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Focus on the Family Daily Broadcast   >>   All Episodes

Responding to the Supreme Court Decision on Same-Sex Marriage

Air date 06/29/2015

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Responding to the U.S. Supreme Court Decision on Same-Sex Marriage – Dr. Al Mohler and Professor Helen Alvare join Jim Daly to talk about the recent decision on same-sex marriage.

Episode Transcript

Opening:

Excerpt:

Dr. Al Mohler: We do believe that God spoke and gave us His definition of marriage and He gave us all of Scripture and we're obligated to obey it and it's not changing.

End of Excerpt

John Fuller: That's Dr. Al Mohler. He's president of the Southern Baptist Theological Seminary, describing the path forward after Friday's Supreme Court decision about same-sex marriage. He joins us today and also with us by phone, Helen Alvaré, professor of law at George Mason University. This is "Focus on the Family" with Focus president, Jim Daly and I'm John Fuller.

Body:

Jim Daly: John, Friday's decision by the Supreme Court is a seismic shift in how we understand marriage and family in our culture today and it will be that for generations to come. It was a monumental decision, which see as very negative for the nation and we are gonna talk about that.

But think about this for a minute. For thousands of years, mankind has upheld the importance of one-man, one-woman marriage. I mean, that's been it for over 5,000 years and it's the way society functions. A man and a woman meet. They marry and they bring children into the world and hopefully, they raise them and they stay committed lifelong to that commitment of marriage.

But now that's beginning to unravel and the whole redefinition is underway as to what it means to be a family, but there is hope and we want to talk about that today. The Supreme Court may have made a decision to define marriage in their view, but God's definition of marriage is unchanged and I think you're gonna hear that loud and clear from our guests today.

Let me welcome them back to the program. Helen and Al, it's great to have you back on "Focus on the Family.

Professor Helen Alvaré: Thank you.

Al Mohler: Jim, it's always good to be with you.

Jim: Helen, let me start with you. The decision from a legal standpoint, you're the professor of law, when you heard of the majority ruling what were your first impressions?

Helen: When I heard it was Justice Kennedy, I presumed and I was correct, that he was relying upon former sort of personal philosophical statements of belief that belong to him and four other people on the Court in order to find a constitutional right to same-sex marriage.

I can't say this strongly enough. This isn't a matter of opinion. There simply isn't anything in the Constitution that could give rise to this. What the Court did was locate a right to same-sex marriage in something called the Due Process Clause of the 14th Amendment. The Due Process Clause says that the State will not take away life, liberty, property without due process.

Some years ago the Supreme Court said that gives them the right to create non-textual rights and fill in what we mean by "liberty." They used to say that we could only create those rights if they had a history in tradition to them already or you simply couldn't imagine "ordered liberty" in the United States without them.

Today the Kennedy opinion says, well, we used to say that's the test. Now I'm gonna say, that's a guideline, but really what I want to say is, that we can announce the existence of constitutional rights, even if they're not in history and tradition, even if just today people really think they're part of freedom, self-fulfillment and personal identification.

Jim: I mean and that in so many ways just feels like it is unAmerican, unconstitutional.

Helen: It's rarely the case that very, very dramatic words are correct, right? We always like to think nothing's black and white except just a very few things. But in fact, we really are in a situation where Justices Scalia and Roberts in their defense, got it right. This is not democracy. Scalia just says democracy is over and Justice Roberts said, this has nothing to do with the Constitution. This isn't legal. It's a personal musing. Scalia called is "metaphysical musings like a fortune cookie wrapper, but unrelated to the law."

I mean, this is the sort of language that we're getting and it actually is true--languages about right to nobility, companionship, freedom from loneliness, self-definition. These are all just made up in the mind of Justice Kennedy and four others.

Jim: Al, that's very frightening when you think about it. Five of the nine Justices had the power to make this decision and in some of that dissent--whether it was Thomas or Alito or Roberts or Scalia--they all seem to say, this is way beyond the powers given to the Court. What happened?

Al: Well, what happened is, is that the Court followed the trajectory of its own making and in particular, a trajectory that was very well demonstrated, lamentably so, by Associate Justice Kennedy in his decisions in Lawrence in 2003 and Windsor in 2013. And he amazingly enough, cites himself as precedent and authority in the decision that was handed by the majority today [Friday, 6/26/15].

And what he's arguing is, is that the Court, just as Professor Alvaré said, the Court has the right to invent new rights. It's claiming that every single person who served on the Supreme Court before them operated only out of animus.

As the dissenters noted, this is a vilification of the opposition here and the opposition is a majority of the States of the United States of America. And they say the only reason there'd be any opposition to same-sex marriage is a false kind of moral animus and it's devastating, Jim. When you start to look at this, when Scalia says, a government that operates on the basis of the moral judgments of nine unelected judges, doesn't deserve to be called a democracy, we are really in big trouble here.

Jim: Now you gotta slow down on that one, Al, because I read that and I had to read it again. Say that again. I mean, that was one of the dissent comments, that this is not a democracy.

Al: Well, Justice Scalia just straightforwardly said that a system of government that relies on the moral judgments of nine unelected judges does not deserve to call itself a democracy. That wasn't said by someone in an ivory tower in the 1940s. That wasn't said by someone standing on the street corner, yelling it, you know, with a sandwich board. That was said by a Justice of the United States Supreme Court.

Jim: It's just amazing. Some of those minority comments, their opinions, really caught my attention. In fact, one of them said this: "Perhaps recognizing how its reasoning may be used, the majority attempts toward the end of its opinion to reassure those who oppose same-sex marriage, that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools." That is chilling.

Helen: For people who want to take a look at this, you can find a[n] opinion easily online. On page 27 of the majority opinion, Justice Kennedy says, "Religions can advocate that same-sex marriage should not be condoned. They can teach that this is the case," but that's all he says.

So, instead of the language of the First Amendment that guarantees religious citizens the right to free exercise of religion, we've been reduced to advocating and teaching. And all four [who] dissent take notice of this and say, this isn't enough.

But I want to point out to people, you know, there's been a furor about religious freedom in connection with same-sex marriage, especially in the recent year. Under a 1990 opinion, which sadly was authored by Justice Scalia, the Court dramatically reduced the amount of protection given to free exercise and said, if a state makes a law that's neutral on its faith, like everybody, same-sex marriage, opposite-sex marriage, they're both good. If the law does not target religion on its faith, it doesn't single it out, then even if it burdens religion, the burden has to stand. The law will not fall if it's a rational relationship to a legitimate state interest.

The Supreme Court today has said, same-sex marriage isn't only rational, but as you've said before, it would be irrational to deny it, says Justice Kennedy today [Friday, 6/29/15], because it's about the very dignity and personhood of people. In the environment that he's just set up and he did make the comparison with the racists who opposed interracial marriage, in this environment, it is really going to be a tough row to hoe to get religious freedom.

Sure we have the Religious Freedom Restoration Act, but the Court years ago limited that to apply only to federal laws. States with Religious Freedom Restoration Acts, sure, they have more protection for religious freedom, but even that protection for religious freedom must fall if the state says it has a compelling state interest.

Well, Kennedy has basically written the brief today [Friday, 06-26-2015] for the state has a compelling state interest to force you to go along, except you can teach and advocate. That's it.

Jim: I mean, again, I think the question for many of us is what's the practical impact on a day-to-day basis as this unfolds? You're both teaching and Al, you're the president of Southern Baptist Seminary, talk about the education environment. I know there's been some question that the next target will be tax-deductibility for schools or schools that receive federal money in the form of student grants, that if you don't comply, you don't hire same-sex oriented people, then you're in violation of receiving those grants. Talk about what the near-term future could be for religious liberties.

Al: Yeah, we are able to do three things in particular, beyond just what gets taught in the classroom. And that is, that we operate on the basis of Christian conviction in the hiring of faculty and staff, in the admission of students and in the discipline of those students and also in housing, when we have housing on the campus.

So, the Chief Justice of the United States asked a key question when he turned to the Solicitor General of the United States in the oral arguments for today's [Friday, 6/29/15] case and he said, "Would a religious school that offers marital housing have to violate its convictions if same-sex marriage became legal?" The solicitor general said it will be an issue. So, Jim, we've been warned.

When same-sex marriage became the law in the State of Massachusetts, one of the first organizations that had to go out of business was Catholic Charities, one of the most respected and long-serving adoption agencies in that state. They were told, if you are gonna discriminate on the basis of your Catholic understanding, you gotta go out of business and they did and they will not be the last.

Jim: And I mean, it's shocking that, that would be the cost. I remember speaking to an editorial board of a national newspaper and I made that very point, Al. I said, "You know, I think they lost in Massachusetts 30 percent of their foster adoption capacity when Catholic Charities shut down." It was a large number and the reporter's response to me was, "Well, there's gonna be some casualties in this bigger war."

I couldn't believe that. I mean, that children would suffer like that, that the cause of the same-sex community would be so much more important than a child finding a home. That--

Al: That's right.

Jim: --that was stunning to me. Al, the spiritual application of this, how do we begin as Christians, to live in a structure of government that doesn't feel like what the original intent was all about? I mean, they fled Europe. They fled Britain in order to get out from under religious persecution and it looks like we've done the full circle. We're right back there where religious people are persecuted for their beliefs. On the downside of power, where we have enjoyed a good deal of power in this country and a Judeo-Christian value system that has built arguably, one of the most successful nations the world's ever seen, how do we begin to think about the environment that we're in and how do we begin to respond, perhaps in a different way if necessary? And what will--

Al: Yeah.

Jim: --that way be?

Al: Well, you raise several very important issues there and I appreciate the spirit in which you did that, Jim. You know, you know, I think we need to be very careful about using the word "persecution" out of its context. There is a deliberate effort to marginalize Christians, to silence Christians. There are immediate threats to religious liberty.

But the Christian church has faced persecution on a far larger scale and a far greater intensity. We may face that and we better be spiritually ready for that. There are danger signs on the horizon, but the Christian church has faced this before and that's why I ended my immediately response to the Supreme Court's decision by saying, Jesus Christ, the same yesterday, today and forever.

The Christian church has faced greater dangers than this, but not our generation of Christians and that's kind of the second part of what you raised. There is such grief and tragedy in seeing the death of the American experiment and ordered liberty and constitutional government, as Justice Scalia warned in the decision. There's just tremendous grief in that.

And there's every reason for Christians to use every legal means available to us and every means of democratic change and democratic persuasion that's given to us to speak to the culture around us. But we're gonna have to pay a price. I mean, we are going to be in the position of being vilified by many of our neighbors, who simply can't believe that anyone would stand against this new moral regime and would have any reason for doing so.

So, we're gonna have to learn how to speak the truth in love in a whole new way; it was easier to do that when we were in a more privileged position in society, but now we're gonna have to do that under a great deal of pressure and we're gonna have to learn some new Gospel skills here, Jim and that's true for all of us and we're gonna have to stay faithful and we're gonna have to learn these new skills together.

Jim: Well, I so appreciate that attitude, that concept that maybe we're a bit spoiled and perhaps we're always asking the question, "Lord, what direction are You going and what role do we have to play in it?" And it seems to me that the Lord is taking His hand of blessing off of this country so that His people, I think, will get more serious.

And to that point, to both of you let me ask this. I mean, one of the fair criticism is, Christians--not all, but some who wear the label "Christian"--have been pretty harsh toward homosexuality and have demonstrated what some could see as hateful expressions and we need to be mindful of that and it shows the importance of God's grace and the way that we need to express that. Be solid on truth, but also remember that we're all sinners saved by grace, right?

Helen: Absolutely and people certainly do need to be reminded of that. Today you know, we're overwhelmed by judicial irrationality. We're overwhelmed by the feeling that the Constitution is whatever five people say it is and that really is quite stunning.

It doesn't change how we relate to people in our ordinary lives, which has to be with the Christian imperative of love obviously. That has been discussed so often in connection with well, because there was mistreatment, it was only natural that the LGBT groups were gonna turn around and demand marriage.

I have to say, it's not closely related. They were going to demand equal treatment, to demand recognition of their dignity, but to take the only family institution where children were part and parcel of the definition and strip it out, is drastically unkind and this compassion, this understanding has got to work on both sides. And the idea that, you know, we paid the price for being unkind in the past by turning around and hurting children doesn't work with me. There is simply no family law left in the United States now that puts children at the front end, zero and I guess as a family law professor, as a parent, as a Catholic, I'm just so overwhelmed by that. And no matter what was done in the past, the answer was to treat everybody with dignity, not to strip children of their rights to a mom and a dad.

Jim: Yeah, again, that is exactly right on. When you look at the cases of public accommodation, I'm thinking of the florist up in Washington. She was selling flowers to the gay couple. It wasn't that. It wasn't that she was turning away their business; it was until they asked her to perform or to work on the ceremony and that's where she said, "Well, I have, you know, a religious conviction. I don't feel I can do that." And that's when the state attorney's general in Washington went after her. Can we anticipate more of that occurring whenever you express your religious convictions in any kind of public forum, that you are potentially opening yourself up to a lawsuit?

Helen: I can say that what we've seen thus far is whether they are human rights commissions or the media or a court, do not seem receptive to the actual facts on the ground, which is people are not discriminating other people. They're refusing because of their conscience and religion to facilitate a same-sex ceremony that calls itself "marriage," a wedding ceremony.

And by refusing to involve themselves in that, they are however being charged with violating antidiscrimination laws against individual persons based on their sexual orientation. It's not hard to draw that line. It's very easy, but courts and commissions and the media have refused to draw that line.

Al: You know, Jim, there was a spokesperson who in the immediate aftermath of the decision, celebrating it, said, "Well, now all Americans are going to have to celebrate with us."

Jim: Right.

Al: You know, that kind of coerced celebration is exactly what we're talking about here. And that's what Paul talks about at the end of Romans, chapter 1, when he talks about the sinfulness of humanity, he said that we are responsible not only when we do those things that are wrong, but when we give what he says "hearty approval," when we celebrate the things we know to be wrong.

And whether you're a florist in the Northwest or a photographer in the Southwest or a fire chief in Atlanta, if you won't celebrate, then they're gonna coerce that celebration and it's amazing that as soon as the Supreme Court ruled on Friday, there were those who jumped on it and said, "Now all America is going to be forced, coerced by the power of law and the influence of the Supreme Court, to celebrate with us." And if you refuse to celebrate, we're gonna find ourselves on the outside of society here.

Jim: Well, in fact, during an interview on Friday, a journalist asked me, "When will the church pivot to kinda catch up with these decisions."

Al: Yeah.

Jim: I was shocked. I said, "Well, the church on these core issues of life and marriage, we don't pivot depending upon the whims of the culture. That's 2,000 years of history where we have stood very firm." And I think the person was literally shocked that, you know, we're not ready to jump on the bandwagon. It's crazy.

Al: Yeah.

Helen: You know, it's been very recent, too, in the last couple weeks, I don't know, Pope Francis has diverted a number of his audiences to the topic of men and women and he made the statement. He says, "You know, I think that the loss of the ability to see God is tied to our loss of understanding of the unique importance of the alliance between a man and a woman. And if you can't see one, it's harder for you to see the other."

And the idea that somehow that part of Genesis that says, "In the image of God, He made them; man and woman He made them," is just gonna be set aside. I add one thing. I think today's [Friday, 6/26/15] ruling, the language is so breathtaking. I mean, Justice Kennedy says, "We used to think one thing, but now it's manifest to everybody that this other is true." I think it's so sweeping, I think the dissent's language is so foreboding that the reaction to it may transcend people's reaction to marriage. They may actually feel the Court is scary out of bounds and I think it could easily find itself part and parcel of politics. (Laughing)

Al: No, the scary thing to me is, that I'm afraid that most Americans actually pay very little attention to how the Court operates or should operate and I think a frightening percentage of Americans probably think the Court should just decide what they think is right. And of course, this just is absolutely incompatible with democracy.

Jim, when you start talking about the church pivoting, you know, I simply have to point out, that this is going to require us just to embrace in a whole new way publicly the radical nature of Christianity. We do believe that God spoke and gave us His definition of marriage and He gave us all of Scripture and we're obligated to obey it and it's not changing.

And so, you know, the very question that, that reporter asked you, "When's the church gonna pivot?" every other institution on the planet evidently could pivot, but not the church of the Lord Jesus Christ.

Jim: Well, it's exactly right, Al and let me just build on that and we only have a couple of minutes, but as we move forward, I'd like to hear closing comments from each of you about how we assimilate this information, but then how we act out in our neighborhoods, in our communities. How do we talk to our neighbors about this? What do we do to demonstrate God's design for family, God's design for marriage? What do we have to do as individuals to reaffirm the biblical definition of marriage?

Helen: I think most people are not acutely aware that in the Christian tradition, we really do teach, a la Saint Paul to the Ephesians, that we are responsible as married people for giving a glimpse of an amazing love through our relations with our spouses and our children.

And you know, to me, first order of business is demonstrating that, that we are trying to make that what it has to be. I mean, that's a stunning call. That is really radical, that we have to offer a glimpse through that and I think we need to recatechize our people on that message first and foremost.

Jim: No, I appreciate that. In fact, we talked about that here at Focus on the Family, that our marriages are more than just our unions. They are a witness before the world in much greater ways now that even last week and we've gotta recommit ourselves to being that kind of salt and light, that witness so that people can see a difference. Al, how about for you; what do you see us moving toward in the future?

Al: Well, I think we have to acknowledge just how big an issue this is and frankly, the decision, the way it came down, the language of it, even more damaging than perhaps we might have expected. But the one institution on the planet that can't be thrown off its foundation is the church of the Lord Jesus Christ. I mean, after all, Christ said, "The gates of hell shall not prevail."

And so, we're gonna have to learn how to speak the truth in love, how to show compassion and to know that compassion and truth can't be separated. We're going to have to learn how to talk to our neighbors in ways that are respectful, but at the same time, absolutely truthful.

And we're gonna have to start with our own individual lives and our own affirmations. We can't just get biblical when it comes to opposing so-called same-sex marriage. We've got to be committed to all that Scripture requires of us and in our marriages, just as Helen beautifully said, we have got to demonstrate the glory of God and even the Gospel of Christ in our own marriages. They have to be biblically ordered and to give witness before the world.

And in our churches and families, we're gonna have to reteach the faith and we're gonna have to do so with a new intensity, because not only are we gonna be teaching our children and our fellow Christians things they otherwise wouldn't know, we're going to be teaching them things that are otherwise flatly contradicted and denied by the culture around us. And the one thing we need to remember is again, we're up to this, not because of who we are, but because of who Christ is. It isn't our church; it's His church.

Jim: Well, that is so well-said and that's a good place to put the exclamation point, that this does not put Jesus back in the grave. He is alive and we believe it--

Al: Amen.

Jim: --and we're gonna move forward in that regard. Thank you, Helen Alvaré, Al Mohler for being with us on "Focus on the Family" today.

Helen: Thank you so much.

Al: Jim, I join with you today and with Helen in this conversation and in prayer for our nation.

Closing:

John: Well, we've touched on so much in the past 25 minutes or so with our guests and yet, there's so much more to learn and to apply in our lives. We've got a lot of information. We've got talking points for parents and a lot of resources to help you understand how this impacts you today and in the coming days and it's all found at www.focusonthefamily.com/radio.

Jim: And John, I'm reminded of what we've done in Egypt, because I think there's a corollary here. It's very different and much more severe with what's happened to our brothers and sisters in the Middle East, where they literally are being killed for their faith in Christ and it's a story I've shared, but to have these people, the 21 martyred victims, who were beheaded and I was talking to our office there in Cairo, Sami Yacoub and he said, "You know, Jim, these people are weeping, these families." And I said, "Of course, Sami, they're weeping." And he said, "No, they're weeping for joy that the Lord would choose their families to suffer for Christ."

And I say that only as a context for us, as we look at these deep and divisive issues in the United States, talking about our rights and those things that we've enjoyed for so long. I think we need to be humble about where we're at today, to be hopeful about where we're at today. God is still in control, not five Supreme Court Justices and there will come a time when they're accountable, both by history and by the Almighty and you know, we should pray for them.

But as we move forward in the culture, I think we need to represent our faith well, to be joyful, to remember that the Lord said to be of good cheer, that the world hated Him first and that they're gonna hate us, too and to be okay with that. We need to be able to manage this well and I hope that we all will. Demonstrate your faith in Christ by loving your spouse and loving your own family.

John: Well, we're here to help you do that and we've made mention of it along the way. Focus on the Family has counselors. We've got resources like books and events and curriculum for small-group use. You'll find all of that at www.focusonthefamily.com/radio. And you can also call us if you'd like. Our number is 800, the letter A and the word FAMILY.

Our program was provided by Focus on the Family and on behalf of Jim Daly and the entire team, thanks for listening. I'm John Fuller, inviting you back next time, when we'll once again, help your family thrive.

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Guest

Al Mohler

View Bio

Albert Mohler is the president of The Southern Baptist Theological Seminary. He is also a professor of Christian theology, an ordained minister, and the host of Thinking in Public, a radio forum for theological and cultural conversation. Mohler holds a Master of Divinity degree and a Doctor of Philosophy from Southern Seminary.

Guest

Helen Alvare

View Bio

Helen Alvare is an Associate Professor of Law at George Mason University and authoritative voice regarding law's impact on religion and the family. Her written works include research papers, law reviews, symposiums and numerous periodical contributions. Helen is also a regular media consultant on behalf of the U.S. Council of Bishops.