God appears exactly twice in the U.S. Supreme Court’s decision in Obergefell v. Hodges, which held that gay marriage is a constitutional right in America. Both mentions come in Clarence Thomas’s dissent to the majority opinion: Once, he cites the 1754 writings of the English churchman Thomas Rutherforth, who argued that the only restraints on liberty are “the law of nature, and the law of God.” Toward the end, he also quotes the Declaration of Independence, noting that the Framers established their vision of rights based on the dignity bestowed upon them by their Creator.
God probably deserved a little more credit than he received in the footnotes of the case’s four dissents, also authored by Samuel Alito, John Roberts, and Antonin Scalia. In their own ways, each of the justices defended the “traditional” definition of marriage—or, in less veiled language, a certain Judeo-Christian understanding of marriage as an institution created and commanded by God.
But they can’t write that in a Supreme Court opinion. “If conservatives say [marriage is] one man, one woman, ordained by God, they’ve just violated the First Amendment, because they’ve basically said, this is now a religious establishment,” said Mark Graber, a constitutional law professor at the University of Maryland. “It highlights a dilemma for conservatives.”
Kennedy’s decision has been hailed on the left for the new right it created for LGBT Americans, but under different circumstances and with differently gendered nouns, it might be recognized as something much different: as a conservative love letter to the institution of marriage. He hails the “transcendent importance of marriage,” a “union unlike any other” which “[promises] nobility and dignity to all persons.” He argues for the importance of children and families, and claims that marriage is “a keystone of the Nation’s social order.” He even quotes Alexis de Tocqueville.
Undoubtedly, Obergefell was a victory for the left, but it also represents a split in the conservative understanding of marriage. Social conservatives have long cheered the institution as essential to a stable society, because it is the foundation of families. But over time, explaining why those families need to involve both a mom and a dad in purely secular terms has become more complicated. “It turns out, when you take God out of the equation, you have a great deal of difficult stating any very good secular reasons for denying same-sex couples the right to marry,” Graber said.
Alito writes that “states formalize and promote marriage … in order to encourage potentially procreative conduct within a lasting unit that has long been thought to provide the best atmosphere for raising children.” But most recent studies contradict that last part; gay parents, researchers have found, are just as capable of raising kids well as their straight counterparts. Roberts points toward the history of the institution, the “thousands of years of human history in every society known to have populated the planet.” But the purpose of marriage has shifted over time; and even in the American context, it’s no longer widely understood as a union of a male breadwinner and a female nurturer. As Kennedy writes, “The history of marriage is one of both continuity and change … That institution—even as confined to opposite-sex relations—has evolved over time.”
Understood in the context of the justices’ faith, though, the minority’s arguments for traditional marriage seem much more robust, even if they’re still debatable. The Court’s four dissenting Catholics belong to a Church that sees heterosexual marriage as a sacrament, a sacred moral duty—a Church, it’s worth noting, that is putting renewed emphasis on the importance of heterosexual parenthood under the leadership of Pope Francis. Many of the conservative, mostly evangelical Christians who have vehemently opposed same-sex marriage believe something similar: Marriage is an institution created and commanded by God, and it is “biblically understood” to be between one man and one woman. (Kennedy is also Catholic, which only shows how much diversity there is in religious interpretations of marriage and sexuality.)
That Supreme Court justices have to offer legal arguments rather than rely on professions of faith in interpreting American laws is a feature, not a bug. But it can also be awkward to talk in exclusively secular terms about an institution that many Americans see as deeply religious—and this is as true of the majority opinion as it is of the dissents. For all the soaring rhetoric about marriage in Kennedy’s decision, said Andy Koppelman, a constitutional law professor at Northwestern Law, it’s not exactly clear why marriage is a fundamental right according to the Constitution. “Every reason that [Kennedy] cites is a reason why same-sex marriage is a good idea,” he said. “But it’s not clear that they’re legal reasons. Not every good reason is a legal argument.” For Kennedy, marriage is about dignity and happiness, just as for Alito, Roberts, Scalia, and Thomas, it’s primarily about procreation; both of these are first-principle claims. In part, the division among the justices comes down to their opinions about what the Court should do in a case like this. As Roberts writes:
Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law.
“This whole area of the law is troubling in the sense that one doesn’t like the Court just making it up,” Koppelman added. “Kennedy is vulnerable on that score: He hasn’t got a good answer to the claim that he is just making it up.”
Regardless, here we are; this is the decision America got. Now that the Court has resolved the legal question of same-sex marriage, there may be more clarity in the opposition to same-sex marriage. Russell Moore, the head of the Southern Baptist Convention’s policy arm, called on Christians to defend an increasingly counter-cultural, “biblical” understanding of marriage. The head of the United States Conference of Catholic Bishops, Joseph E. Kurtz, called the decision “a tragic error that harms the common good and most vulnerable among us.” It’s not just Christians, either: The Orthodox Union, a Jewish organization, issued a statement to “reiterate the historical position of the Jewish faith, enunciated unequivocally in our Bible, Talmud and Codes, which forbids homosexual relationships and condemns the institutionalization of such relationships as marriages.” Yet many conservative leaders have paired their opposition to gay marriage with a call to care for those who identify as gay (or, as some phrased it, who experience “same-sex attraction”). This framing may only be possible because the goal has changed; marriage in this country can now be treated entirely as a cultural and religious question, rather than a political and legal one.
As for those social conservatives who forecast the certain decline of “a keystone of the Nation’s social order,” perhaps they should look to Alito’s dissent, in which he cites his own writing in United States v. Windsor: “At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.”