This was inevitable and that’s a bad thing.
Yet, while Facebook lights up with rainbow shaded pictures and #LoveWins does the rounds, be assured that nothing has really changed.
My dad always used a memorable expression: “He’s a legend in his own mind,” he would say. Simply, it highlights the distinction between perception and reality and it’s a most relevant saying: homosexual marriage is only in the mind.
Sure, five wise guys and a popular cultural movement might see marriage as open to homosexuality. They may have even stuffed a constitution and some laws under it. But even with the support of the President of the free world, it’s still only in their minds.
Marriage remains unchanged: a man and a woman under God, exclusively until death.
Certainly, some powerful people have been using doublespeak but in the end, holding up two fingers does not equal holding up three fingers, even if you start twisting arms and breaking kneecaps. There’s simply no redefining reality.
Only God can do that.
With this in mind, it’s worth being aware and preparing yourself fr what has been awhile coming against the church and Western Christianity.
Do not fear, trust in Jesus, prepare to endure trials and hardship in Gods grace, and consider the following council from the wise.
Everything has changed and nothing has changed. The Supreme Court’s decision yesterday is a central assault upon marriage as the conjugal union of a man and a woman and in a five to four decision the nation’s highest court has now imposed its mandate redefining marriage on all fifty states.
As Chief Justice Roberts said in his dissent, “The majority’s decision is an act of will, not a legal judgment.”
The majority’s argument, expressed by Justice Kennedy, is that the right of same-sex couples to marry is based in individual autonomy as related to sexuality, in marriage as a fundamental right, in marriage as a privileged context for raising children, and in upholding marriage as central to civilization. But at every one of these points, the majority had to reinvent marriage in order to make its case. The Court has not merely ordered that same-sex couples be allowed to marry – it has fundamentally redefined marriage itself.
The inventive legal argument set forth by the majority is clearly traceable in Justice Kennedy’s previous decisions including Lawrence (2003) and Windsor (2013), and he cites his own decisions as legal precedent. As the Chief Justice makes clear, Justice Kennedy and his fellow justices in the majority wanted to legalize same-sex marriage and they invented a constitutional theory to achieve their purpose. It was indeed an act of will disguised as a legal judgment.
Justice Kennedy declared that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex cannot be deprived of that right and that liberty.” But marriage is nowhere to be found in the Constitution. As the Chief Justice asserted in his dissent, the majority opinion did not really make any serious constitutional argument at all. It was, as the Chief Justice insisted, an argument based in philosophy rather than in law.
The Supreme Court’s over-reach in this case is more astounding as the decision is reviewed in full, and as the dissenting justices voiced their own urgent concerns. The Chief Justice accused the majority of “judicial policymaking” that endangers our democratic form of government. “The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now,” he asserted. Further: “Over and over, the majority exalts the role of the judiciary in delivering social change.”
“The majority,” he made clear, “lays out a tantalizing vision for the future for Members of this Court. If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”
That is a haunting question. This Chief Justice’s point is an urgent warning: If the Supreme Court will arrogate to itself the right to redefine marriage, there is no restraint on the judiciary whatsoever.
Justice Antonin Scalia offered a stinging rebuke to the majority. “This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government,” he stated. Justice Scalia then offered these stunning words of judgment: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The Chief Justice also pointed to another very telling aspect of the majority opinion. The Kennedy opinion opens wide a door that basically invites looming demands for the legalization of polygamy and polyamory. As Chief Justice Roberts observed: “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” Striking, indeed. What is perhaps even more striking is that the majority did not even appear concerned about the extension of its logic to polygamy.
As the decision approached, those of us who have warned that the redefinition of marriage will not stop with same-sex unions were told that we were offering a fallacious slippery-slope argument. Now, the Chief Justice of the United States verifies that these concerns were fully valid. You can count on the fact that advocates for legalized polygamy found great encouragement in this decision.
The Supreme Court of the United States is the highest court in the land, and its decisions cannot be appealed to a higher court of law. But the Supreme Court, like every human institution and individual, will eventually face two higher courts. The first is the court of history, which will render a judgment that I believe will embarrass this court and reveal its dangerous trajectory. The precedents and arguments set forth in this decision cannot be limited to the right of same-sex couples to marry. If individual autonomy and equal protection mean that same-sex couples cannot be denied what is now defined as a fundamental right of marriage, then others will arrive to make the same argument. This Court will find itself in a trap of its own making, and one that will bring great harm to this nation and its families. The second court we all must face is the court of divine judgment. For centuries, marriage ceremonies in the English-speaking world have included the admonition that what God has put together, no human being – or human court – should tear asunder. That is exactly what the Supreme Court of the United States has now done.
The threat to religious liberty represented by this decision is clear, present, and inevitable. Assurances to the contrary, the majority in this decision has placed every religious institution in legal jeopardy if that institution intends to uphold its theological convictions limiting marriage to the union of a man and a woman. This threat is extended to every religious citizen or congregation that would uphold the convictions held by believers for millennia. Justice Clarence Thomas warned in his dissent of “ruinous consequences for religious liberty.”
One of the most dangerous dimensions of this decision is evident in what can only be described as the majority’s vilification of those who hold to a traditional view of marriage as exclusively the union of a man and a woman. Justice Samuel Alito stated bluntly that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” According to the argument offered by the majority, any opposition to same-sex marriage is rooted in moral animus against homosexuals. In offering this argument the majority slanders any defender of traditional marriage and openly rejects and vilifies those who, on the grounds of theological conviction, cannot affirm same-sex marriage.
In a very real sense, everything has now changed. The highest court of the land has redefined marriage. Those who cannot accept this redefinition of marriage as a matter of morality and ultimate truth, must acknowledge that the laws of this nation concerning marriage will indeed be defined against our will. We must acknowledge the authority of the Supreme Court in matters of law. Christians must be committed to be good citizens and good neighbors, even as we cannot accept this redefinition of marriage in our churches and in our lives.
We must contend for marriage as God’s gift to humanity – a gift central and essential to human flourishing and a gift that is limited to the conjugal union of a man and a woman. We must contend for religious liberty for all, and focus our energies on protecting the rights of Christian citizens and Christian institutions to teach and operate on the basis of Christian conviction.
We cannot be silent, and we cannot join the moral revolution that stands in direct opposition to what we believe the Creator has designed, given, and intended for us. We cannot be silent, and we cannot fail to contend for marriage as the union of a man and a woman.
In one sense, everything has changed. And yet, nothing has changed. The cultural and legal landscape has changed, as we believe this will lead to very real harms to our neighbors. But our Christian responsibility has not changed. We are charged to uphold marriage as the union of a man and a woman and to speak the truth in love. We are also commanded to uphold the truth about marriage in our own lives, in our own marriages, in our own families, and in our own churches.
We are called to be the people of the truth, even when the truth is not popular and even when the truth is denied by the culture around us. Christians have found themselves in this position before, and we will again. God’s truth has not changed. The Holy Scriptures have not changed. The Gospel of Jesus Christ has not changed. The church’s mission has not changed. Jesus Christ is the same, yesterday, today, and forever.
If ever a time the phrase “Now the end begins” meant something, it is now. In a decision just as sinister, far-reaching and abominable as the 1973 Roe v Wade decision on abortion, the Supreme Court of the United States has just declared that reality and biology no longer exist, and we can now declare marriage to be whatever we want it to be.
scotus 5In a 5-4 decision, the unelected, unaccountable and irresponsible judges declared that the laws of all 50 states must now be struck down, and the decision of these five judges will now determine what marriage means. One report puts it this way:
The Supreme Court on Friday delivered an historic victory for gay rights, ruling 5-4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.
The court’s action marks the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence. Advocates called it the most pressing civil rights issue of modern times, while critics said the courts had sent the country into uncharted territory by changing the traditional definition of marriage.
“The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the opinion by the court’s liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
All four of the court’s most conservative members—Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.—dissented and each wrote separate opinions. Reading a dissent from the bench for the first time in his tenure, Roberts said, “This is a court, not a legislature.”
Judicial activism at its worst has once again struck America. Instead of allowing the American people to decide, five judges have decided for them, and have declared war on marriage, on God, on morality, on family, and on our children. Writing before this decision, Focus on the Family enumerated some of the direct consequences of this:
We will continue to see religious freedom taking a back seat to sexual freedom in many facets of society:
-Harms Children: Redefining marriage denies children of same-sex couples either a mother or a father. Decades of social science research has shown children do best when they’re raised in a home with their married mom and dad. Government policies should reflect the benefits of both a mom and a dad.
-Forced Closures: Faith-based adoption agencies are being forced to close their doors when faced with laws and mandates requiring them to violate their religious beliefs by placing children in homes with same-sex parents. This pressure will increase in the coming days.
-Legal/Public Challenges: Christian business owners – photographers, bakers, inn keepers, florists and others – who politely decline to use their talents and businesses to participate in same-sex ceremonies experience harassment, legal challenges and crippling fines.
-Parental Rights: Parents who want a say in what their young children are being taught in school about homosexuality have found legalized same-sex marriage is a “trump card,” which overrides their parental rights, leaving them no say in the matter.
-Tax-Exempt Status: Pastors and churches will face pressure to perform and celebrate same-sex marriages or face government retribution, such as the loss of tax-exempt status, or possibly be prosecuted for discrimination.
-Accrediting/Licensing: Private religious school accreditation, professional licenses and even employment criteria will increasingly require affirmation of homosexuality and same-sex marriage as a condition for approval.
-Counseling: There will be a continued push to ban counseling for teenagers who struggle with unwanted same-sex attractions, and who desire therapy to address this.
-Grant Exclusions: Faith-based charities that adhere to God’s design for sexuality, marriage and family will be excluded from government grants that help serve the poor and needy at home and abroad.
-Endangered Freedoms: Freedom of speech will become endangered as the government passes regulatory and even criminal laws punishing Christian views of marriage, deeming it as “hate speech” in any type of media, including radio, print, television, and the Web. This is already the case in Canada and the U.K.
This is just the beginning. This is a declaration of war by five judges who have spat in the face of their Creator, of marriage, of biology, and freedom. Now a major proper response for Christians and others is massive civil disobedience and defiance of this homo-fascist decision.
Whole libraries will soon be penned on all this. Let me cite a few authors who wrote before the decision, who knew full well what this would entail:
Mat Staver: We stand united together in defense of marriage. Make no mistake about our resolve. While there are many things we can endure, redefining marriage is so fundamental to the natural order and the common good that this is the line we must draw and one we cannot and will not cross….
I am reminded of Martin Niemoeller, a German pastor and theologian during the Nazi reign of terror, who said: “First they came for the Socialists, and I did not speak out because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out because I was not a Jew. Then they came for me, and there was no one left to speak for me.”
To paraphrase Martin Niemoeller in our own context: “First they came for the adoption ministry, but I did not speak out because I did not do adoptions. Then they came for the wedding photographer, but I did not speak out because I did not photograph weddings. Then they came for the baker, but I did not speak out because I was not a baker. Then they came for the florist, but I said nothing because I was not a florist. Then they came for me, and there was no one left to speak for me.”
This is not a call for lone believers to fall on their swords. It is a call for us to speak for each other, to stand together and to suffer together. Like Esther facing the unjust law of the Persian Empire, we must pray and then we must stiffen our spines. May God help us to remain faithful, whatever the cost.
Alan Keyes: What purports to be a movement for so-called homosexual “rights” is in fact intended to discard, once and for all, the idea of God-endowed unalienable rights, inherent in the Creator’s information of all human beings (i.e., our human nature). The transcendent authority of “the laws of nature and of nature’s God” is the source or origin from which certain natural penchants or inclinations derive their special claim of right. Without reference to it, as the authoritative first principle of unalienable right, the logic of democratic, republican self-government collapses.
This is so because the “consent of the governed,” from which governments are supposed to derive their just powers (according to the organic law of the United States), has no lawful authority but what derives from the common exercise of right that informs it.
San Francisco Archbishop Salvatore Cordileone, chairman for the USCCB Subcommittee for the Promotion and Defense of Marriage: Regardless of what happens at the end of this month, nothing the court says can change what marriage truly is and we will continue to promote and defend it.
“Let the lie come into the world, let it even triumph. But not through me” [Aleksandr Solzhenitsyn]. The simple step of a courageous individual is not to take part in the lie. We may have to suffer this lie about marriage in the law, but we must not participate in it or keep silent about it.
Robert George: Now we face the prospect of yet another Dred Scott-type decision—this time on the question of marriage. I say that, not because same-sex relationships are the moral equivalent of slavery—they are not—but because five justices seem to be signaling that they will once again legislate from the bench by imposing, without constitutional warrant, their own beliefs about the nature and proper definition of marriage on the entire country.
If that happens, the Republican Party, the Republican Congress, and a future Republican President should regard and treat the decision just as the Republican Party, the Republican Congress, and the Republican President—Abraham Lincoln—regarded and treated the Dred Scott decision. They should, in other words, treat it as an anti-constitutional and illegitimate ruling in which the judiciary has attempted to usurp the authority of the people and their elected representatives. They should refuse to treat and regard it as a binding and settled matter. They should challenge it legislatively and give the Supreme Court every opportunity to reverse itself—especially as new justices fill vacancies. And they should work to fill vacancies on federal courts at all levels with jurists who reject judicial usurpation and can be counted on to respect the scope and limits of their own constitutionally specified authority.
Robert Reilly: The homosexual movement will not succeed in the long run. Dream worlds do not last. They invariably turn into nightmares from which people eventually wake themselves. How long that takes and how much damage it incurs in the meantime will depend partly on us.
Reflecting on his experiences in Nazi Germany where he had been imprisoned, Heinrich Rommen wrote: “When one of the relativist theories is made the basis of a totalitarian state, man is stirred to free himself from the pessimistic resignation that characterizes these relativist theories and to return to his principles.” We have the means at hand to return to this country’s first principles: they are called “the Laws of Nature and of Nature’s God.” We need them now as much as did our Founders. Let us return to them forthwith – before it is too late.
Much more can be said. I am still in shock – not surprised, but still stunned, in heavy grief, and crying out to God for his vindication. Now more than ever we need real men and women disciples of Jesus Christ. The time is over for playing games, for following our trivial pursuits, for living at ease in Zion.
Now we are fully involved in a war whether we like it or not. And those who do not join in, or think they can just sit on the fence, have already declared their true hand: they are part of the other side, and are not on the Lord’s side.
Get ready for increased persecution in America and all over the West. The nearly 200 cases of this that I documented in my latest book is only the beginning. Now the going starts getting real tough. This is warfare of the most serious sort.
Ultimately it is a spiritual battle, and the SCOTUS decision comes straight out of the very pits of hell. Onward Christian soldiers. We have no more time to waste. We must pray like never before. We must work like never before. And we must get on our faces before Almighty God and repent of our damnable apathy, carelessness and indifference which made all this possible in the first place.
God have mercy on America. Or, if needed, bring on your just judgment.
http://www.renewamerica.com/columns/keyes/150615 High court’s homosexual prejudice threatens our rights Alan Keyes
As we write this article, the Supreme Court of the United States has ruled that same-sex marriage is legal throughout the USA. Most Christians who have been watching the developments in our culture—including the rapid erosion of religious liberties and the increasing persecution of Christians who have the ‘audacity’ to oppose same-sex marriage in public—should not be overly surprised by this, though we still grieve that what the Bible calls an abomination has now become effectively the law of the land in the U.S.
How do we think about this, not just as citizens of countries around the world who are debating a fundamental redefinition of marriage, but as Christians? We must face this with a biblical and historical perspective, and confront the culture with truth and love, and the unchanging standard of Scripture.
How we got here
Fifty years ago, it would have been unthinkable for homosexuality to have the public approval it now enjoys, much less that marriage would be redefined to allow for the solemnification and state recognition of these relationships. But the seeds were already being sown.
America capitulated on marriage long before the homosexual lobby wanted in. A culture with far too many marriages ending in divorce (although evangelical Christians, unlike the stereotypical accusation, have lower rates of divorce), children frequently being conceived outside of marriage, and an increasing preference for cohabitation instead of marriage showed that it lacked real conviction about marriage.
And most Christians were, quite frankly, unprepared for the organized, strategic assault on traditional morality waged by a small number of politically savvy activists. Gay people are such a small proportion of the population (most reputable estimates are around 5 percent, much less than the ten percent myth that is usually paraded as fact) that many simply did not see them as that much of a threat.
But pro-homosexual activists relied heavily on propaganda to advance their point of view. They told us the battle was between love, equality, civil rights, and immutable orientation on the one side, and discrimination, intolerance, and homophobia on the other. And homosexuality was normalized through exposure to a barrage of gay TV characters, news stories presenting gay individuals and couples in a sympathetic way and suppressing the dark side of homosexual culture, university professors who effectively brainwashed young students by abusing their authority in the classroom, and non-stop political pressure.
Coming after the Church
Now hardly a day goes by without a news story about the tolerance mongers coming after those (primarily Christians) who don’t toe the line on same-sex marriage. We’ve seen pastors disinvited from praying at government functions, adoption agencies who won’t service gay couples forced to close, people like Mozilla CEO Brendan Eich or Atlanta fire chief Kelvin Cochran hounded out of their jobs, lawsuits against Christians who have wedding-industry businesses, parents told they don’t have the right to exempt their children from classroom indoctrination, and much more.
CMI warned that gay marriage would be a big stick to beat the church with. That is, it is (or sadly, was) a line-in-the-sand issue, because gay marriage will be the first of many issues that Christians might be forced to accept. And we see this becoming more true all the time. The culture is trying to marginalize and silence those who remain faithful to Scripture on this issue, and many Christians are fearful and intimidated. Some think we should avoid the subject because they are so tired of hearing about it, and others fail to speak up for the truth because they know it will earn them scorn.
Lessons to be learned
Many professing Christians have reacted to this tidal wave of cultural change by changing along with it. Ethicist David Gushee, for instance, has become a vocal voice saying that the Christian church must be inclusive of people who engage in same-sex relationships. ‘Mainline’ liberal denominations have already capitulated en masse to the redefinition of marriage, and evangelicals who remain true to the teaching of Scripture risk being labelled as bigots.
Others have clung to reactionary, trite-sounding slogans such as “Turn or burn!” or “God created Adam and Eve, not Adam and Steve!” While it is true that people who engage in homosexual sin will face judgment, and that the male/female complementarity in marriage is part of the created order which homosexuality rebels against, these slogans do not help to advance a conversation, and they reinforce the stereotype of Christians as people who lack compassion or concern for the broader issues involved.
Rather than capitulating or relying on shallow sloganeering, Christians need to present a loving, but firm and united front in the face of this ruling. First, we express love for people in homosexual relationships. Many of them are friends, family members (even children), and neighbors, and we pray for them to find repentance and salvation in Christ. Our behavior should be so unobjectionable toward them that no reasonable person could find fault (of course, we will not always be dealing with reasonable people).
But we should firmly reject any attempt to redefine marriage, because no human institution has the authority to do so. God created marriage, and so He gets to define it. Jesus pointed out that “from the beginning of creation, ‘God made them male and female’” (Mark 10:6). We cannot offer Caesar his pinch of incense, because to do so would be to deny God in this matter.
This means that Christians may have to be willing to lose some of the privileges and exemptions that we have long enjoyed. For instance, many Christian schools are wondering if they may face losing their federal funding if they do not capitulate on gay marriage. Our response should be faithfulness even at the cost of these benefits, trusting God to more than make up for what is lost. The Christian community should also rally together to support those who face loss for the cause of Christ, particularly individuals and businesses who have made a stand, suffered persecution and loss as a result.
Christian churches, schools, and ministries should do everything in their power to protect themselves from the inevitable attack from homosexual activists. This is due diligence, even recognizing that these attempts may be ruled invalid.
Evangelical churches need to teach their people about this topic, and how to respond with the combination of biblical truth and love regarding homosexuality. Parents, most of all, should teach their children how to think biblically and logically about this issue as there is a tendency to ‘buy in’ to the gay lobby’s emotional sound bites on this issue (e.g. “It’s OK as long as gay couples love each other.”)
The authority of Scripture
Ultimately, the only way we can stand firm on the issue of marriage is to hold on to the authority of Scripture. Historically, and still today in many parts of the world, Christians have faced the confiscation of property, imprisonment, and even death for their identification with Christ. Americans have never imagined ourselves vulnerable to this sort of persecution because our country was founded on Christian principles and those principles for a long time formed the foundation of our culture. Unfortunately, that false sense of security may have helped our ideological opponents win the day.
Building morality on a house of cards
Christians still have hope that the Gospel will transform people even in the midst of a corrupt culture.
As the dissent in the case points out, redefining marriage, which has existed in essentially the same form for millennia across all cultures, is extremely presumptuous:
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.” Ante, at 11, 23. As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?1
Also, there is not much at all to keep this precedent from further redefinitions of marriage:
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?…
…when asked about a plural marriage union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.2
Christ is not defeated!
Finally, Christians should not take a defeatist attitude toward this issue, but recognize that Christ has already achieved victory over sin and death and the forces of darkness. In the long term, it will not be supporters of same-sex marriage who are on ‘the right side of history’ (as they commonly assert), but those who have trusted in Christ for the forgiveness of sins, and who remain faithful to Him in times of trial like this. God did not abandon the faithful Israelites who went into exile, and He has promised not to abandon us either (Matthew 28:20; Hebrews 13:5). God is still in control, and He still provides for His people. We must trust Him in the days to come.
When Augustine wrote The City of God, he was addressing Christians who equated the Roman Empire with Christianity, and were shaken with the fall of the Empire. He gave them the valuable reminder that the true citizenship of every Christian is not in an earthly country, and that we wait for the ‘city of God’, that is, the New Jerusalem.
God’s agenda has always been the spread of the Gospel, and that has happened in the face of worse persecution than anyone in America has faced. Even though we are rightly distressed that the government has officially embraced an unbiblical stance on this issue, Christians still have hope that the Gospel will transform people even in the midst of a corrupt culture.
I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it 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. 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. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.
The Constitution places some constraints on self-rule— constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,” denying “Full Faith and Credit” to the “public Acts” of other States, prohibiting the free exercise of religion, abridging the freedom of speech, infringing the right to keep and bear arms, authorizing unreasonable searches and seizures, and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?
Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”
“[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. 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. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect. That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ” One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.” The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.” Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And 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.
But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.” (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.
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Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
There are certainly other voices of reason out there but there is one voice that silences all others:
Why do the nations rage and the peoples plot in vain? The kings of the earth set themselves, and the rulers take counsel together, against the Lord and against his Anointed, saying, “Let us burst their bonds apart and cast away their cords from us.” He who sits in the heavens laughs; the Lord holds them in derision. Then he will speak to them in his wrath, and terrify them in his fury, saying, “As for me, I have set my King on Zion, my holy hill.” I will tell of the decree: The Lord said to me, “You are my Son; today I have begotten you. Ask of me, and I will make the nations your heritage, and the ends of the earth your possession. You shall break them with a rod of iron and dash them in pieces like a potter’s vessel.” Now therefore, O kings, be wise; be warned, O rulers of the earth. Serve the Lord with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and you perish in the way, for his wrath is quickly kindled. Blessed are all who take refuge in him. (Psalm 2:1-12 ESV)