The Supreme Court and Marriage: What Will Justice Kennedy Do?

My takeaway from Al Moehler’s review of the Supreme Court arguments is that it all hinges on Justice Kennedy.

This is a succinct analysis of the most important points in Tuesday’s oral arguments before the U.S. Supreme Court about gay “marriage.” It comes to us from Albert Moehler.

A brief excerpt:

Chief Justice of the United States John G Roberts Jr. address questions directly to another of the attorneys making the case for same-sex marriage. In this case, none other than the solicitor Gen. of the United States, Donald Verrilli speaking on behalf of the Obama administration. The Chief Justice speaking to Verrilli said,

“Counsel, I’d like to follow up in a line of questioning that Justice Scalia started. He said we have a concession from your friend [that would be been Bonauto] that clergy will not be required to perform same-sex marriage but there are going to be harder questions.”

The Chief Justice then asked,

“Would a religious school that has married housing be required to afford such housing to same-sex couples?”

That is exactly the kind of question we have pointed out is coming to every religious institution that understands marriage to be the union of a man and a woman and exclusively so. This is one of those religious liberty issues that simply cannot be avoided. The solicitor general responded to the Chief Justice saying,

“I guess what I’d… I’d like to make three points about that if I could.”

General Verrilli then said,

“…and I will, I’ll go right to the question you asked. The first one is of course this court’s ruling addresses what the states must do under the 14thamendment. And the second point is that when you get to a question like the one your honor asked, that is going to depend on how the states work out the balance between their civil rights laws, whether they decide that is going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under state law. And they could well… you know…. different states could strike different balances.”

I read the entire response of the solicitor general from the transcript so that you would hear every single word. The most important thing to note is that the solicitor Gen. of the United States, when asked directly if a religious institution that is opposed to same-sex marriage but nonetheless offers marital housing, if that institution will be required to extend that to same-sex couples, the solicitor general said that kind of question is going to be decided by the states based upon what kind of nondiscrimination law that they pass and what kind of accommodations are included in that law.

[See also, “Is the Supreme Court the God of Marriage.”]

Here is what it boils down to: Will Anthony Kennedy be willing to overturn millennia of cultural and legal precedent in order to justify something never done before?

Also, is he willing to thereby criminalize—and make legally odious—the sincere beliefs of tens of millions of Americans, who hold views very similar to those of George Washington and virtually all of the Founding generation?

I invite you to join me in praying a Proverbs 21 prayer over Anthony Kennedy—his heart is in the hand of the Lord—He will direct it, wherever He wills. I sincerely pray he is restrained from making a historically grave error.