HOME > NEWSROOM > ARTICLES > The Marriage Penalty

The Marriage Penalty

Penalty FlagDuring the arguments before the Supreme Court over same-sex marriage last week, it struck me that what may end up mattering most in the dispute in these two cases over gay unions was addressed the least. The real issue for people who hold a Christian worldview may well be the extreme lengths to which they could be penalized if the High Court gets it wrong. The audacity of the arguments to legitimize homosexual marriage, and the apparent receptivity of Justices Ginsberg, Sotomayor, Kagan and Breyer, is an example of the federalization of American culture – the ever-expanding grasp of secular federal power over issues that historically have belonged to the states and to their citizens. Implied in this debate also is the privatization of religious expression and rights of conscience – the drastic shrinking of that sphere within which people of faith are allowed to express and live out their beliefs. In fact, I would suggest a corollary here: as federalization increases, religious liberty decreases.

In the Proposition 8 case, lower court federal judges vetoed the popular ballot initiative of the people of California who overwhelmingly supported a traditional definition of marriage in their state. “Marriage,” like the concept of “family,” has, up to now, been defined by states as an institution whose definition and purpose were passed down through the religiously-rooted common law. Thirty states have amended their constitutions to reflect traditional marriage as the norm. Recently, though, federal judges in California have minted a supposed new right under the federal Constitution that voids the values and decisions of citizens on this issue. In the other case, one that involves DOMA – the Defense of Marriage Act – unelected federal judges struck down a law passed by elected members of Congress and signed by President Clinton that defined marriage traditionally for federal law purposes. This problematic federalization impulse is not just a function of the judiciary, but appears to occasionally spring from all three branches: while Obamacare was White House-engineered, it was also congressionally-authorized, and Supreme Court-affirmed. Further, the HHS mandate will, unless overturned, force religious employers to either violate their consciences by providing coverage for abortion-inducing drugs to employees and their families, or to pay exorbitant fines that could bankrupt them. 

In the same way, an extreme federalization approach by the Supreme Court in either or both of the Prop. 8 and DOMA cases could result in the further privatization of religious expression and free speech. Nine times during the oral argument in the DOMA case, the word “animus” appeared, a legal term that in common parlance indicates hatred or ill will; in the context of that case, government lawyers have argued that Congress was guilty of expressing “animus” against gays in even passing DOMA in the first place. Justice Elena Kagan was relentless in questioning the attorney supporting DOMA, as she seemed to express disapproval that some members of those House of Representatives opposed gay marriage as “immoral.” In the Prop. 8 case, the gay rights lawyers argued in their written brief that any condemnation of homosexuality “as immoral” constitutes official “discrimination.” One federal court has already censored a high school student who labeled homosexuality as “shameful,” and there are now signs that our Department of Justice and federal judges may enforce the new federal hate crimes law, which was lobbied effectively by gay activists, in ways that ignore rights of religious expression and belief. If the Supreme Court stumbles in deciding the marriage cases, we could see a Canadian-type legal culture emerge; in February, the Canadian Supreme Court affirmed the punishment of a man for publishing pamphlets that called for citizens to “keep homosexuality” “out of the public schools.” That Court, in upholding provisions of a hate speech law, did not seem bothered by the fact that it was censoring a pamphlet that also included a call for homosexuals to “be redeemed if they repent and ask Jesus Christ to come into their lives as Lord and Savior.” None of this should evoke fear. But it should increase our vigilance, as we heed the advice of the Apostle Paul in Ephesians, chapter 5 – to “awake, sleeper,” and to be careful to “walk, not as unwise, but as wise, making the most of your time, because the days are evil.”   

By Craig Parshall
Senior Vice President & General Counsel, National Religious Broadcasters
Director, John Milton Project for Free Speech     

Click here to read more articles written by Craig Parshall.

Published: April 4, 2013

Latest News

NRB Lauds Stand for Religious Freedom in Louisiana

Legislation intended to be a preventative shield for religious freedom in advance of the coming Supreme Court decision on marriage was shelved by a committee in the Louisiana legislature this week.

Commissioner Highlights Uncertainty on Collection of Fines

While the $1 million fine given to iHeartMedia for misusing Emergency Alert System (EAS) tones was the big news out of the FCC Enforcement Bureau this week, FCC Commissioner Michael O’Rielly had another interesting point to make about the agency’s penalties generally.

Senate Adopts Religious Freedom Measure in Trade Bill

The U.S. Senate this week adopted an amendment by U.S. Senator James Lankford (R-OK) that would require the Executive Branch to take religious freedom into consideration when negotiating trade agreements.

House Democrats Push for More On-Air Disclosure

A number of House Democrats have co-sponsored legislation that would require the FCC to increase the amount of information revealed on-air for political ads.

InterVarsity President Alec Hill to Step Down Following Cancer Diagnosis

InterVarsity Christian Fellowship President Alec Hill has been diagnosed with myelodysplasia, a cancer of the bone marrow, and will start treatment on June 10, according to an announcement last Friday.

NRB Milestone Award Honors 50+ Years of Christian Broadcasting: Is Your Organization Eligible?

NRB members who have achieved 50 years or more of continuous broadcast ministry are eligible to be considered for the NRB Milestone Award.

NRB Members: Do You Want to Be Highlighted in NRB Today?

Luis Palau Presents Good News Message to 30+ UN Ambassadors at United Nations HQ

International evangelist Luis Palau recently presented the “good news in the city” message to more than 30 ambassadors at the United Nations during the Ambassadors’ Spring Luncheon Forum. The gathering also included several members from the UN Security Council.

Hearings Highlight Internet Governance Concerns

This week two hearings in the U.S. House of Representatives focused on the future operation and governance of the Internet.

Senate Calls for Release of American Citizens in Iran

This week the U.S. Senate approved a resolution calling for the release of several Americans being held in Iran, among them Pastor Saeed Abedini, a resident of Idaho.

More News