by Garrett Fahy
In the days leading up to the Supreme Court’s decision on same sex marriage, conservative religious schools across the country warned that they could lose their tax exempt status if the Supreme Court found a constitutional right to same sex marriage. One Texas pastor warned that a ruling in favor of same sex marriage would require Christians to engage in civil disobedience. Another Texas pastor went further, and said he would be willing to be burned to death to oppose gay marriage.
In a more constructive move, Texas Governor Greg Abbott signed into law the Pastor Protection Act, which ensures that no pastor, priest, rabbi or other religious leader in Texas can be forced to perform or recognize a marriage that violates religious beliefs.
The concerns underlying these efforts were legitimized on June 26, 2015 when the Supreme Court, by a 5-4 vote, found that the Due Process and Equal Protection clauses of the 14th Amendment require a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.
With Justice Kennedy’s majority opinion – which assumed the “immutable nature” of homosexuality (p. 4), decided that “sexual orientation is both a normal expression of human sexuality and immutable” (p. 8) (apparently no one told Bruce/Caitlin Jenner!) and confirmed the Court’s right to invent and force upon the nation “new dimensions of freedom” when they “become apparent to new generations,” (p. 7) — the Supreme Court ensured that the debate over gay marriage will rage for the next generation and provided the gay rights mafia (Bill Maher’s term) with ammo for the next round of lawsuits against those who dissent.
How did this happen? In short, Justice Kennedy decided, on behalf of over 300 million Americans, how the Constitution defines marriage. Seeking to couch his judicial arrogance in the cloak of judicial authorization, he wrote,
“The 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, and so they entrusted to future generations (Justice Kennedy) a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight (to Justice Kennedy) reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty (as understood by Justice Kennedy) must be addressed.” (p. 11) In other words, forget what the Framers, Founders or post-Civil War drafters intended their words to mean, when Justice Kennedy thinks there’s a right, he’s going to invent one.
Justice Kennedy noted that many who oppose same sex marriage do so based on “decent and honorable religious or philosophical premises,” and further noted that, “neither they nor their beliefs are disparaged here.” (p. 19) Really? On the very next page, he dismissed those “honorable” premises by writing that, “new insights and societal understandings [to Justice Kennedy] can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” (p. 20) In other words, those “decent and honorable religious or philosophical premises” have produced “unjustified inequality,” which he must remedy.
The final insult to the millions of Americans whose faith informs their opposition to same sex marriage came when Justice Kennedy noted that under the First Amendment, “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.” (p. 27) (emphasis added) Translation: you can speak your opposition to same sex marriage, but you cannot live it out.
For those who think the Court’s decision has settled the issue, think again. The majority opinion, so condescending in its moral superiority and bereft of any constitutional support, noted that “the States are now divided on the issue of same-sex marriage.” (p. 10) Justice Kennedy’s opinion has not changed this. A survey conducted after the ruling by the Barna Group found that evangelical Christians – 25% of Americans – opposed the ruling, 94% to 6%, and 66% of Christians overall – 71% of Americans – opposed it.
In the wake of the decision, opponents of judicial tyranny responded. Texas announced its intention to fund the defense of state employees who may be sued if they refuse to perform gay weddings. Kansas’ governor, Sam Brownback, issued an executive order that prohibits the Kansas government from taking any action against members of the clergy or religious organizations that deny services to couples based on religious beliefs. Other southern states have considered similar strategies.
Whether these efforts will prevail is anyone’s guess. Based on Indiana’s recent and failed attempt to protect religious liberty against the gay rights mafia, which ended when corporate agitators threatened to leave the state, the success of these initiatives is unclear.
Regrettably, the Court’s opinion virtually ensures future litigation because individuals, organizations and states must sue under the First Amendment to guarantee their right to live out their religious beliefs in their churches, non-profits and businesses. And who can blame them? Those whose beliefs are informed by thousands of years of history and sacred texts will surely not abandon them because of one man’s “discovery” of a conception of liberty and due process found nowhere in the Constitution.
And we have already seen a preview of coming attractions. In Oregon, a couple was recently ordered to pay a lesbian $135,000 in “emotional distress damages” for refusing to bake her a wedding cake. This execrable decision, handed down by an unelected bureaucrat, will only encourage other enemies of the First Amendment, and will require the Supreme Court to weigh in on these issues.
Finally, and predictably, the call to reduce or eliminate the tax exempt status of churches and other non-profits has begun. But this cruel and shortsighted movement will ultimately fail because of its inability to answer the following questions: after the government revokes the tax exempt status of churches, adoption agencies, and schools run by people of faith, who will replace them and ensure society’s most needy are helped? Who will love their neighbor as themselves? Justice Kennedy and the gay rights mafia? Not likely.
The marriage fight is simply the most visible skirmish in the larger culture war over the role of religion in public life. Given the number of self-identified religious conservatives, of many faiths, and the awareness and hostility the Supreme Court’s ruling has engendered, the Court may have awakened a sleeping bear. If the faithful heed the obvious warnings, and demand their voices not be silenced, then Justice Kennedy will have done the country a great service. For the sake of the First Amendment, let’s pray that’s true.