Saturday, September 5, 2015

SAME-SEX MARRIAGE: Some notes from a Progressive (Evangelical) Christian Viewpoint

Note from Rowland: This article has been published in Gesher, the official journal of the Council of Christians and Jews (Victoria), Vol. 4 No. 5, November 2014.

Update: to be formatted. For another version see

As I write, today (14/7/2014) the story of a gay man who’s just come out of his painful closet. Australia’s most successful Olympian Ian Thorpe is everywhere in the public media. (ABC NewsMail’s headline: “Ian Thorpe says he concealed sexuality out of fear”. “The Melbourne Age’s editorial: The rate of self-harm and suicide for homosexual youth ranks well above their peers and is a telling sign of an urgent problem that must be confronted”). [1] Ian is now one of the three highest-profile gay men in Australia with Federal Greens politician Dr. Bob Brown and the Honourable Michael Kirby (former Justice of the High Court). [2]
And in the media, just this month, are many stories of married Lesbian and Gay couples who have returned from celebrating their nuptials in New Zealand or in a British consulate, or elsewhere, who now face (temporarily, we hope) a complicated legal status in a country which hasn’t yet caught up with the the UK, NZ, Canada and other similar Western progressive nations on this issue.
Same-sex marriage (SSM) or “gay marriage” is the legally recognized union of “ two people with the same biological sex and/or gender/identity”.Advocates of SSM often prefer the term “Marriage Equality”.
As of 28 June 2014, 16 countries (Argentina, Belgium, Brazil, Canada, Denmark, France, Iceland, Netherlands, New Zealand, Norway, Portugal, Spain, South Africa, Sweden, the UK, Uruguay), and several states/sub-national jurisdictions in the US and in Mexico allow same-sex couples to marry. Coming up: Scotland (late 2014?), and the European Court of Human Rights (as soon as enough countries fall into line). [3] Australia - The process will almost certainly get under way when the conservative Coalition parties allow a conscience vote.
Around the world there is rising support – a clear majority now in all Western nations, across every age group, political ideology, gender, race and many religious denominations – for legally recognizing same-sex marriage. Support for SSM is now (15/7/2014) higher in Australia than in any other country, including NZ and the UK, when they passed marriage equality laws. [4]
The recognition of SSM is a political, social, human rights, religious and civil rights issue: as were the paradigm shifts associated with the slavery, race, [5], divorce, and gender equality. Gays and lesbians are not going away: they pay taxes too, so they ask “Why should we settle for a lesser status (eg. equivalence to “de facto”or civil unions) rather than be allowed full marriage, with all the relevant social and legal protections?”
The doyen of English-speaking public theologians, Martin Marty, endorses these judgments: “The gay rights movement has achieved more swiftly than any other individual rights movement in history, not merely the impossible but the unthinkable.”[6] And: “In the glacial scheme of social change, attitudes about gay marriage are evolving at whitewater speed.” [7] US Supreme Court decisions may slow that speed, but it seems certain that in the not too distant future, we will look back on today’s opposition [on this subject] the way we now view opposition to interracial marriage – as a blatant violation of basic constitutional commitments to equality and human dignity. [8]  Indeed, issues connected with [SSM are] the most church-dividing since the Council of Nicea or the Protestant Reformation. [9]
Conservative politicians tend to argue that SSM is antithetical to civilization as we have understood it: marriage is between a man and a woman. Christian and Jewish conservatives include an appeal to tradition and/or biblical authority. The fall-back position for many Catholics and some Protestants: “Gay marriage is against Natural Law, so it’s simply wrong.” But Marty opines: “[Natural law] teachings, when invoked, tend to match what people have already decided, on other grounds, is right or wrong.”[10]
Here are three important professional bodies’ contributions to the discussion:
The UK Royal College of Psychiatrists (April 2014): “Homosexuality is not a psychiatric disorder”. The College holds the view that lesbian, gay and bisexual people are and should be regarded as valued members of society, who have exactly similar rights and responsibilities as all other citizens. This includes equal access to healthcare, the rights and responsibilities involved in a civil partnership/marriage, the rights and responsibilities involved in procreating and bringing up children, freedom to practise a religion as a lay person or religious leader, freedom from harassment or discrimination in any sphere and a right to protection from therapies that are potentially damaging, particularly those that purport to change sexual orientation. [11]
The American Anthropological Association (2005) has stated that the results of more than a century of research on households, kinship relationships, and families, across cultures and through time, provide no support whatsoever for the view that either civilization or viable social orders depend upon marriage as an exclusively heterosexual institution. [12]
And from the American Academy of Pediatrics (2006): There is ample evidence to show that children raised by same-gender parents fare as well as those raised by heterosexual parents. More than 25 years of research have documented that there is no relationship between parents’ sexual orientation and any measure of a child’s emotional, psychosocial, and behavioral adjustment. These data have demonstrated no risk to children as a result of growing up in a family with one or more gay parents. Conscientious and nurturing adults, whether they are men or women, heterosexual or homosexual, can be excellent parents. The rights, benefits, and protections of civil marriage can further strengthen these families. [13]
Pronouncements such as these have dramatically influenced the thinking of anti-SSM advocates. As the theologically liberal Christian Century editorialized (to coincide with the US Supreme Court’s initial consideration as to whether gays have a constitutional right to marry. (March 2013)
It’s remarkable not only how much public opinion has recently shifted toward endorsing gay marriage, but how thin are the legal arguments now arrayed against it. Neither the brief offered by ProtectMarriage on behalf of California’s Proposition 8 nor the one by House Republicans on behalf of the Defense of Marriage Act attempts to argue that same-sex couples are a threat to society or children. The House brief simply asserts that it is “rational” to believe that children fare better when raised by biological parents of both sexes without marshaling much evidence for this view.
Both briefs introduce as part of their case against same-sex marriage a curious new argument about the “social risks” presented not by homosexual couples but by heterosexual couples. The point is that reckless sexual relations between unmarried heterosexuals can produce unintended offspring, which are a potential burden to society, whereas reckless sex between homosexual couples doesn’t pose this threat. Therefore, the briefs say, society has reason to offer heterosexual couples, not gay and lesbian couples, the distinct benefits of marriage.
One immediate objection to this inverted argument is obvious: Why should gays and lesbians be denied the benefits of marriage because they don’t present the same social risks that heterosexuals do? In any case, denying gay couples the right to marry would not do anything to steer reckless sexually active heterosexuals toward the responsibilities of marriage.
Is procreation a defining element in defining a legitimate marriage?
Inside and outside the church, marriage has long been defined as the lifelong commitment of two people to sharing all things in life: children, property, money, joys, sorrows, poverty, prosperity. What Christians have added to this general understanding is not an insistence on procreation but rather an insistence that marriage mirrors in some way God’s fidelity to creation and to God’s people. Because marriage reflects God’s faithfulness, Christians believe that living out an unconditional lifelong commitment to another person offers a way of living more deeply into God’s purposes for one’s own life. Marriage offers a path leading one out of selfish desires into greater concern for the welfare of others. That distinctively Christian understanding of marriage would not be damaged by a legal endorsement of same-sex marriage. It could even be enhanced. [14]
A couple of interesting published comments followed that statement:
Luther and Calvin both challenged the theological norm of their day that marriage was first, for the procreation of children. Rather, they posited, God had provided a way out of human loneliness via the call to lifelong committed relationship.
(Jesus’ and Paul’s recorded words never connected the institution of marriage with procreation).
[Re Church and State]: In Europe, marriage is first a matter of state law. If a couple desires to have their marriage blessed by the religious body of their choice, they may do so. With the blurring of the separation of church and state comes the confusion between “rights” and “rites”. Let the state define people’s legal right to wed, but let religious bodies define and exercise the rite of marriage that reflects their faith, tradition and practice.
Conservative vs Progressive Hermeneutics
Conservative “People of the Book” (Jews, Christians, Muslims) tend to offer early in their rationale on this issue, quotes from their holy books, interpreted by authoritative teachers. For such traditionalists, male-female union is an icon of creation: the two genders are complementary. And same-sex liaisons get a mostly “negative press” in all three religions’ traditions.
But what to do with a law like this one? “If a man lies with a male as with a woman, both of them have committed an abomination.” [Lev. 20:13]. Martin Marty again: “Most quoters stop there, but it goes on: “They shall be put to death”. Seriously, if the first half of that verse is divinely-inspired and authoritative, who are we moderns to decide that the second half is not, and that it can be shrugged off? The same goes for other scriptural death penalty cases. As every smart New Atheist reminds us, Leviticus and Deuteronomy command capital punishment in numerous clear and specified instances: when children curse their parents, when anyone blasphemes, and even when a son is persistently disobedient. “He should be put to death: that’s God’s law. No Jews are Jews because God told their ancestors to commit omnicide against the Amalekites. No Christians, whose book also includes Leviticus and Deuteronomy, use it to punish men who have intercourse with a menstruating wife. No Christians in our cultures use the Bible, which never de-legitimizes slavery, to legitimize slavery.” [15]
And surely sins listed in Romans 1:26, 1 Corinthians 6:9 etc. do not refer to life-long loving unions between same sex couples.
Progressive Christians tend to reinforce their worldview with assertions like these:
  1. It’s not smart to conceptualize too many realities as dualistic binary oppositions: we live in a world of ambiguity.
  1. The Sodom and Gomorrah story might still be important for fundamentalists, but doesn’t feature so much these days in scholarly discussions. It was a story about gang rape, not loving unions.
  1. Jesus (eg. Sabbath laws) and Paul have encouraged us to view a legalistic interpretation of the Mosaic law as antithetical to grace. Galatians states the underlying principle, and it’s worth noticing Paul’s conjunctions. “There is neither Jew,nor Greek, there is neither slave,nor free, there is no longer ‘male’and ‘female': for you are all one in Christ Jesus” (Gal. 3:28). [16]
Progressives tend to be guided by a higher commitment to “grace” rather than law/dogma, as they believe Jesus was with his ethic of inclusion. Thus many erstwhile opponents of SSM have radically changed their mind when a loved-one “came out” as gay. (What’s new, many progressive apologists ask: the same thing happened with the inter-racial and divorce paradigms).
So progressive Christian theology is more dynamic than static. “The Lord has yet more light and truth to break forth from his holy Word.” The apostle Peter learned this the hard way and in the encounter with the gentile Cornelius changed his mind on who was / was not accepted by God. The Adam and Eve story is especially relevant for singles: a man with a man is a lot closer to a man with a woman than a man who chooses no partner at all. Gays and lesbians surely don’t have to be sentenced to lives of terrible loneliness.
An important question: how did humans learn to discriminate against certain individuals/groups? Rene Girard has been most helpful here with his notion of mimetic rivalry: humans learn bigotry from parents/significant others. Society is believed to be at risk from “alien others”, so they must be opposed/humiliated/punished/exiled, even killed. In other words, these alien individuals or outgroups become “scapegoats” in a society’s quest for purity, salvation, orthodoxy, whatever.
But the supreme Judeo-Christian ethic is a commitment to Love for God and neighbor. And re our conjugal partner, the marriage vows affirm: “For better for worse, for richer for poorer, in sickness and in health, till death do us part.”
John Maynard Keynes used this provocation to effect: “When the facts change, I change my mind. And you, sir?” History is littered with conservative ideas which collided with the findings of science and stoked the fear of cognitive dissonance. I for one would not like to be judged as being on the wrong side of history this time around.
So among Christians - at least in the West – there’s been a significant migration from conservative to progressive thinking on this broad issue. [17] (I leave it to more-knowledgeable others to generalize about Jewish and Islamic trends).
A significant factor: Conservative Evangelical Christians were the drivers of world-wide mission in the last few centuries, but were slow to engage with some serious human-rights issues, in deference to the host governments where they ministered. But the times are a-changing: now they are partnering with Ecumenical/Liberal Christians, Catholics, Jews, secularists, and feminists on many fronts, reminding us of Alfred North Whitehead’s dictum: “Great ideas enter into reality with evil associates and with disgusting alliances. But the greatness remains, nerving the race in its slow ascent.” [18]
The Last Word: US Bishop Gene Robinson 
Gene Robinson is the world’s first openly gay bishop elected to the historic episcopate (2003). He married Mark Andrew - his partner for a total of 25 years – in 2008. They ended their union in May, 2014, about which he writes: “My belief in marriage is undiminished by the reality of divorcing someone I have loved for a very long time, and will continue to love even as we separate. Love can endure, even if marriage cannot.”[19]
The thesis in his book God Believes in Love: Straight Talk about Gay Marriage:
'Marriage is a sacrament and nothing in Scripture or orthodox theology precludes our opening the institution to same-gender couples. The legal marriage of two same-gender people - like the rather recent opening of legal marriage to interracial couples - retains the traditional meaning of marriage while expanding the number of people whom it may benefit.'
Here’s a summary of Gene’s ten theses:
  1. It’s time for gays to be treated with the same dignity as heterosexuals;
  2. Jesus said “Do to others what you would have them do to you”;
  3. “Civil Unions” don’t affirm a partner’s full rights;
  4. Nowhere in Scripture is there a wholesale condemnation of the loving relationships of lesbian, gay, bisexual and transgender people;
  5. Jesus was champion of the poor, the oppressed, and the marginalized;
  6. Marriage is a matter for the state, and historically is quite fluid: until relatively             recently interracial marriage (miscegenation) was forbidden in America, Nazi    Germany, South Africa and elsewhere;
  7. There are plenty of reasons why marriages are stressful and end in divorce. None of them relate to the idea of gay marriage;
  8. Religious opposition to same-gender marriage is an example of the violation of the separation of church and state: the Church is trying to meddle in the rightful business      of the State
  9. Parenting? No research supports the widely held conviction that the gender of parents matters for child well-being
  10. It’s not about homophobia (a word I don’t use; it’s a conversation-stopper) but “The opportunity to love one person and to have that love sanctioned and supported by the culture in which we live is a right denied gay and lesbian people for countless centuries. It’s time to open that opportunity to all of us. Because in the end, God believes in love.” [20]
Rowland Croucher
July 2014.
Rowland Croucher, an Australian Baptist clergyman (now retired from parish ministry), is a writer, counsellor, and director of John Mark Ministries, assisting Christian pastors, leaders, and their spouses. He is also national chaplain of Freedom2B, a ministry for LGBTIQ people with a Christian background.
[1] The Age 15/7/2014.
[2] ;
[4] Lisa Cox: “Support growing for same-sex marriage”, The Age, 15/7/2014, p.8.
[5] But it is interesting that black churches in the US are divided over SSM: see Maza, Carlos. “Three Things The Media Should Know About Rev. William Owens And His Coalition Of African-American Pastors.” Equality Matters (blog), August 8, 2012. Accessed July 13, 2013 - ;
“Black Pastors Condemn Supreme Court For Ruling on Gay Marriage.”Atlanta Daily World, June 26, 2013. Accessed July 13 2013
The Black Church.-
Accessed July 13, 2013.
[6] David Cole may have been the first to describe the legalizing of same-sex marriage with this observation, “Getting Nearer and Nearer”, New York Review of Books, January 10, 2013, reviewing Michael J. Klarman’s From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (OUP).
[7] Citing Ellen Goodman Sightings 1/14/2013, “Gay Marriage Tidewater”
[8] Ibid.
[9] *Sightings* 3/1/10, “Biblical Literalism”
[10] Marty, Sightings, 1/14/2013
[12] American Anthropological Association (2005) “Statement on Marriage and the Family from the American Anthropological Association”, Retrieved 10 November 2010
[13] Pawelski, J. G.; Perrin, E. C.; Foy, J. M.; Allen, C. E.; Crawford, J. E.; Del Monte, M.; Kaufman, M.; Klein, J. D.; Smith, K.; Springer, S.; Tanner, J. L.; Vickers, D. L. (2006). “The Effects of Marriage, Civil Union, and Domestic Partnership Laws on the Health and Well-being of Children”.Pediatrics18 (1): 349:364. Cited here: sex_marriage#cite_note-aaa-24
[14] FROM THE EDITORS, Christian Century, “Blessing Gay Marriage” March 04, 2013
[15] *Sightings* 3/1/10, “Biblical Literalism”by Martin E. Marty
[16 More from a conservative Christian viewpoint: Michael Bird, Gordon Preece, et. al. Sexegesis: An Evangelical Response to Five Uneasy Pieces (Anglican Press, Australia, 2002).- Shows that the traditional reading of Scripture, as against homosexual practice but for homosexual people, still makes sense of the Bible text. This is contrary to the more liberal revisionist reading of Scripture in Five Uneasy Pieces []. Robert Gagnon’s ”The Bible and Homosexual Practice: Texts and Hermeneutics (2002)” is still one of the most thorough volumes written by an outstanding scholar who is both theologically conservative on this broad issue, but is also a non-inerrantist: his work is commended by James Barr and many other highly acclaimed conservative Christian theologians many of whom are also polemicists in their opposition to Fundamentalism. [See Amazon’s impressive list of commendations]. See also Rev. Dr. Mark Durie’s views, here:
[17] My first book: Recent Trends Among Evangelicals, (1986),
[18] Martin E. Marty: ‘Human Rights Bedfellows’, Sightings, October 4, 2004; Allen D. Hertzke. Rowman & Littlefield: Freeing God’s Children: The Unlikely Alliance for Global Human Rights; Johan D. Van Der Vyver and John Witte, Jr. Martinus Nijhoff eds., Religious Human Rights in Global Perspectives: Legal Perspectives (Vol. I), Religious Perspectives (Vol. II)
[20] Bishop Gene Robinson, God Believes in Love: Straight Talk about Gay Marriage, 2012. For a longer review/summary visit
Dr. Stuart Edser:
Thank you Rowland for the opportunity to say a few things about us gay people having the right to marry. I think that by now, all the arguments have been put. I have put them myself in a similar essay to your own on my own blog (Gays Getting Married - The Audacity ) – As I have read through and argued against the propositions that would ban gay marriage, I have gradually come to a position that sees these arguments as being essentially the last leg kicks of a dying insect. By that I mean, I think the arguments are weak, with often inaccurate claims, and arguing from either a religious model – that most Australians do not adhere to, or from a historical model – that when scrutinised in any kind of detail does not hold up under its own logic. Most Australians, even the ones who are not supportive of gay marriage, are not in the trenches arguing against it. I think we give too much weight to the few vociferous polemicists who are out there day or night arguing that gay marriage will undermine both marriage itself and society in general. And sadly, from my experience, they tend to do it in a very insensitive and nasty way. I think the more rusted on of these folk are dinosaurs and will ultimately be left behind.
Essentially, the two most common arguments against gay marriage that I hear from them are:
1.Marriage is for children
2.Gay marriage will undermine / destroy marriage in general.
Philip Ruddock on Q&A recently went straight to the first of these when asked about gay marriage. But seriously, if you are going to ban marriage between two loving and committed adults who cannot biologically produce children who happen to be gay, then to be consistent, we would need to ban marriage between straight couples who also don’t have children:
Couples who can’t
Couples who don’t want to have children
Couples who are older and who are perhaps rediscovering love.
I really would like to hear just one person tell me, if marriage is fundamentally about procreation, why it is okay for these couples to marry but equally committed and loving gay couples can’t. What actually IS the logic? What IS the rationale? I suspect I know the sad answer.
The second response above is the so-called undermining of marriage and society. Presumably such undermining would have some kind of recognisable shape and would be quantifiable by social researchers. If such a premise were to be true, I would want to see higher rates of heterosexual marriage failing, greater divorce, increased problem marriages and greater eschewal of marriage for other relationship types, eg., de facto rates. If this premise were true, I would want to see the evidence that in countries where gay marriage exists, marriage is either falling apart at the seams or has begun the long decline into nuptial chaos. In the words of the movie, “show me the money”!
Regarding society, where do you even start? Which factors would you investigate for proof that society had been weakened in some way? And for both these quantitiations, any social researcher worth their salt (and their reputation) would have to provide evidence that the putative deleterious outcomes in the social fabric were directly and inextricably linked AND caused by gay people marrying. I am not seeing it. The countries you listed in your essay have had gay marriage for varying lengths of time. The Netherlands has actually had it since 2001, that’s thirteen years; plenty of time for society to crumble and for marriage to be weakened. But it is not there. It is simply not there. There is no wholesale abandonment of social mores and values and there is no unfettered destruction of marriage. It’s all been a big fat scare.
So what drives both fallacies? I think it is the problem of gay sexuality itself. In my experience, it is the unspoken elephant in the room (although some groups go right for it) whenever opponents discuss marriage equality. They will put up all the arguments they can think of without mentioning gay sexuality but when you strip it all away, it is just prejudice against gay people and the non-acceptance that gay people can be anything other than social miscreants and sinful, rejecters of God. Never mind the science; so they don’t.
Intelligent Christians are able to look at this question in the light of scholarship, both in the sciences and in Biblical studies. They understand that science has been able to show categorically that a gay sexuality is neither a psychopathology nor a pre-cursor to future mental illness. They accept that a gay sexuality is a life-long orientation that emerges typically around the time of puberty and that it is neither wilfully chosen nor wilfully changed. They understand that the scriptures are a complex compendium of texts that were written in the ancient world and with a pre-modern world and religious view. They know that interpretation of scripture must be examined carefully in the light of the times, the author, the intended audience, the geo-political culture of the region, the context of the texts, the linguistic properties of the ancient language and the fact that we have heavily redacted texts today and no original manuscripts. They can spot an agenda in the Bible when they see one. They also have a heart of compassion that would not see gay people “sentenced” to a lifetime of loneliness and probably depression to match a worldview that that the rest of the world has sensibly abandoned. They understand that an authentic spirituality is just as much about doubt as it is about faith, about uncertainty as about certainty. They know that their faith is the evidence of things not seen even in the face of that doubt. And they understand that we are all on that journey of life from cradle to grave; gay and straight.
I think the time has come for gay marriage in Australia. I personally want it for myself and my partner of fourteen years. We would already have been married years ago had we been allowed to and my father could have attended the final wedding of his four sons.
Alas, that is not to be. Australia is certainly ready for this change. Gay marriage is pro-society, pro-marriage, pro-family, pro-health and pro-love. It is time that opponents, now in a sizeable minority, got out of the way and let this happen.
Dr Stuart Edser PhD. MAPS.MASCH.
Counselling Psychologist and author, Being Gay Being Christian, (2012, Exisle).
In 2014, Marriage and Contraception Dominated US Religion News
Thursday | January 8 2015
two women brides
Image Credit: cunaplus / shutterstock
As expected, marriage and contraception dominated 2014's domestic religion news headlines. At this time last year, same-sex marriage was legal in fifteen states, plus the District of Columbia. Today, 70 percent of the US population lives in a state where marriage equality prevails because, on Tuesday, Florida became the 36th state to issue licenses to same-sex couples. Six state marriage bans have been overturned but are on hold pending appeal to the US Supreme Court.
The significance of this trend is found in the overwhelming uniformity of the federal justice system. Federal courts have denied same-sex couples the benefits of civil marriage in only two of 60 or so cases. This legal consensus suggests that it will be extremely unlikely that any state Defense of Marriage Act (DOMA), which defines marriage as the union between one man and one woman, will survive the US Constitution's Equal Protection Clause of the Fourteenth Amendment. This clause was created in 1868 to outlaw slavery and used in 1954 to dismantle racial segregation.
In 2015, the US Supreme Court will undoubtedly combine - for all states - the constitutional right to equal protection with the fundamental right to marriage. Will there be political backlash? In some parts of the country, certainly.
But for a supermajority of voters, same-sex marriage will be a nonissue. This will be true for five reasons.
First, gay rights activists have been extremely successful in taking a relationship-based approach to civil rights, meaning that they have maintained personal relationships with those who once denied them equal protections under the law.
Second, the religions have engaged in self-reform. Religious people who once restricted civil marriage to one-man-one-woman have come to accept, love, and become advocates for gay and lesbian couples in their families and communities. This is the patriotic hallmark of every rights movement: those with rights defending those without.
Third, the once fervent defenders of marriage were surprisingly silent when states began issuing licenses to same-sex couples - most notably in Utah. Those who disagree tacitly accepted the outcome and disarmed themselves.
Fourth, the majority has had a change of heart. Surveys show that more than one-third of the voters who once helped legalize marriage discrimination now deem it unreasonable.
Fifth, support for same-sex marriage has increased in every age bracket, not just in the younger generation.
These five trends demonstrate that a relationship-based approach to justice can lead, as it did in the case of same-sex-marriage, to a genuine change in the collective's conscience.
The vitriol once discharged on the subject of same-sex marriage has moved to a different arena where one group is now battling another: religiously organized corporations versus women.
Can owners of for-profit corporations use religious liberty claims to refuse their employees contraception coverage? Yes, the US Supreme Court ruled in June in the highly debated Hobby Lobby case. Unlike in the same-sex marriage cases, in the Hobby Lobby case, Justice Kennedy joined the conservative wing of the court to find that Hobby Lobby was exempt from the federal contraception mandate in the Affordable Care Act.
This majority held that the federal Religious Freedom Restoration Act (RFRA) protects persons - and, therefore, closely held corporations (in which less than five shareholders own the majority of stocks) from laws that substantially burden their owners' religious beliefs.
Justice Ginsburg joined with the other three progressives on the court; in her impassioned dissent, she argued that the majority opinion misconstrued Congress's intent. The RFRA, Ginsburg asserted, did not explicitly state that for-profit corporations could exercise religion, let alone permit owners to use their religious beliefs to claim exemptions from civil right laws that protect women from discrimination in employment.
In an interview with Katie Couric, Justice Ginsburg said, "I certainly respect the belief of the Hobby Lobby owners. On the other hand, they have no constitutional right to foist that belief on the hundreds and hundreds of women who work for them who don't share that belief."
Couric asked, "All three women justices [along with Justice Stephen Breyer] were in the minority with the Hobby Lobby decision. Do you believe the five male justices truly understood the ramifications of their decision?"
Ginsburg gently responded, "I would have to say, no. But justices continue to think and can change. So, I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow."
How? Ginsburg said, "I think daughters can change the perception of their fathers," seemingly encouraging the daughters of her male colleagues to share their opinions with their fathers as well as inviting daughters throughout the country to engage in intergenerational dialogue to co-create an equitable society.
Perhaps this relational approach, so important in making marriage equality a reality in 2014, will eliminate the blind spots in the contraception debates of 2015.
Walker, Nathan C. , Marriage and Contraception Will Dominate 2014's Religion Headlines. Sightings, January 9, 2013.
Cillizza, Chris. The Supreme Court confirms what we already knew: The fight over gay marriage is over. Washington Post, October 6, 2014.
Flores, Andrew. Support for same-sex marriage is increasing faster than ever before. Washington Post, March 14, 2014.
Same-Sex Marriage Fast Facts. CNN Library, December 20, 2014.
Burwell v. Hobby Lobby Stores.The Oyez Project at IIT Chicago-Kent College of Law. December 17, 2014.
Couric, Katie. “Exclusive: Ruth Bader Ginsburg on Hobby Lobby Dissent.” August 16, 2014.
NOTE: The IRS defines a 'closely held corporation' as a corporation that 'has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and is not a personal service corporation.',-Self-Employed,-Other-Business/Entities/Entities-5.
Image Credit: cunaplus / shutterstock.
To read previous issues of Sightings, visit:
Author, Nathan C. Walker, is a doctoral candidate in Law, Education, and Religion at Teachers College Columbia University and a former fellow at Harvard Divinity School. He is the coeditor of Whose God Rules? (Palgrave Macmillan) and of the forthcoming Oxford Handbook of Religion and Education in the United States (for which Martin E. Marty is writing the introduction).