Link Thursday (#4): Obergefell v. Hodges: The “True” Definition of Marriage


I apologize for not getting this out on Wednesday. I also realize that these “Link Wednesdays” are turning into substantial posts in themselves. Let me know if you prefer substantial posts for Wednesdays or ones with links and very minimal annotation at ilostmyprayerhanky At gmail.


What is the purpose of marriage? Is it to produce children? Is it to enable people to connect emotionally over a lifetime? Does it have more than one purpose?

At stake in the Supreme Court case Obergefell v. Hodges is whether or not states are required to give marriage licenses to same-sex couples and to recognize marriage licenses issued by other states. The summary of the oral arguments and amicus briefs for and against are here, here, here, and here.

This post will look in detail at the religious freight brought to bear in the amicus brief submitted by The Coalition of Black Pastors and Christian Leaders, aka The Coalition of African-American Pastors. Amicus Curiae are documents submitted by persons strongly interested in a case but not actually involved in it. I am interested in this case, because Black Protestants make up the next biggest opponent of same-sex marriage behind White evangelical Protestants. Since I am somewhat familiar with evangelical religious reasoning against same-sex marriage, I was curious to see if there was overlap with Black church leaders’ legal reasoning.

Here are their three major arguments that will be covered in turn (page numbers from the document will be cited parenthetically):

  1. The caseLoving v. Virginia does not create marital inclusivity as far as the plaintiffs wish
  2. Unelected courts should not decide on morality; that should be left to legislation and the People
  3. The Sixth Circuit Court did not have to employ strict definitions in considering the states’ marriage laws (iii)

Before going into the argument, the pastors and Christian leaders provide a glimpse into their identity and aims in this quote:

For Amici, the Bible expresses sound, ethically-grounded doctrine upon which individuals beneficially rely regarding family matters. Amici bear the responsibility to oppose unsound, morally-relative doctrines and to oppose practices that are harmful to the following of God’s time-proven teachings. Amici, therefore, hold a vested interest in a State’s right to correctly define marriage (1; bold mine).

On to the arguments.

The case of Loving v. Virginia (1967) had to do with anti-miscegenation laws. Anti-miscegenation laws were found unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment.

The plaintiffs in Obergefell v. Hodges argued that denying marriage licenses violated the Equal Protection Clause, using Loving v. Virginia as precedent. The Amici do not see this as valid for a few reasons.

Their big one involves the first alternative use of Loving in Baehr v. Lewin (1993). Baehr held that sexual orientation was a “suspect class” like race was in Loving. Suspect class is “a class of individuals that have been historically subject to discrimination” so that their involvement in a discrimination case is subject to “strict scrutiny.” To survive this level of judicial scrutiny, a State has to have had a compelling reason to limit fundamental rights and narrowly defined the law so as not to engage in discrimination. Examples of suspect classes subject to strict scrutiny include race and religion. One of the questions at stake is whether marriage is a fundamental right.

The Amici argue that the Supreme Court in Loving never contemplated or addressed same-sex marriage (7). This argument gets at origins. In this line of thinking, the closer reasons (practices, beliefs, etc.) are to some group’s original intentions, the more authority it carries. What’s interesting about this originalist interpretation is that the Founders never envisioned African-American voters, but here we are. Time brings out new questions, and, many times, new answers.

They go on to say that “Loving emphasized the importance of marriage to all Americans, in the true sense of the word” (8, bold mine). Words do not have true senses. They have definitions based on how people accept them. If I say someone is gay, you aren’t going to think I’m meaning it in the “true sense” of happy. Why is marriage cordoned off from this ability to change meaning over time? Is it because so many personal investments revolve around how its definition?

And yet, the fact that words do not have eternal, true senses does not mean that definitions are merely idiosyncratic either. While words can be defined however a group wants to define them that does not mean words change meaning overnight. It takes time and people agreeing with definitions. If I say tomorrow that “marriage” means that someone likes chocolate, good luck with that catching on, particularly considering my readership numbers.

These rhetorical strategies of “origins” and “classification” go back to what I have covered on practice and community. The use of origins is a great strategy, because it gives your case a sense of establishment, authority (based on heroes at the beginning of a discourse), and longevity. Sometimes, it is also used to ignore all the intervening steps (history) between the proposed origin and the present (See Monica Miller’s post on labels). However, it also serves the religious element in Lincoln’s system of religious discourse in attempting to make historically contingent facts beyond dispute: religion is at least “temporal, contextual, situated, interested, human, and material dimensions of those discourses, practices, and institutions that characteristically represent themselves as eternal, transcendent, spiritual, and divine.” In other words, this move to origins is meant to stop argumentation, because origins are where authority rests. If God isn’t the authority in this case, it is the immutable and inerrant Founders, treated much the same way as inerrant Scripture.

The Amici also move beyond legal reasoning to employ the “true definition” of marriage, again, using classification. Classification in political (one can easily argue that religion involves this same discourse since it too manages relationships between parties) discourse is never neutral or apolitical. So when they employ Robert Reilly to give the true definition of marriage–the context where the “procreative and unitive purposes of sex” (14-15, no. 13) occur–debate is curtailed, because by definition, same-sex couples cannot be married since they cannot procreate with each other, and therefore, do not meet both of the required elements. I’m not going to try to insult your intelligence too much, but following that definition, here are some heterosexual acts and statuses that should bar a person from marriage:

  • women with hysterectomies
  • men with vasectomies
  • the elderly
  • couples who do not wish to have children
  • couples who engage in any sex act that does not finish inside a vagina
  • contraception
  • abortion
  • divorce, because this eliminates the possibility of future children
  • post-menopausal women

This list is not exhaustive, but it shows that the State is not merely interested in defining marriage by the bare fact of procreation. What does it reveal about the “true definition” of marriage? I suggest that it at least shows that interests beyond the State’s are at play, and I would argue that they are religious ones. The definition is not beyond dispute but reflects the interests of the pastors. You can be the judge of how much or little specific religious discourse should play a part in judicial discourse. The aim of this blog is to uncover the strategies at play among religious and sex discourses. I have around five pages of single-spaced notes on the brief if you care to discuss this further. There is much I left out that I could have covered and that someone might say I overlooked. If so, comment or email me. Otherwise, I await the Court’s decision which might come out today.

A Change for This Link Wednesday


I had said in last week’s Link Wednesday that I would offer two strong cases each for and against same-sex marriage in light of the upcoming decision in Obergefell v. Hodges. However, I have decided to provide the arguments each side makes in the case. Then I will comment on their relation to religion, if any, as I have been discussing the topic for the past few weeks. Hope to see you on Wednesday.