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.