, (and this is the crucial point) an accommodation ruling does not require common consent. If the ground is “accommodation” then it is, essentially, a kind of “Roe v Wade” type decision. That 1973 decision accommodated abortion, making it legal in all fifty states, but because it was not argued on “animus” grounds, any American is free to oppose abortion, preach against it, and to refuse to support it if their conscience dictates otherwise. There are marches on Washington opposing abortion, even as it is available in all fifty states.

I hope that the Supreme Court will uphold our right to lovingly disagree with the broader culture on the issue of same sex marriage. We will surely get a landmark ruling this summer. I am hoping that those of us (personally and institutionally) who disagree with the wider culture on same sex marriage will retain the right to keep on disagreeing.


  • Ted Jarvis says:

    Thank you Tim. Very helpful information in understanding and reacting to this important yet decisive decision.

  • Mary Page says:

    Hmmmm thanks for the laymen’s explanation of law. It was lovely and easily understandable. It avoided the emotional issues which cloud the gist of it.

    I wonder what Jesus would say? We all know the laws, the history, what the church says and the opposite side. In the decision some where I would like to know what Jesus would say since we have no direct quote from scripture from him. I do not believe we have the whole story of all he said. It would be good to hear “The Word” within the law. God and Jesus are in the Law. 🙂

  • Pat Slater says:

    Cannot get these to share to Facebook. With such good info as this I think it is important to share it, but it keeps saying… file not found

  • Mark says:

    The definition and practice of “marriage” will keep evolving. The real question before the Supreme Court is not gay marriage, but freedom of thought, speech and the right to private property. It is good to ask what Jesus would say, but recognize that Jesus was crucified for having and speaking the wrong opinions. Our Constitution was designed to keep that sort of thing from happening. There are few remaining legal strictures controlling sexual behavior, and people are already free to define their happiness and create ceremonies of all kinds. There are plenty of churches to accommodate them. This ruling is not about creating or preserving liberty, but denying it to those who dissent.

    • Jan Dillard says:

      Regarding the statement above from “Massachusetts Friend”: “When God established marriage as one man & one woman in Genesis He expressed it as a positive definition, not a negative “ban” on other couplings.” I respectfully disagree. This is likening scripture to the “Jack Sparrow” school of theology. (See below)
      When the character Elizabeth demands to be returned to shore, according to the rules of the Order of the Brethen of Pirates –she is “set straight” by the captain of the ship:
      BARBOSSA: “First. Your return to shore was not part of our negotiations nor our agreement, and so I ‘must’ do nothing. Secondly: you must be a pirate for the pirate’s code to apply. And you’re not. And thirdly … the code is more what you’d call guidelines than actual rules. Welcome aboard the Black Pearl, Miss Turner. ”
      My point, is that in using scripture to interpret scripture, is that there are certainly negative bans on the practice of “other couplings” and I do not believe it is ours to call them “guidelines” that are to be settled according to our current location, time of living, or civil laws.

  • Dave Nuckols says:

    The issue here is marriage equality and the closer parallel is the former ban against interracial marriage. Supreme Court ruled such bans unconstitutional in 1967 when only 20% of policy opinion approved. Today just about everyone approves. By contras,t for same sex marriage, we already have polls showing 52-61% of Americans are for legal marriage equality for gay folk.
    Arguments against same sex marriage similar to previous arguments against interracial marriage:

  • Dave Nuckols says:

    RE: comparison to court action vs. interracial marriage bans, check out this analysis from the Wall Street Journal:

  • Mark S. says:

    The polls on this issue, like so many issues, are fluid and subject to media influence, so I am not convinced that the majority is really OK with redefining marriage. When put to an actual vote most states have kept to the traditional definition of marriage.

    Many of those who have thought deeply about whether the central defining characteristic of marriage for over 4 thousand years should be jettisoned are troubled, particularly by the strategy and tactics that have been employed in the light-speed effort to reinvent marriage. It seems that many activists want this over and done with before people have really had time to think about it.

    And then there’s the cognitive dissonace. Today liberals seem convinced of the importance of redefining marriage to include same-sex couples. Just a few years ago they were declaring marriage an outdated social institution. Clearly there is more involved than simply a desire for statutory rights (which could be provided without a wholesale redefinition of marriage).

  • Alan B. says:

    Thank you Dr. Tennent for this most helpful clarification on an essential legal distinction. I’m still confused however. I assume that most legal cases surrounding women’s rights issues have been decided in courts based on animus “civil rights” reasoning. Yet Southern Baptists and Roman Catholics still deny women full ordination into ministry and priesthood. Is their church doctrine “legal” as tested in U.S. courts or are churches exempt from being sued even on the basis of animus reasoning? (i.e. how much influence can this most recent Supreme Court Case decision have on doctrine and practice in all our churches if decided on animus reasoning? I pray not much!)

    • Scaramouche says:

      To Alan B: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The laws dictating who gets ordained (or doesn’t) belong to each individual church and/or denomination. Not to legal entities. Hope this helps.

      • Alan B. says:

        To Scaramouche et al: Congress has passed laws in the past restricting both the doctrine and practice of polygamy among those of Mormon faith. And I believe all churches are bound to obey basic civil rights legislation in practices of hiring, firing, etc. at risk of being sued if they do not (for which my church carries liability insurance if a legal question ever arises). Franklin Graham and other Evangelical leaders came out today with a strong statement “warning the Supreme Court” that, if they continue down this path, churches across America may find it necessary to practice “civil disobedience” in reaction to what may be required of them. Unfortunately the church at large in America is seemingly asleep at the wheel as to what may be at stake in this current court case. Thank God Dr. Tennent is helping to sound the alarm!

  • Mark S. says:

    A rational foray into the consequences and pardigm shifts that will likely result from marital redefinition.

  • Bob Brooke says:

    As clear and understandable a statement on the Supreme Court’s decision on same-sex marriage as I have found anywhere. Thank you Dr. Tennent.

  • Kit says:

    This is a really helpful article, Tim! Thank you very much.
    Please give my greeting to Julie!

  • Thanks Tim, for a well-written article for us “laypeople.” May I offer a semantic clarification? The statement “. . . either strike down all legislation banning same sex marriages, or it will uphold state prohibitions against same sex marriag” repeats the mis-characterizing language of SSM proponents. Laws defining marriage only as “one man & one woman” do not ban/prohibit people from entering unions outside that definition. The laws simply recognize (and yes, extend certain legal/financial benefits to) traditional marriage because bearing & raising productive children within this time-tested union best serves the state’s interests for a stable & civil society. SSM proponents want those same benefits, but the state can’t financially accommodate every “marriage variation” without consequence. Upholding one paradigm over others isn’t a “ban” . . . anymore than saying my decision to homeschool discriminates against public and private school institutions. It would be silly to have my kids trying to juggle all three to avoid offending other educators . . . I’m simply giving my kids the benefit of what I think works best for our family. When God established marriage as one man & one woman in Genesis He expressed it as a positive definition, not a negative “ban” on other couplings. By using the other side’s loaded, emotionally-charged language we have allowed them to more heavily influence in the debate in their favor.

  • Great clarification – I hope my blog readers will read this additional insight. Thanks!
    Timothy Tennent