Marriage ‘non-decision’ draws Roe comparison

The Supreme Court’s refusal to rule on same-sex marriage amounted to a stealth version of Roe v. Wade on the issue, Southern Baptist ethicist Russell D. Moore told a national television audience.

Appearing on C-SPAN Oct. 14, the president of the Ethics & Religious Liberty Commission (ERLC) said the justices’ decision not to review lower-court invalidations of state laws banning gay marriage “was essentially an under-the-radar Roe versus Wade for marriage.” Roe v. Wade was the high court’s 1973 opinion that struck down all state bans on abortion.

The Supreme Court’s Oct. 6 orders involving laws in five states across three federal appellate circuits – and an ensuing decision by an appeals court – supposedly will result in same-sex marriage being legal in 35 of the 50 states. Before the action, gay marriage was legal in 19 states and the District of Columbia. The justices’ “non-decision decision,” as Moore described it, leaves open the question of the constitutionality of same-sex marriage nationally, but it appears highly unlikely the current court would invalidate such unions.

He doesn’t know “what the end game is in the short term, but it’s very clear where the court is wanting to go, and that is toward finding a constitutional right to same-sex marriage,” Moore told “Washington Journal” host Greta Wodele Brawner. “I, of course, don’t think there is any such constitutional right.”

The high court’s denial of the appeals was not “something I was all that surprised by,” given its ruling last year in a marriage case, Moore said. That 2013 decision “laid the groundwork for what they wanted to do,” he said of the majority of the justices.

In last year’s opinion, the justices struck down a section of the federal Defense of Marriage Act that recognized marriage as only between a man and a woman. Though the high court refused in that decision to say states could not limit marriage to heterosexual couples, most lower courts have used the decision as a basis for striking down state laws that define marriage in that manner.

Moore said the Supreme Court’s latest action “doesn’t settle the debate, because we will continue to debate what marriage is and why the government ought to have an interest in marriage at all.”

Short term, the situation “looks very bad for people who believe in traditional marriage, as I do,” Moore said. “But long term, I am more optimistic. I think marriage is resilient, and I think we’re going to be having this conversation for a long time. I don’t think the sexual revolution is going to be able to keep the promises that it’s making.”

Southern Baptists don’t desire the harm of homosexuals, Moore told Brawner and callers who questioned him on the issue. “We don’t want to see them mistreated in the community,” he said. “But we do think though that sexuality is biblically moral only within the confines of marriage, and marriage is defined as the union of a man and a woman. And so we would make a great distinction between the way we ought to love people and care for people and what it means to call people to repentance.”

Moore said, “I think there’s a reason why government is involved in marriage between a man and a woman, because it’s a unique sort of relationship, that it … ideally can produce children. There’s a different government interest there than there is in other relationships of any kind.”

Brawner asked Moore if he would support civil unions for same-sex couples. “I wouldn’t support marriage in some other name,” he replied.

In other responses during the telecast:

• His top legislative priority is “religious liberty protection,” Moore said. Though the justices ruled in June in favor of the religious freedom of for-profit businesses such as Hobby Lobby that object to the Obama administration’s abortion/contraception mandate, “[T]he very fact that we had to go to the Supreme Court in order to say that the government shouldn’t have the power to pave over the consciences of people to act against what they believe is morally wrong [is] a troubling sign,” he said. The ERLC, Moore said, wants “to protect the religious liberty of those people who say, ‘I can’t in good conscience participate, for instance, in a same-sex wedding,’ or ‘I can’t participate in something that would go against my conscience.’ And we believe that is true for all Americans, not just for us. We want religious liberty for everybody.”

• Regarding the deadly Ebola virus, Moore said churches should pray and be informed. He also said the demonizing of missionaries who minister to Africans with the disease should stop. “That is deeply obnoxious,” he said. “We need the people of God to minister to those who are suffering. As Christians, we have always been willing to do that for 2,000 years, and we need to be continually willing to do it. I do think we need to warn against this idea that somehow we can become fortress America, and we can just keep Ebola across the sea in Africa as though Africa were not our problem. We cannot say of Africa, ‘Who is my neighbor?’ We need to instead recognize that these are human beings made in the image of God, and we need to do everything we can to try to remedy this, not only in the few cases we’re seeing in the United States but also ultimately in Africa.”

• Southern Baptists and other evangelicals bear a responsibility to remain faithful to Christian doctrine, but they also “have a responsibility to be compassionate to people and understand that we are to love every person and to respect the dignity of every person,” Moore said. “We believe that every person is created in the image of God. And so we don’t see people who disagree with us as enemies to be vaporized. We instead think we ought to be talking to one another to persuade one another. And I don’t think that’s weakness, and I don’t think that’s backing down.”

(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press, the Southern Baptist Convention’s news service.)