The Case for Traditional Marriage/Program 6

By: Tony Perkins, Craig Parshall, Dr. Jim Garlow; ©2010

Is a traditional one man/one woman marriage actually better for society? Where has the church failed society in the issue of marriage?

Introduction

Ankerberg: Welcome to our program. We’ve got a great one for you today. We’re talking about what is The Case for Traditional Marriage? Is there a case that can be made? We’re hearing a lot of things taking place in our country about why we ought to have same-sex marriage. And so we’re talking about the other side here, what’s the case for keeping traditional marriage the law of the land? And you know that after Proposition 8 was passed, and seven million Californians voted to keep traditional marriage, that Judge Vaughn Walker came up with a decision and said that, no it’s unconstitutional to state law, in fact he went even further than that, Craig. What did he say?

Parshall: Well, in the Proposition 8 case, you had a San Francisco federal judge by the name of Vaughn Walker. And you’re not talking about state law now, you’re talking about the application of the federal Constitution. And amazingly, shockingly, stunningly to me, he found an actual Constitutional right for homosexuals to require the same equal right to be married as heterosexual couples.

Ankerberg: Alright, Tony, where is this going? He made that decision, now it’s on its way up to the Supreme Court. Do you see anything that will hinder it getting up to the Supreme Court?

Perkins: Well, those who were trying to advance same-sex marriage intentionally sought this jurisdiction because they were venue-shopping for a judge, for a circuit that they thought would be favorable. This is in the Ninth Circuit. It will go to a three-judge panel in the Ninth Circuit. Now, the Ninth Circuit is the most overturned appellate court system, court circuit in the country. They’re the same ones that gave us the decision about the Pledge, that “under God” is unconstitutional. So it’s not beyond them to put forth absurd ideas. So, you know, we don’t know if it’s going to pass that three-judge panel. My guess is it probably does, moves its way on up to the Supreme Court, could be there within 18-24 months.

Ankerberg: Okay, now I’m coming back to you, Craig. You have actually presented cases before the Supreme Court, and you know the Court. And my question to you is, what do you think is going to happen? Do you have any hope that we’re going to keep traditional marriage?

Parshall: There’s a bad new good news scenario here. Let me start with the bad news. Bad news is that Justice Kennedy is the swing vote. He’s good on some issues, but on these homosexual rights issues he’s very, very bad. He was wrong on Romer vs. Evans, or a constitutional amendment by the voters in Colorado that simply said, “We will not give special rights to homosexuals in employment or other regulations.” It was overturned by the Supreme Court. He was also wrong, he meaning Justice Kennedy, in the Lawrence vs. Texas case in 2003…

Ankerberg: Yeah, now let’s stop right there. I mean, I’ve always wanted to ask a constitutional lawyer on this one. How in the world did the Supreme Court find a right to sodomy in the Constitution?

Parshall: Well, here’s what they did. They look at the actual facts of the case, which was whether or not the state of Texas could criminalize, that is to say make it a criminal penalty, to commit homosexual acts. And in order to get there they had to disallow, they had to reverse a decision from 1986 called Bowers vs. Hardwick, which found just the opposite. It found that homosexual, activity is not a fundamental right, it’s not constitutionally protected. Moreover a state has the right, if they want to, to criminalize it. Now, there is good public policy reasons why maybe we should criminalize homosexual conduct, and I’m not advocating it. But in that case, 1986, the Supreme Court said states can make that choice through their voters and their elected officials. In 2003 that right was taken away. How did they do that? They did it by saying, “Well, there’s an evolving standard in America over the last few decades since Bowers vs. Hardwick.”

Well, let me stop right there. The evolving standard is no business of the US Supreme Court. The US Supreme Court is to look at the intent of the Founders who drafted the Constitution, and not look at the shifting sand of everyday culture to say, by putting a flag out or reading the newspaper, to find out where our society is. That’s not the job of lawmen. That’s the job of lawmakers, that’s not the job of jurists. A jurist is to take the law and apply it, the role of a legislature is to create the law.

Well, what they did is they said there are evolving standards, there’s an emerging trend, is what the language was, recognize the rights of homosexuals. But they stopped short, and I need to emphasize this. The court stopped short in Lawrence vs. Texas on recognizing homosexuality as a fundamental right. They did not do that. And so right now it’s not recognized as a fundamental right under the Constitution. It is in that nebulous gray zone. Where are we heading? Next stop is Supreme Court on marriage, I believe, on Proposition 8.

Now, I said this was a bad new good news situation. Here is the good news. Language is important in Supreme Court cases, and sometimes a phrase will be dropped, overlooked by the media, popular culture doesn’t discuss it, but the lawyers watch it. I’m one of the lawyers watching it. In Lawrence vs. Texas, the Supreme Court, with Justice Kennedy as the swing vote there, made it clear that the state has the power to define the regulations for relationships. Well, what does that sound like to you? That sounds like marriage, doesn’t it? A relationship regulated by the state as an example of marriage. They said the state has the power to regulate relationships in cases where there is a risk that institutions that the law protects may be abused. Well, what does that sound like? Marriage is one of those institutions that may be abused by a same-sex marriage ruling such as Judge Walker.

So I think that there’s hope based on that one thin thread, that golden thread based on one phrase, and that is that the law can protect institutions from abuse when they’re central to our society. And I think they may have been thinking about marriage when they issued that decision, trying to appease the American people that just because we’re striking down criminalization doesn’t mean we’re going to legalize same-sex marriage.

Ankerberg: Let’s go the whole route. Let’s say that they do pass it, and same-sex marriage becomes legal in this country. What are the ramifications? Judge Walker says, hey, it’s not going to hurt the traditional family at all.

Parshall: Well, I think that’s a travesty. And it flies in the face not only of recent history, but of very immediate Supreme Court history. Let me give you a case that was just recently decided by this Supreme Court. The only difference in the playbill of players now is Elena Kagan came in and Justice Stevens left. But basically it’s the same court. And here’s what the Court held in Christian Legal Society vs. Martinez. Christian Legal Society has chapters in most of the law schools around this country. They are distinctly Christian as a ministry. They applied for official recognition at the Hastings Law School in California. So far so good. But then Hastings Law School says, “Well, we have a code that you need to agree to.” Alright, what code? “The code is you have to agree not to discriminate based on homosexuality in your leadership.” Well, the Christian Legal Society said, “We can’t sign that. We’ll allow homosexuals or any person to come to our Bible studies or to participate in our events, but not to vie for leadership. That would violate the biblical standards of our ministry.” The case went all the way to the US Supreme Court, and again, in another stunning reversal, the Supreme Court says, “No. No, it’s fine for Hastings Law School to enforce a nondiscrimination, pro-homosexual code on a Christian ministry and deny them recognition if they fail to deny their faith.” Now, that’s what’s coming, is official discrimination against Christians who refuse to give up their faith-based decisions in the face of this popular culture that’s demanding recognition for homosexuality.

Ankerberg: Yeah. How is this going to affect us in the work place? How is this going to affect us in our churches? How is this going to affect us in our schools?

Parshall: Well, let me give you one example in terms of churches, in terms of Christian ministries. There was a case a number of years ago called the Bob Jones case. And here’s the bad result of that ruling. The Supreme Court said that the IRS could deny tax exempt status to any Christian ministry that is found to be in violation the public policy of America. You say, well, what’s the public policy of America? Well, if same-sex marriage passes as a Constitutional right from the Supreme Court, then it becomes part of the national public policy of this nation. And now churches and Christian ministries that say, “No. Wait a minute. Our Christian conscience doesn’t allow us to accept this; the Bible in Romans 1 and through the Old Testament through the New Testament condemns this kind of activity,” you’re going to be faced with a very tough choice. You may well be losing your tax exempt status if we continue on this road and we see same-sex marriage established as part of our national public policy.

Ankerberg: What else do you see happening, Tony?

Perkins: Well, that goes even to Christian education, to colleges, Christian colleges, because almost,… you know, many students get some kind of federal aide, they could be brought into this. So it’s that loss of religious freedom. But you know, we have to realize, John, that religious freedom is not just what we do inside the four walls of the church, it’s living out our faith. That clearly is in contrast with the direction that the Court is going in this case. But even more fundamentally, it’s what we have talked about in the last few weeks is the impact that this is going to have upon the family. When we redefine marriage, we are going to create an environment in which children are going to grow up without a mother or a father. And we’ve established the fact that that’s fundamental. But we’re also going to deprive adults of what is the most rewarding and fulfilling relationship here on this earth and that is marriage. The social science is in abundance showing that men and women who are married, they live longer, they have better health, financially they’re better off. I mean, you look at all the indicators, and they do better. And it’s because of that marriage relationship. That’s in jeopardy. Because if you look in jurisdictions such as Norway, and others that have been down this path before us on same-sex marriage, you see the rates of marriage decline, you see cohabitation increase, and you see out of wedlock births rise. More children without moms and dad, more men and men, women and women, not compatible in their creation, being together. Less rewarding, less physically fulfilled.

Ankerberg: Tony, in a general way, I think every social problem that we have can be traced back to the breakup of the traditional family. And in general numbers, what kind of costs are being exploded here because we are breaking up the traditional family?

Perkins: There’s no questions there’s a common denominator. When you look at juvenile delinquency, when you look at social welfare cost, when you look at rising healthcare cost, you know, there is one common denominator and it is the breakup of the family. And back when I was a policymaker in office, that’s what led me and my colleague to support the effort to pass the first covenant marriage law, which other states have replicated because they understand that when you have strong families, that are girded by strong marriages, it costs society less. And, you know, in this age when we’re all concerned about the rising costs of government, and taxation, and runaway spending in government, the last thing we should be doing is moving toward policy that will break down the family further. We should be doing everything we can to strengthen marriage between a mom and a dad, strengthen that environment in which children are raised to be responsible and respectful and resourceful citizens. That’s what we need more of, not less.

Ankerberg: Alright, we’re going to take a break. When we come back we’re going to talk about the frustration. You’ve got 45 states that have either voted, the whole constituency, or have passed measures in the legislature to keep traditional marriage. And we’re going to have a roomful of guys that basically are going to change it for our whole society? Everybody wants to know, what can we do about this? We’re really feeling frustrated. We’re going to talk about that question when we come right back. Stick with us.

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Ankerberg: Alright, we’re back. We’re talking with Tony Perkins, President of the Family Research Council, Washington, DC. And we’re talking with Craig Parshall, Senior Vice President and General Counsel for the National Religious Broadcasters. And, Craig, I’ve got to ask you this question, you being a constitutional lawyer in all this, the fact is, we’ve got 45 states here that have either voted, what are there, 30, 31 states, that have voted, their entire constituency, to keep traditional marriage. And you’ve got the others that the legislature has passed this, so 45 out of 50 is not bad. We’re talking six, ten guys, 12 guys, a room full of guys here by the time we get to the Supreme Court and done, that could change it for our entire country? Our people want to know, what can we do about this?

Parshall: I think we ought to look at both the beginning and the end of this travesty. First of all, the beginning. Where did this come from? Justice Scalia gave us an indication where the source of the problem is in one of his dissents in the case of Romer vs. Evans. It’s a case where the Supreme Court got it wrong, supported homosexual rights, and struck down a Proposition 8 type measure in the state of Colorado. He said the problem has generated in the American law school system, the Association of Law Schools has required membership to subscribe to a non discrimination based on homosexuality standard. He said they’ve already bought into the popular culture of the right of homosexuality as a privileged status. So frankly, if people know a Christian law school near you, and I know a number of them, I’ve mentored law students from them, I’d support them. I’d send your students to them. I’d think about contributing to them, because we need a new generation of lawyers who will be the future generation of judges who will go back to original intent rather than making it up as they go along.

Second of all, we need to see the immediate relief that we need in terms of judges being selected. Right now the United States Senate has the power to ratify, to affirm, or to reject any nominations by the President of the federal judiciary. That means judges from everything from the trial to the Court of Appeals up to the US Supreme Court. These are judges deciding these cases. So if you don’t want black-robed tyrants to take away the will of the people, you need to get Senators who will vote for the right judges rather than the wrong ones. You need to find out where you Senators stand on this whole idea of judicial philosophy of judges.

Ankerberg: You… go ahead.

Perkins: I would add one more thing we need to do. And that is, we need to refocus on marriage itself. And I think in our churches across America we have to be honest with ourselves, that one of the reasons that I believe marriage has been vulnerable to this attack and redefinition effort by homosexuals is because we neglected it. We did not uphold marriage as God created it to be. When you look at the divorce rates, when they are in the church they mirror what’s happening on the outside, something’s wrong. And I would challenge preachers, pastors, to refocus on preaching the word of God and upholding a standard of marriage. Even though we’re at this point we still need to turn back and restrengthen marriage for the sake of our own children, for the sake of our communities, and I think ultimately for our country.

Ankerberg: You were also telling me something interesting during the break there, Craig, about, the fact is that Barack Obama actually gave us his paradigm of what a Supreme Court judge ought to be. So if we elect another one, he’s already told us what we ought to be looking for, and what was that?

Parshall: Very overtly, President Obama came out and he was asked, you know, what kind of model do you want for Supreme Court choices. By the way, he’s already selected two. It’s on the average two to three during each administration. He’s already selected two. He said, well, here, my model is Justice Stephen Breyer. Justice Breyer has been on the Court for 16 years. He’s now inherited the mantle of being the head of the liberal wing of the Supreme Court. Justice Breyer believes this about the Constitutional role of judging. He says the Constitution is a document that needs to be reinterpreted for every generation by that generation, which means it’s a constantly changing type of chameleon rather than a document that has enduring values.

Now, that’s not the only standard of judging. There are other judges, including justices on the Supreme Court now, Alito and Justice Scalia and Justice Thomas, and others, who believe that, no, there have to be enduring values as discerned by the intent of the original Founding Fathers. And if you don’t like that vision of the Constitution as drafted, then you need to change it by the Constitutional Amendment process, not by having one black-robed tyrant decide to read into the Constitution that which the Founders never intended.

Ankerberg: And the Constitutional process is, we vote.

Parshall: That’s right. We vote. The Congress initiates it, the states then have to ratify it, and that has all the earmarks of the original intent of the Founding Fathers for the slow but sure change for this kind of a Constitutional Amendment.

Ankerberg: I come back the question again, the people that are frustrated. They see this train coming down the tracks, and they’re saying, “What can we do now?” Is there hope for this federal marriage amendment?

Perkins: I think there is, but it goes back to what Craig said. When you look at the members of Congress, they are the ones that put forth a marriage amendment that could be ratified by the states. And so, I think top at our list, you know, we’ve been very good I think at the life issue over the last 35 years. We’ve gotten much better at that, where I think we’re really on the verge, depending on where the Court is, of seeing this nation once again being predominately pro-life. We’ve asked the question when we’ve voted for somebody, are they pro-life? I mean, it is a qualifier. It needs to be a qualifier, do they support marriage between a man and a woman and are they willing to vote that way and stand up and defend it? It needs to be a qualifier. And so anybody we vote for in office needs to, we need to be able to check that box.

Ankerberg: Yeah. And I think what we’ve got to tell the people is, listen, you won’t get a chance to vote on it again until the House and the Senate vote that we get a chance to do that.

Perkins: Yeah. And it’s not enough just to know what their party affiliation is. Because even when the Republicans controlled the Congress, a marriage amendment did not emerge from that Congress. And it doesn’t have to go to the President, it just goes through Congress and then on through the states for ratification. So, it’s important that you be very specific in finding out where those who are running for office stand on the issue of marriage. Will they defend traditional marriage as God created it, as history has shown us that it works, between a man and a woman?

Ankerberg: Alright. We’ve done all these programs on The Case for Traditional Marriage, what are the things you want folks to walk away with? What are your concluding comments? Craig, we’ll start with you.

Parshall: First of all, there are storm clouds on the horizon. We can’t ignore them. This problem is now but it’s not an irreversible problem. We still have the mechanism in our constitutional republic, which is the form of government we have, to make changes. We make changes at the election ballot box. We make changes by talking to other people in our churches and our associations, places of work. And we become apologists for traditional family, like Tony indicates, not just in our communications and our ability to make the points and make the case, but in our lifestyle and the way in which we live our family values out.

Ankerberg: Tony?

Perkins: Time is short, but I believe we can still prevail and this country can continue to move forward stronger than ever if we will renew our effort to strengthen the American family by returning to our understanding of roles as moms and dads. And that’s something that each of us can do. This is not a farfetched, that we’re powerless to do anything about it. We can live it out in our own lives as committed moms and dads, as committed husbands and wives, as an example. And going back to the covenant marriage law that I talked about, that is what that was supposed to be was living out marriage through the faith community primarily to show there is a better way, and this is the way to do it. So I think you can have a profound impact by being faithful in your marriage, by being a good mom and a good dad. And I believe we can see the cultural change that needs to take place in this country. But marriage is fundamental in this discussion.

Ankerberg: Folks, I tell you what. These two fellows are terrific. Guys, I appreciate you coming. And those of you in our audience, when you see them on television, okay, please pray for them. Those are pressure packed moments where the deck is usually stacked against them. And they have courage just going into those situations. We’ve got to pray that God uses them in a great way. And we do need to pray that the Lord will grip the hearts of our people, that some of the things that we’ve talked about in these programs, that you will understand, you’ll take to heart, you’ll realize what the problem is and what the answer is, and get on our knees, live our lives before the Lord the way that he would want us to do. And then ask God to bring a change in our country. I do believe this can be reversed, but we’ve got to start acting now. So, guys, thank you for being with us, and we appreciate all this great information that you’ve presented to us. And folks, I hope that you’ll join me again next week.

Read Part 7