Cultural Arbiters: DOMA, Prop 8, and the Limits of the Supreme Court

The recent Supreme Court decisions regarding the Defense of Marriage Act (DOMA) and California's Proposition 8 have made gay marriage the latest flash point in the perennial debate concerning the proper relationship between church and state. Pro-gay-marriage advocates have hailed the rulings as a triumph of enlightened modern morality over centuries of bigoted intolerance, while defenders of traditional marriage see the rulings as another product of a society unmoored from its religious roots.

Lost among these reactions, however, is any discussion of the legitimacy of the Court's decisions. This is not to suggest that the Court is an illegitimate institution. On the contrary; the Court's rulings are important precisely inasmuch as they represent the final interpretation of the law. Neither am I suggesting that the issue of defining marriage is one best left to the individual states, though many people have made this argument (including some Justices.) What I am suggesting is that the matter before the Court was in essence not one of law but of culture, an area in which the Court has neither jurisdiction nor any special authority, except in the popular mind.

Why do I say this? Consider the facts of the matter: first, the decision of the lower court in the Windsor case was never in dispute. At issue were the federal estate taxes owed on the inheritance Windsor received upon her partner's death. Winsdor argued that, since her same-sex marriage was recognized by the State of New York, she was entitled to the usual spousal exemption. The Obama Administration, believing the law to be unconstitutional, declined to defend it and the U.S. Second Court of Appeals found in Windsor's favor. Thus when the case came to the Supreme Court, both the plaintiff (Windsor) and the defendant (the United States government) were pushing for the same ruling. As Justice Scalia pointed out, the authority of the Supreme Court is only juridical, not advisory; meaning that it can only rule on a matter when there is a specific legal case before it, and the definition of a legal case is a situation in which the two sides are seeking adjudication of competing claims. No such claims were present in this case.

Absent any unsettled claims, then, what was the point of the Court hearing the case in the first place? The majority decision written by Justice Anthony Kennedy, while unclear on the legal basis for the Court's acceptance of the case, is perfectly clear in laying out why it found DOMA unconstitutional. DOMA's “principal effect” is to “impose inequality” of a particularly demeaning kind, in violation of the Fifth Amendment. By striking down DOMA, Kennedy writes, the Court hopes to reverse the “differentiation” of same-sex marriage that “demeans the couple...whose relationship the State has sought to dignify.” In short, the Court, by its decision, wanted to let homosexual individuals know that the government supports their push for equality under law, and in doing so to acknowledge the legitimacy of their marital unions compared to heterosexual ones.

    Outside the U.S. Supreme Court in Washington, D.C., on March 27, 2013. Photo by Sara Bissig.


Outside the U.S. Supreme Court in Washington, D.C., on March 27, 2013. Photo by Sara Bissig.

 So here we have it: the Court chose to hear the case because it wanted to take sides—not on a legal point related to gay marriage, but on the larger cultural debate of the issue itself. And this is where the fundamental church/state issue raised by the Court's decision comes to the fore. The fact that the government saw itself as having the power to confer “dignity” upon gay marriage, and the fact that gay marriage advocates saw this as necessary, speaks to a fundamental confusion over the role of government in relation to society.

As many scholars have pointed out, one major thread running through the American political system is individualism, i.e. the freedom of personal choice from outside influences, particularly those of institutional authorities. But as James Skillen points out in his book, Recharging the American Experiment, this liberation from all authority can ironically only be ensured by a strong governmental presence. “The flip side of individual autonomy, therefore,” he says, “is a political/legal system that must, at times, be able to lay claim to omnicompetent power over individuals in society.”

Under this conception of the state, it was not only inevitable but even desirable that the Court hear this case. A question like “What is marriage?,” despite dealing with an institution that in fact precedes the state, is nevertheless within its purview, because all such questions are framed as matters of individual rights, and only the state has the power to protect these rights. The old distinctions between the social, legal and the political are collapsed and only the political remains.

This is why Justice Kennedy, in rendering his decision, framed it first and foremost in societal terms, speaking of the way DOMA “humiliates tens of thousands of children being raised by same-sex couples” and “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community.” In other words, what is at stake is not primarily any restrictions on the legal rights of same-sex married couples, but the unequal standing in the culture of the United States that these restrictions imply. 

That the Court, a judicial body, sees itself as fit to weigh in on an essentially societal question speaks to the degree to which American culture has abandoned the idea that certain spheres of life can and should exist outside the realm of government oversight. This is why gay marriage advocates were placing so much hope in the decision of the Court, because they knew that in today's socio-political environment, such governmental support carries with it not only legal standing but also (and more importantly) a moral seal of approval. This is also the reason behind many homosexual activists' refusal to accept civil unions as a form of compromise: even though such unions are functionally equivalent to marriage, it is ultimately not the legal-financial benefits of marriage that are sought but the acceptance of gay marriage within the culture at large, and on this issue there can be no compromise.

Outside the U.S. Supreme Court in Washington, D.C., on March 27, 2013. Photo by Sara Bissig.   

Outside the U.S. Supreme Court in Washington, D.C., on March 27, 2013. Photo by Sara Bissig. 

What we need, then, is a renewal of the idea that we are more than simply the sum of our political allegiances but in fact live in a diverse and differentiated society. We are citizens of a political structure, yes—but also members of religious bodies, professional associations, families, and the like, each organized according to its own rules and imposing particular duties upon its members.  Under the system of “principled pluralism” advocated by Skillen and others, it is the role of the state to protect and enforce these rules and duties, but it is not the state that creates them.

This is important because it prevents the “winner-take-all” mentality that undergirds every aspect of the so-called “culture wars,” of which gay marriage is the most prominent example. The use of the word “war” implies not only a fight between two sides but that one side will ultimately emerge victorious, able to impose its will over the defeated party. But in a differentiated world where the government is not the ultimate arbiter, how could such a victory be enforced? For those hoping to end the culture wars, principled pluralism thus offers the most peaceful way to do so; not by deciding in favor of one side or the other, but by taking from both sides the weapons used to wage such wars.

An image making therounds on social media defiantly proclaims that “the Supreme Court has not ended the debate. It has started a movement.” Based on the reaction to the decisions from my many conservative religious friends, this might not be far from the truth. My concern, however, is that this movement is coalescing around the wrong debate. What Christians should be pushing against is not so much the content of the Court's decisions but—to quote Justice Scalia's dissenting opinion—the “exalted conception of the role of this institution in America” that made those decisions possible in the first place. Such a system of undifferentiated political hegemony may be harnessed for Christian purposes, but it would be a mistake to call it a proper Christian system.

-Jason Bach is an M.Div. candidate at Princeton Theological Seminary in Princeton, NJ and currently works as a summer intern at the Center for Public Justice in Washington, DC, researching issues at the intersection of religion and politics.You can contact him at