I was asked yesterday to contribute to an online symposium at National Review Online about the implications of the Supreme Court decisions on marriage. Here’s my contribution:
From a legal standpoint, the Supreme Court’s decision on DOMA is extraordinary and far-reaching. Our entire legal history and tradition regarding marriage continues to be dismantled. Nobody can know what will come from redefining thousands of federal statutes and regulations — wherever the words “marriage” or “spouse” appear. It will take decades to know the ultimate legal consequences.
But there is a deeper meaning. We have been engaged in a great struggle for the soul of our society, and the souls of individuals. The battleground has been over the nature and significance of marriage, and why people should choose marriage as the centerpiece of their lives. We have long been contending against a hostile culture.
This task will go on, regardless of whatever the law might be. Families, schools, and churches will all continue to teach the authentic meaning of marriage — one man, one woman, lifelong, faithful, and inherently oriented to having children. But the terms of engagement have dramatically changed. The Court’s ruling will make our mission more difficult, by branding the real meaning of marriage as mere bigotry, hatred, and irrationality.
In a way, though, this may enable us to become more effective teachers. The big lie at the heart of the Supreme Court’s decision — that same-sex relationships are the same as real marriages — cannot ultimately gain sway over the hearts of people. It is false, and deep in our hearts we know it. And it will only highlight the contrast between the false values of a corrupted society and legal system, and the true virtues of authentic, loving married couples.
The law is a great teacher, and this Supreme Court decision teaches a lie. But the truth about marriage will continue to be attractive to people, who always prefer truth to lies.
Many of the other contributors took a “it’s not as bad as it could have been” approach. I’m not convinced. The expansive, dismissive language of the majority opinion — claiming that bigotry alone supports laws defending real marriage — will certainly be used by future litigants to attack the laws of the states that have not yet gone over the edge. Same-sex “marriage” advocates have already begun predicting that it will only be a matter of five years before they will succeed in overturning all those state laws.
The language of the decision will also be used in the public square to shape the debate, by branding us as the equivalent of racists. Soon, the media won’t even try to obtain and present our side of the story. There won’t be much of a debate, if only one side is allowed to show up.
The Court’s ruling on the Defense of Marriage Act will also shape the implementation of a wide range of federal laws, which reach far into every recess of American life. Think only of ERISA (which governs employee benefit plans and pension plans) and the Affordable Care Act (which governs health insurance plans), and you can see how significant will be the redefinition of “marriage” and “spouse” under federal law — every benefit plan, and every health insurance plan, will likely have to cover benefits for same-sex “spouses”.
The potential for conflict with religious liberty and conscience rights will be just as severe as with the HHS mandate.
Likewise, we can easily see a time when the IRS will play a role. When it scrutinizes the policies of organizations that seek (or already have) tax exempt status, what will happen when it finds that an organization “discriminates” against same-sex couples in employment, benefits or services? Will “discriminatory” churches be denied tax exempt status, or have it stripped from them? Remember, the old saying, “the power to tax is the power to destroy”.
While I continue to be optimistic that people will see through the lie in the Supreme Court’s decision, as an attorney I’m pessimistic. People will still choose authentic marriage, and we will continue to teach about it, and call people to it. But from a lawyer’s perspective, it’s very difficult to see a future that is free of continuing legal and social pressure and conflict, all designed to make us conform to the new view of marriage, and punishing us if we fail to do so.