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The Supreme Court has foisted same-sex marriage upon us and we in the United States have just crossed the Rubicon. This is the day of division, a re-counting of time. There was a “before today and an after,” and America will never be quite the same as religious people have to begin to struggle to keep freedoms they thought were a given in this country. With this decision, religious people have been recast as bigots, put in this position by unelected judges who far exceeded the restraint critical to their offices.
It is an ill wind that’s blowing, a portent of things to come. We have seen 5 unelected, elitist judges stop the democratic process in its tracks, and replace the right of the people in a democracy to debate, persuade and vote with an edict from above.
Democracy took a major blow today.
If the people vote on an issue, they can talk and lobby and convince each other and vote again another day if sentiments change. Once the Supreme Court has arrogantly defined something as a new Constitutional right, the debate is closed and out of our hands.
No one spoke more eloquently about the arrogance of this than the dissenting Justices themselves. “Just who do we think we are?” wrote Chief Justice John Roberts. Justice Antonin Scalia said that is not of special importance to me what the law says about marriage. “It is of overwhelming importance, however, who it is that rules me.”
He continued, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”
He said, “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” He continued “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
“What really astounds me is the hubris reflected in today’s judicial Putsch.”
This Court is Not a Legislature
Justice Roberts felt so keenly the danger of the power the Court abrogated to itself that he read his dissent aloud, the first time this has happened during his 10-year-tenure.
“This Court is not a legislature,” he said. “Whether same-sex marriage is a good idea or not should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.” He added “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not.”
He said, “The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial ‘caution’ and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”
The Constitution was designed as a foundation for a nation so that people with fundamentally different ideas could appeal to the law. This judgment on same-sex marriage came from the preference of the five Justices to make a new world, based on their own sweeping ideology.
It is a perilous moment for us all—especially if our ideas are not popular with the elite.
Founders Risked their Lives to Govern Themselves
Speaking of the Justices who ruled in favor of same-sex marriage, Justice Roberts said, “Those who founded our country would not recognize the majority’s conception of the judicial role. They, after all, risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”
A right to same-sex marriage was invented today by the Court that was not in the Constitution nor could reasonably be found in the Fourteenth Amendment’s Due Process clause. The Court had to pretend it was “implied” there and they had to invent a liberty that those who ratified this amendment could have scarcely imagined.
“If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
Justice Scalia again, “We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.”
Justice Clarence Thomas added, “The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits” (such as the benefits that come with marriage).
The trampling of democracy in this fashion marginalizes voters, “We the people,” who learn that this is not our government, accountable to us. We learn our voice is as so much wind, our vote meaningless.
Justice Samuel Alito in his dissent signals that this is not just the demise of marriage, “Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the county, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.”
The Supreme Court majority today ploughed over the law to get their own end, reminiscent of that moment in A Man for All Seasons when William Roper and Thomas More had the following interchange:
William Roper: So, now you give the Devil the benefit of the law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.
The Supreme Court plowed over the Constitution today, and everybody is less safe for it.
“It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds,” said Roberts.
The Impact on Religious Freedom
It is anguishing what this might mean for religious freedom. We’ve seen hints of it for some time. Could churches or religious universities lose tax-exempt status? Could a school like BYU, with an honor code that prohibits homosexual practice, lose its accreditation? Would its graduates or anyone who opposed same-sex marriage be barred from professional associations? Would bishops, pastors or ministers be compelled to perform same-sex marriages? Will people be socially punished or lose jobs if their conscience doesn’t allow them to support same-sex marriage? If same-sex marriage is a civil right, how can you be protected if you oppose it?
Some were heartened today because Justice Anthony Kennedy said in ruling with the majority:
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspiration to continue the family structure they have long revered.”
The dissenting Justices were not so easily fooled. Justice Roberts said, “The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
“Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”
That is sobering, a suggestion that a First Amendment right that we count on, may not be protected by the majority of the Court. Justice Thomas agreed, noting that amicus briefs submitted to the Court in this case cautioned that its decision will “have unavoidable and wide-ranging implications for religious liberty.”
He said, “It appears all but inevitable that the two will come into conflict particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
“The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph [quoted above]. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.
“Religious liberty is about more than just the protection for ‘religious organizations and persons…as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”
Roberts and Thomas agreed that if the Court had allowed the definition of marriage to be left to the political process—as the Constitution requires—“the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process.”
“Federal courts are blunt instruments when it comes to creating rights,” Justice Roberts writes, because “they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right.”
The dissenting Justices understand the issues and probed them well, but the question is what are we do to now in such a sorry state as this decision has left us?
Many pastors have already said they will dissent with civil disobedience. Some national organizations have action plans.
Sen. Mike Lee and Rep. Raul Labrador have introduced important legislation called the First Amendment Defense Act that would prevent any agency from denying a federal tax exemption, grant, contract, accreditation, license, or certification to an individual or institution for acting on their religious belief that marriage is a union between one man and one woman.
This is a bill that must be supported and passed quickly.
Beyond that, however, it is not the time to clam up, shut up, or lie low. More than ever, despite this setback, we have to be involved in the political process. We have to work on every level to carve out religious freedom exemptions from laws that would strangle our religious freedom. It will be a time that demands courage of us not only publicly but personally. Religious people in all of history have been called upon to act with courage. We can too—and now we must.