Supreme Court Preview

The Supreme Court’s decision in Obergefell v. Hodges–redefining “marriage” as a union between two people, regardless of gender–is one more step in the natural progression of our culture. We’ve been on the decline for a while now. But what was so unnerving about the Obergefell decision was the majority’s willingness to abandon any pretense of constitutional analysis in favor of reaching the end they desired and saw as inevitable. What is more, the majority does not even apologize  for their failure to provide a single, cogent reason for their decision. Perhaps they didn’t care. Or, perhaps, they have become so blinded to the Constitution as a result of the incessant call for “equality” and “justice.” As Chief Justice Roberts so accurately stated:

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.

Whatever the majority’s motivation for issuing the “opinion” they did, it is now the settled law of our land that every state must recognize a same-sex union as a “marriage.” No more debate; no more votes. Maybe. We have no choice but to accept the decision for what it is, but we do not need to accept–indeed, cannot accept–the flawed underlying premises. Justice Kennedy’s attempt to make “liberty” a license to do anything collapses under the weight he asks it to bear. Justice Kennedy’s liberty knows no bounds, as he made clear decades ago in the “sweet mystery of life” passage in Casey:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

Planned Parenthood v. Casey, 505 U.S. 833 (1992). With this foundation, liberty can mean anything you want. And to the unthinking observer, arguing against such a lofty concept as liberty seems indefensible.

But as Justice Thomas noted in dissent, the original concept of “liberty” was a negative one: the freedom from government intervention. Once “liberty” becomes the basis for positive rights (or governmental benefits and privileges), it risks becoming a concept so broad that it is rendered meaningless. Justice Scalia had criticized Justice Kennedy’s inchoate use of “liberty” in the 2003 decision, Lawrence v. Texas:

 I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based onone’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.

A mere twelve years later, Justice Kennedy is at it again, exalting liberty as one’s right “to define and express their identity.” From that unprincipled starting point, Kennedy goes on to overlook two millennia of precedent for traditional marriage and to find four new principles that, in the majority’s mind, justifies the expansion of “marriage” to same-sex unions.

I’ll spare you the details of Justice Kennedy’s explanation, which reads like a high-school sophomore’s extemporaneous essay. What I want to point you to is Chief Justice Roberts’ dissent. Although all four dissents highlight different errors in the majority’s reasoning (yes, it pains me to dignify it that way), Chief Justice Roberts offers a chilling prediction for the future of believers in America (emphasis mine):

Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; 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. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.

Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage.  Ante, at 27. 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. See Tr. of Oral Arg. on Question 1, at 36–38. 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.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage.  Ante, at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples.  Ante, at 19.  The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors.  Ante, at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post, at 6–7 (Alito, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

Time will tell just how correct Chief Justice Roberts is in his prediction. But it is only a matter of time. The persecution of those who do not kowtow to the new social order can expect to face some consequences.

But that does not mean that we are to shut our doors and hide behind some protective barrier, assuming we could even find one. It is not time to be a huddled remnant. It is, however, time to come together as a community of believers, to deepen our commitment to the faith and its moral order, and to resolve here and now to be saints. This is the time we have been given and we should all be hearing the call to use the gifts God gave us to help transform the society in which we live.

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