Defiance, however, means more than merely ensuring that your church or your Christian school doesn’t change its policies. It means more than still donating to your church even if the day comes when you can’t deduct the contribution. It means a willingness to lose your job, your prosperity, and the respect of your peers. It means saying no every time you are compelled to applaud or participate in the sexual revolution. It means standing beside fellow Christians who face persecution or job loss — not just shaking your head and thinking, “There, but for the grace of God . . . ” It means having the courage to proclaim an opposing message — even during mandatory diversity training, even when you fear you might lose your job, and even when you’re terrified about making your mortgage payment. And through it all, it means being kind to your enemies — blessing those who persecute you.
But being kind to one’s enemies does not mean surrendering to them. I’ll never forget the first time I feared for my job because of my faith. In the midst of my first major religious liberty case — defending a small, rural church against a plainly unconstitutional government action — a senior partner at my firm called and demanded that I drop the lawsuit. He believed the firm’s reputation would suffer for representing an Evangelical church. As a second-year associate, I had no power or standing to defy his order, so — after discussing it with my wife and pondering my own mortgage payment — I summoned up my courage, walked into the managing partner’s office, and simply and respectfully said, “I’m not withdrawing from the case. I understand if you feel like you have to fire me, but I can’t abandon the church.” To my immense relief, I kept my job — and the case, which ended up launching my constitutional career.
I tell that story not to proclaim myself as a model for others — I have more than my share of failings, and that small act of defiance hardly merits mention — but simply to say that this is an old problem. Even in the U.S., Christians who’ve not yet faced these tests likely will, and soon. When they do, it is the church’s responsibility to ensure that they not do so alone. As the church stands, it must remember that our present troubles are meaningless compared to the deadly challenges facing the church in the Middle East. And, always, we must remember who controls our destiny.
Category Archives: The Supremes
In the matter of the so-called Affordable Care Act, the Supreme Court ruled that the law must not say what it in fact does say because it would be better if it were not to say what it says and were to say something else instead. In the matter of same-sex marriage, the Supreme Court rules that the law must say what it does not say because it would be better if it were to say what it does not say instead of what it says. Which is to say, the Supreme Court has firmly established that it does not matter what the law says or does not say — what matters is what they want.
That texts may be imaginatively interpreted to any end is not news — “The devil can cite Scripture for his purpose,” as William Shakespeare observed in The Merchant of Venice. The legendary constitutional scholar Barack Obama failed to notice, until the day before yesterday, that the Constitution mandates the legalization of homosexual marriage from sea to shining sea, but, to be fair, that is an easy provision to overlook, even for a mind as keen as Barack Obama’s, since the Constitution does not say one word about marriage, much less about the state-level codification of homosexual couplings being a fundamental federal right.
“Jiggery-pokery” is putting it generously.
But scriptural interpretation is a funny business. I grew up on the edges of some wildly entertaining fundamentalist circles in West Texas, and I very much enjoyed hearing mail-order theologians explain how, sometime between turning water into wine at that famous wedding and pouring out a round for the guys at the Last Supper, Jesus very subtly declared alcohol verboten. Put any given text on the rack, and you can prove Ronald Coase’s dictum: If you torture the evidence enough, it will confess to anything.
Constitutional torture is an art, and Chief Justice John Roberts has emerged as its Andy Warhol: an impresario who will put his name on anything.
‘But this Court is not a legislature.” Chief Justice John Roberts actually published that sentence in his same-sex marriage dissent on Friday . . . a mere 24 hours after his maestro’s performance in the Supreme Court’s legislative rewrite of the Affordable Care Act — formerly known as “Obamacare,” but now etched in memory as “SCOTUScare,” thanks to Justice Antonin Scalia’s withering dissent.
Roberts’s denial that the Court legislates is astonishing in its cynicism: In saving SCOTUScare, the chief justice not only usurped Congress’s law-writing role with gusto; he claimed the powers, first, to divine legislative purpose from its contradictory expression in legislative language, and, then, to manufacture legislative ambiguity as the pretext for twisting the language to serve the contrived purpose.
It takes a Clintonian quantum of cheek to pull that off one day and, on the next, to inveigh against the very thought of it.
Already, an ocean of ink has been spilled analyzing, lauding, and bemoaning the Supreme Court’s work this week: a second life line tossed to SCOTUScare in just three years; the location of a heretofore unknown constitutional right to same-sex marriage almost a century-and-a-half after the adoption of the Fourteenth Amendment; and the refashioning of Congress’s Fair Housing Act to embrace legal academe’s loopy “disparate impact” theory of inducing discrimination.
Yet, for all the non-stop commentary, one detail goes nearly unmentioned — the omission that best explains this week’s Fundamental Transformation trifecta.
Did you notice that there was not an iota of speculation about how the four Progressive justices would vote?
Yesterday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public relations campaign.
In a purely pragmatic sense, it’s difficult not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.
In no particular order, it:
1. Successfully and fundamentally transformed the definition of “marriage,” and did so in a way that portrayed efforts to preserve traditional marriage as the novelty, rather than the millennia-old status quo.
2. Successfully convinced a critical mass of the public that there is only one side in this debate, despite the fact that the side claiming the monopoly had only existed in any meaningful form for perhaps 20 years.
3. Successfully convinced a critical mass of the public that race and sexual orientation are directly analogous.
4. Successfully convinced a critical mass of the public (and jurists) that there is no possible argument against gay marriage—to the point where federal judges found that not permitting same-sex marriage is definitionally irrational, and had prominent left-leaning outlets calling yesterday’s dissents simply “crazy.”
5. Successfully branded opponents as simple “bigots” for daring to hold a different view on a live political issue, going so far as to take punitive action against those who did not adopt the “correct” viewpoint.
6. Successfully portrayed the battle as, literally, love versus hate.
7. Successfully accomplished all of the above in about a decade.
My God, the magnitude of it is staggering.
This week, we have twice seen Supreme Court justices violating their judicial oaths. Yesterday, the justices rewrote Obamacare, yet again, in order to force this failed law on the American people. Today, the Court doubled down with a 5–4 opinion that undermines not just the definition of marriage, but the very foundations of our representative form of government.
Both decisions were judicial activism, plain and simple. Both were lawless.
As Justice Scalia put it regarding Obamacare, “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ . . . We should start calling this law SCOTUSCare.” And as he observed regarding marriage, “Today’s decree says that . . . the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”
Sadly, the political reaction from the leaders of my party is all too predictable. They will pretend to be incensed, and then plan to do absolutely nothing.
That is unacceptable. On the substantive front, I have already introduced a constitutional amendment to preserve the authority of elected state legislatures to define marriage as the union of one man and one woman, and also legislation stripping the federal courts of jurisdiction over legal assaults on marriage. And the 2016 election has now been transformed into a referendum on Obamacare; in 2017, I believe, a Republican president will sign legislation finally repealing that disastrous law.
But there is a broader problem: The Court’s brazen action undermines its very legitimacy. As Justice Scalia powerfully explained,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall. . . . 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.
This must stop. Liberty is in the balance.
The day after declaring Obamacare magically rewritten and that the lawsuits against discrimination in housing require no proof of actual discrimination, the Supreme Court found a unicorn in the 14th Amendment.
By a vote of 5-4, the Supreme Court ruled that the right to privacy under that aforementioned 14th Amendment (adopted in 1868, when every state in America criminalized sodomy) requires that every state in America grant marriage licenses to men who want to marry men and women who want to marry women, and that every state recognize such licenses from every other state.
By this point, nobody should be surprised that the Supreme Court sees new rights in its Cheerios. As our Supreme Rulers, the Supreme Court can declare what they want to declare, since rule of law died long ago at the hands of leftist deconstruction of language. But this decision is particularly galling to those who believe words have meaning and that government is not God. The Court rejects both of those claims. Words have no meaning; they are merely tools to be used in implementation of the utopian agenda of the far-left. Government is God, a dignity-conferring institution capable of making moral that which religion teaches is sinful, logic teaches is worthless, and societal experience teaches is societally counterproductive.
Naturally, Justice Anthony Kennedy, who has made it his lifelong work to read same-sex rights into the Constitution (this, after all is the man who once wrote, based wholly on the authority of the voices in his head, that the Constitution mandates “respect” for sodomy), delivered the majority opinion.
Kennedy opens by essentially paraphrasing himself in the pro-abortion case Planned Parenthood v. Casey (1989), in which he established one of his many preferred fantasy rights: “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.” This time, he simply says that people have a right to “within a lawful realm, define and express their identity.” Of course, the Court defines that “lawful realm” at its whim; otherwise Charles Manson would simply have been expressing his Constitutional rights. Same-sex marriage falls within that lawful realm, says Kennedy, although he fails to explain how the state not granting people a piece of paper equates to preventing them from expressing their identity. Presumably the states will now be required to give Rachel Dolezal a race-change certificate.
On this slender thread does the promise of religious liberty hang. Justice Anthony Kennedy, in his majority opinion in Obergefell that declares same-sex marriage a constitutional right, barely mentions the means by which most Americans conduct their weddings — houses of worship. Only on page 27 does Kennedy get around to addressing the connection between church and state, and the assurances in this paragraph are less than compelling, to say the least:
Finally, 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 aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
Uh …. sure, you can still advocate for traditional marriage. You betcha. Where have we heard these protestations of modesty before?
Note here that Kennedy only mentions that houses of worship and those who attend them can still “advocate” against condoning same-sex marriage (SSM). This ignores the long-standing partnership between churches/synagogues/mosques and the government in officiating legally recognized marriage ceremonies. This decision now makes marriage for those same-sex couples a constitutional right, and that will eventually impact those partners for government who officiate such ceremonies.
It won’t be long before lawsuits appear to force churches into performing same-sex weddings, which then becomes a RFRA (Religious Freedom Restoration Act) test against state interests. That’s not going to be a slam dunk for the churches, either — not by a long shot. The state interest in enforcing constitutional rights is presumed to be strong, plus Kennedy’s opinion lists a number of ancillary state interests that makes SSM an Equal Protection Clause issue:
The nature of injustice is that we may not always see it in our own times. … Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.
And pay particular attention to this passage:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
Will a court, reading this holding, decide that the harm of this “exclusion” and the denial of a constitutional right by an agent of the state in performing weddings override the First Amendment right of free exercise of religion? Some may not, but don’t bet on that as a consistent outcome. Furthermore, the legal challenges that will occur will punish these churches, especially smaller congregationalist entities without significant resources. The process will be the punishment — although I’d bet that the first target will be the Catholic Church, which at least has resources to fight it.
I’d also note that Kennedy, who brought up the topic, could have written explicitly that houses of worship and individuals have a First Amendment right not to participate in these ceremonies. That issue has been raised on a number of occasions in the courts. The absence of any such language sends a very disturbing message on religious freedom, in this and many other contexts.
Next up–polygamy and child marriage. Where will that leave the churches and religious educational institutions. You know it won’t stop with this.
Scalia, as is his wont, issued a more scathing concurrence to Roberts, excoriating the “mummeries” of the majority:
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.13 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 . . . . ”14 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.”15 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.”16 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.17
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.
Note what Scalia says about this being a threat to our democracy. He’s not talking about same-sex marriage; in fact, Scalia praises the debate over the definition of marriage as “American democracy at its best.” What Scalia decries is the court’s move to make itself the arbiter of every social and legal issue, whether or not it falls under the federal government’s purview, by abusing the Equal Protection Clause of the 14th Amendment, among other devices. It’s legislative power without any check or balance, and goes far beyond the boundaries of what the Constitution imagined as a role for the court, or even what precedent had established until the New Deal era.
All of this was true in Lawrence as well. This is just the fruit of that tree finally ripening, and it won’t be the last of it, either.
First, many compare man-woman marriage laws to bans on interracial marriage, but whereas anti-miscegenation laws separated the races, marriage unites the genders. Laws against interracial marriages are historical anomalies, but the requirement of a man and woman is the universal characteristic of marriage across time and culture. Far from discrimination, the union of man and woman is the very definition of what marriage is.
Second, same-sex marriage advocates argue that the children of same-sex couples are disadvantaged if those couples cannot marry, yet the same advocates argue there’s no difference in child outcomes for same-sex couples. Both cannot simultaneously be true. Are the children of same-sex couples disadvantaged or are there no differences? Katy Faust, who was raised by her mother and lesbian partner, believes there are differences, but not because her mother could not legally marry her partner. Once a supporter of same-sex marriage, now that she’s a parent herself, she feels differently: “I see how important the role of [my children’s] father is and how irreplaceable I am as their mother. We play complementary roles in their lives, and neither of us is disposable. In fact, we are both critical. It’s almost as if Mother Nature got this whole reproduction thing exactly right.”
Third, to prove a constitutional deprivation, same-sex couples argue that the right to marry a member of the opposite sex is impossible and meaningless, but this ignores the tens of thousands of LGBT people in traditional marriages. Recent studies show that 51 percent of bisexual adults with children and 18 percent of gays and lesbians with children choose man-woman marriages. Same-sex marriage advocates stigmatize such relationships as unnatural and dangerous, but powerful examples are proving otherwise.
They did it again.
The Supreme Court of the United States effectively rewrote the text of Obamacare to save the legislation.
By a 6-3 majority, the Court upheld the Fourth Circuit’s decision in King v. Burwell and decided that federal subsidies were available on state Obamacare exchanges, even though the text of the so-called Affordable Care Act said that such subsidies were only available on “State” exchanges.
The majority acknowledged that the word “State” was, at best, “ambiguous.” And it rejected the idea that an executive agency, in this case the Internal Revenue Service, could decide the meaning of that term.
Rewriting the law is evidently meant for the courts, not the administration–or Congress.
The majority–led, again, by Chief Justice John Roberts, who infamously interpreted a “penalty” as a tax to uphold Obamacare’s constitutionality in 2012–held that the “context” of the word “State” mattered more than the “most natural reading.”
And the context was that Obamacare had to be saved from itself. After all, Congress could not have meant to pass a bad, self-defeating policy, could it?
The dissent, by Justice Antonin Scalia, was blistering.
“Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,’” he wrote.
“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
If a law was badly formulated, that was not the Court’s problem, he argued. It was up to Congress to rescue the subsidies for Obamacare, not the Justices. And if people did not like it, tough: that was why the Justices were meant to serve life terms. They were meant to be above politics.
Instead, Scalia noted, the Court had adopted a particular political bent.
We should start calling this law SCOTUScare.
Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years….And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.