REALity Volume XXXIV Issue No. 9 August 2015

On June 26, 2015 the US Supreme Court ruled in a 5-4 decision in Obergefell vs. Hodges that same-sex marriage is a constitutional right which must be allowed in all 50 US states, based on the equality provisions of the Constitution.

The majority five judges in this case were well-known to be ideological liberals, and were willing to throw legal precedent and the Constitution away in order to provide a constitutional right to same-sex marriage. As stated by Chief Justice John Roberts in his stinging dissent:

The majority’s decision is an act of will, not legal judgment. The right . . . has no basis in the Constitution or this Court’s precedent . . . As a result, the Court invalidates the marriage laws of more than half the states . . . Just who do we think we are? . . . do not celebrate the Constitution. It

[this decision] had nothing to do with it.

Mr. Justice Antonin Scalia, in his dissenting opinion, aptly stated that this opinion lacked “even a thin veneer of law”. He called the style “pretentious” and the content “egotistic”. He also said he was astounded by the “hubris reflected in today’s judicial Putsch.” He called the judges unrepresentative – not a single evangelical Christian or “even a Protestant of any denomination”.

The majority opinion, written by Mr. Justice Anthony Kennedy, read more like a pop song than a Constitutional analysis.

He wrote that gay marriage allows two homosexuals to “find a life they could not find alone”. Kennedy then went on to bemoan the fact that traditional marriage condemns gay people to “loneliness”. The US Constitution was not written to protect people from being lonely. Loneliness is not a legal issue.

Judge Kennedy also extended the interpretation of “liberty” to mean a right to government entitlement to marriage. The word “liberty” previously meant protection from restraints and government interference. Precedent gave way to a judge’s obsession to find a politically correct right for a politically correct group of people.

History will not regard Judge Kennedy very highly.

It was not helpful that two of the judges, Ruth Bader Ginsberg and Elena Kagan, were both publicly acknowledged strong proponents of same-sex marriage. They publicly married same-sex couples before the Supreme Court hearing, and, in the case of Judge Kagan, she was a well-known LGBT activist during her tenure as Dean of Harvard Law School. During that time, she introduced LGBT “rights” courses, including transsexualism in the law curriculum, and hired well-known homosexual/lesbian professors to teach them. She also took an active part in functions and forums of radical LGBT groups at the university.

The federal law on impartiality by judges provides that:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

There is no legal mechanism, however, whereby judges can be required to be removed from hearing a case. Consequently, both Judges Ginsberg and Kagan remained on the panel of judges hearing the same-sex marriage case.

This failure to recuse themselves (withdraw from a case on the grounds of lack of impartiality), however, calls into question the validity of the decision.

This is the third decision that the US Supreme Court has made in its history which has led to civil unrest and division within the country. Significantly, all these damaging decisions were based on political considerations, not legal ones. They were as follows:

1. 1857 – Dred Scott CaseThe US Supreme Court held that the black slave was the property of the slave owner and did not have any legal rights. The reason for this conclusion was that the court believed the agricultural economy of the American south, which relied on the work of slaves, had to be protected.

2. 1973 – R v. WadeThe US Supreme Court held that a woman had a right to abortion based on her (hereunto never before realized) “right to privacy”.
This conclusion, according to two members of that court, Chief Justice Harry Blackmun and Madam Justice Ruth Bader Ginsberg, was based on the necessity to decrease the birth rate because of overpopulation.

These three Supreme Court decisions have grave, long-range ramifications for the unity of the country. A bloody civil war followed the Dred Scott case, and the decisions on abortion and same-sex marriage give rise to a civil war of another nature. These include civil disobedience, and intolerance towards religious liberty. This will result in state imposed punishment for those refusing to condone abortion and same-sex marriages. A civil war could not be otherwise.

Instead of a legislature making such grave decisions, a few hand-picked, appointed, unaccountable judges made these controversial changes in society. As a result, these decisions intensify and exacerbate the divisions already present within the country.

This decision, by five non-elected judges on the U.S. Supreme Court to legalize same-sex marriage, was also an exercise in raw political power to arrogantly wipe out the views of 50 million American voters in 14 states who had voted with overwhelming majorities to ban same-sex marriages. The judges overruled the voters by creating a non-existent “right” (previously unknown) to homosexual marriage. This newly discovered “right” will guarantee continued controversy over marriage for years to come.

Same-Sex Marriage in Canada Differs from that of the United States

Although both the US and Canada now permit same-sex marriage, the effects are different.

In the US, the Supreme Court pronounced that same-sex marriage was a constitutional right.

In Canada, however, the same-sex law was passed by Parliament. This means that the law can be amended or repealed at a future date by Parliament. A Constitutional right, however, can only be changed by way of a constitutional amendment – a much more difficult and rigorous process.

The Canadian legislation legalizing same-sex marriage also specifically protects religious rights i.e. protects faith groups from being obliged to perform same-sex marriages if such “marriages” are not in accordance with their religious beliefs. This provision, however, does not protect church properties from legal challenges by same-sex couples. For example, a Catholic Church hall owned by the Knights of Columbus was fined for discrimination against a lesbian couple for refusing to let them hold their wedding reception on the premises. Marriage Commissioners are not protected, nor are those businesses associated with weddings i.e. florists, bakers, limousine drivers, etc.

These same difficulties will now be faced by individuals of faith in the US. Their problem is exacerbated by the fact that same-sex marriage is now a constitutional right, which means that it is now an entrenched right which will be very difficult to change.

Religious Liberty in the Cross-fire

Religious liberty is about more than just a religious “belief” but also includes religious practices in the public square. It is alarming that the five US judges proclaiming the right to same-sex marriage did not speak of the right of people to exercise their religious rights, but only to the right to believe, and nothing more.

This decision will have numerous consequences for organized religion. Even though the majority tried to reassure the public that religions and those who adhere to religious doctrines may continue to advocate their beliefs, this is not reassuring, however, for the future of religious liberty.

As noted by Chief Justice Roberts, “The First Amendment guarantees . . . the freedom to exercise religion. Ominously, that is not a word the majority uses”.

Mr. Justice Clarence Thomas, who dissented, also wrote that the decision “holds potentially ruinous consequences for religious liberty”.

It is now likely that the tax exempt status may be removed from child welfare organizations, private schools, religious universities, relief providers, abstinence groups, military religious contractors, adoption agencies, Christian hospitals, and political non-profit organizations. Further, if they receive government grants, the government may require compliance with the same-sex decision in order for the grants to be continued.

Those who publicly speak out against same-sex marriage will also undoubtedly now be labelled bigots and treated as such by governments, employers and the media, who will demand a judicial remedy for such civil disobedience.

This decision will inevitably lead to lasting bitter wounds, according to Justice Samuel Alito.

Already, activists are preparing the groundwork to remove the tax-exempt status of faith based groups. This reality arose during the oral arguments in the case when President Obama`s lawyer, U.S. Solicitor General, Donald Verrilli, affirmed that Christian schools and other non-profit and charitable groups that refuse to go along with same-sex marriage, might lose their tax-exempt status.

Democratic Senator, Tammy Baldwin (Wisconsin), a lesbian, has already stated that although institutions of faith may observe deeply held religious beliefs, nevertheless, there are clear limits to this beyond the four walls of the church. In effect, she alludes to initiatives to provide for the loss of tax-exempt status for non-profit institutions and businesses which do not accept same-sex marriage. It is obvious that proponents of same-sex marriage are not really interested in compromise or peaceful co-existence. They are, at heart, essentially totalitarian, and want complete obeisance and affirmation of same-sex marriage.

Conservative Reaction to the Same-sex Marriage Decision

Conservative leaders are now rushing to build a fire-wall around religious freedom by bringing in legislation to protect it. For example, Representative Raul Labrador (Idaho) and Senator, Mike Lee (Utah) are planning to bring in “The First Amendment [freedom of religion] Defence Act” to protect religious freedom. This bill is not only to protect Evangelicals, but also Orthodox Jews and Catholics, who are equally vulnerable to attack. In Texas, Attorney General Ken Paxton is taking swift steps to shield his state from the federal government’s retribution. In a special legal directive, he gave public officials in Texas the right to opt out of performing same-sex marriages – – and, in a separate statement, advised them that numerous lawyers were ready to provide representation, if necessary. The struggle to protect religious liberties has now begun.

The decision by the U.S. Supreme Court will also have a fundamental effect on its ability to uphold the rule of law. If a bare majority of judges can invent a new right to change the definition of marriage, which has been upheld for millennia by all faiths and cultures, and impose it on the rest of the country, there is no real limit to what future majorities in the Court will be able to do. The court’s decision on same-sex marriage has made this a painful fact.

Finally, if President Obama, the Democratic Party, and the five liberal judges on the U.S. Supreme Court think that they have resolved the issue of same-sex marriage, they are mistaken. There are dark days ahead for religious liberties, but this battle is not over: it has just begun.