Sincerely Held Religious Belief

[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.

—Justice Neil Gorsuch

As if I didn’t write a long enough post on Monday about the Masterpiece Cakeshop ruling, I thought I’d add some more.

On Monday we dealt mostly with Kennedy’s majority opinion. But there were actually four concurring opinions: Kennedy’s (joined by all but Ginsburg and Sotomayor), Kagan (joined by Breyer), Gorsuch (joined by Alito), and Thomas (joined by Gorsuch). Plus, of course, there was the dissenting opinion.

Justices ruling on Masterpiece Cakeshop v. Colorado Civil Rights Commission,
image from SCOTUSblog

There’s something of an argument going on between Justice Kagan and Justice Gorsuch. The SCOTUS world isn’t like much of anything else we have. These two differing people don’t sit in a room and discuss or debate one another. They ask different questions during oral arguments, which reveals something of what they’re thinking. But it isn’t until the written opinions that you see them challenging the opinions of others.

Justice Kagan agrees that the Colorado Civil Rights Commission was wrong in their anti-religious approach to the baker. But their tone, and approach, is pretty much all she finds wrong.

There’s a comparison in this case with the Jack case—a man who requested a cake with an anti-same-sex marriage message written on it, including a Bible verse, and was turned away by three bakers, in which case the CCRC ruled that the bakers did not have to create a cake with a message against their beliefs. Kagan says the difference is that they would not have made such a cake for any customer. But she claims Phillips, the owner of Masterpiece Cakeshop, does make wedding cakes for anyone but same-sex customers.

Justice Kagan writes,

The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.

There’s a long footnote comment at that point (I’ve left out the citations):

image from Amazon.com

JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrating same-sex marriage.” But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.

Let me clarify here, to help out Justice Kagan. A marriage—and the ceremony and celebration surrounding it, called a wedding—is a particular thing. It has been that particular thing for thousands of years. The particular thing that is defined as marriage is a contract between a man and a woman indicating that their union is permanent, includes the human reproductive behavior that can lead to offspring, and in most cultures is exclusive. They make the contract before the community—by way of church and law most usually—thereby allowing the community to expect from them the social benefits that marriage provides.

A ruling by five justices, legalizing same-sex marriage by fiat, does not change the definition of actual marriage; it cannot. The power to do so was never granted to those judges by the people, nor by their law, the Constitution. Nor could a majority of people voting to make it so among a particular people change the definition of what marriage actually is.

Add to that the belief that the original definition of marriage was ordained by God, and to the believer the very attempt to change it becomes immoral.

As Justice Thomas says in his concurring opinion:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

To clarify further, it is not homophobic, bigoted, or otherwise evil to believe in the real meaning of marriage. There is nothing inherently anti-homosexual about that. Homosexuals have always been allowed to marry a person of the opposite sex, who is not married to someone else, who is not a close relative—just like heterosexuals. It’s just that they are now expecting all cultures the world over to throw out real marriage and redefine it as something akin to “in a current sexual relationship with a person of my choosing.” And then they choose someone to whom they cannot, by definition, marry.

For someone who made a covenant to a spouse and is living that out decade after decade, to be told my covenant is now transformed into nothing more than an announcement of who I’m currently choosing to hook up with—that is utterly disrespectful. Yet you’re not getting gay-hate parades. You’re not getting gay persecutions. You’re getting quiet business owners who simply want to go about their businesses while living their religions—and they’re being persecuted and prosecuted for it.

In the end, we know the meek will inherit the earth. In the meantime, if we’re truth seekers, we should seek justice for not just one baker, but for all the other marriage-honoring people who are being persecuted.

So, back to this case. Justice Gorsuch is correct: a “cake celebrating same-sex marriage” is not the same as a “wedding cake.” They have the same ingredients, but not the same intent.

The same-sex couple would have been free to purchase a generic wedding cake, already produced by the baker (or, rather, whatever was available on the day they wanted it), and they could take it and use it for whatever purpose they chose, without ever burdening the baker with knowledge or responsibility for how the confection would be used.

But that is not what they asked. They asked for a custom designed and produced cake for their same-sex “wedding” celebration. Phillips told them he does not design and create cakes for such an event. He was asked by the mother of one of the couple, and he would not sell such a service to her either, even though she was heterosexual. It wasn’t about the sexual orientation of the customers—whom he was willing to serve with any of his other products. It was about his unwillingness to use his God-given talents to celebrate an event that, in his view, is not a real wedding, and further is offensive to God.

Kagan’s view can only be correct if a same-sex “marriage” is self-evidently exactly equal to an actual marriage. At the time of the dispute, not even the state of Colorado saw it that way.

During the oral arguments during Obergefell, Justice Kennedy was fully aware of the danger to religious people, who would not change their beliefs simply because a ruling made a legal path open to a certain group of people. And he seemed to at least give lip service to the importance of protecting religious liberty.

And to be fair, the Court has ruled unanimously several times in recent years to protect religious liberty. It’s just that there’s always this rather arbitrary “unless the government has a compelling interest” threat hanging overhead. In this case, fortunately, we still have 7 of the 9 justices willing to recognize the need to support religious freedom, although the reasons of at least 3 of them feel rather tentative, more like “don’t be overtly anti-religious.”

In the absence of Justice Scalia, I’m happy that we have yet another justice who is not just clear, but enjoyable to read. There’s this section of Justice Gorsuch’s concurring opinion in which he uses a Goldilocks metaphor in referring to the changing standards used by the Colorado Commission:

Goldilocks, image from here

At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper.

Justice Thomas ends his concurring opinion with a reminder that he told us so:

In Obergefell, I warned that the Court’s decision would “inevitabl[y]… come into conflict” with religious liberty, “as individuals… are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy” [Alito]. If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The battle is being waged. I hope the meekly religious can hang on until it’s time to inherit the earth.

Partial Victory for Religious Freedom

It’s June, the Supreme Court ruling season. Today the Supreme Court announced its ruling in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. It was a 7-2 ruling in favor of Masterpiece Cakeshop.

But it was a very narrow ruling, answering almost none of the questions surrounding the issue, and mainly just telling the Colorado Civil Rights Commission that they were wrong to express their hostility toward religion during their prosecution of the baker.

screenshot from this video

It’s good that the case informs this particular Commission, and possibly similar commissions in other states, that religious people have the same rights as other people.

But it is so narrow that the Court says nothing about protecting a creative person’s First Amendment rights if the state has a “compelling interest” it sees as greater than that person’s religious freedom, and it prosecutes without expressing hostility.

So I’m glad it’s not worse, but I wish it were better.

That seems to be how we feel most of the time when so much extra-Constitutional power is granted to these nine unelected judges.

At the bottom, there’s a video from November about the case. But here’s a quick review.

A Colorado appellate court ruled in August 2013 that, when Masterpiece Cakeshop owner Jack Phillips declined to design and create a custom wedding cake for a same-sex couple, he had violated their civil rights. This was in 2012, two years before same-sex “marriage” was legally recognized in the state; the couple got married in Massachusetts, where it was legal.

The couple was not denied service; only their particular commission for a custom product for a particular event was declined. Nevertheless, the Colorado Civil Rights Commission prosecuted and ruled that Phillips must “take remedial measures, including comprehensive staff training” on how conscientious objection must bow before anti-discrimination law in same-sex situations, and to “file quarterly compliance reports” with the state regarding the mandated retraining.

The appeal by Phillips claimed that whether to create a custom cake for a same-sex “wedding” is protected by two parts of the First Amendment: freedom of expression, and freedom of religion.

The ruling doen’t really settle either the freedom of expression or freedom of religion questions. But it gives a nod to respecting the rights of religious people.

Court drawing of Justice Kennedy announcing the ruling
image from here

In his ruling, Justice Kennedy showed this usual pattern of behavior by the Commission:

On at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory.”

In other words, the Commission didn’t always require a baker to act against conscience. However, when it came to this case, the religious conscience was not respected.

Here’s what the Colorado Civil Rights Commission had testified, which was at issue:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

One, the couple was not hurt. They were politely sent where they could get the services done by a willing provider. Two, religion isn’t rhetorical; it is deeply held belief. Even non-religious believers have deeply held beliefs, which constitute their religion, whether they call it that or not. Three, religion is an effort to live a good life, not to do evil. It was religion that led to the elimination of slavery, after it had existed in most cultures for millennia. Further, it was not religion that led to the holocaust, but hatred and bigotry—something differing from the Commission’s hatred and bigotry only in degree of power.

What is despicable is this Commission’s distortion of history in its zealousness to malign religious people.

So, at least the Court got it part right.

SCOTUS has no business deciding whether a baker should be forced to bake a cake—for any purpose. We don’t want the Supreme Court determining nitpicky laws compelling how we conduct our personal lives and businesses. So, in some ways it’s good the Court did not make a sweeping ruling.

An excellent analysis of the opinions is found on the SCOTUSblog, by Amy Howe. But I’d like to walk through the issues, just for clarity.

Two inalienable First Amendment rights were at issue: the free exercise of religion, and freedom of speech, often referred to as freedom of expression. These go up against a state’s “compelling interest” regarding another civil “right.”

The “right” these inalienable and also enumerated Constitutionally protected rights were up against was the “right” to buy a custom product from a particular creative businessperson regardless of that person’s willingness to create it.

That one’s not enumerated in the Bill of Rights, or anywhere else in the Constitution. That doesn’t necessarily mean it isn’t a right. Any God-given rights not enumerated are still vested in the states and the individuals.

But there is a simple way to know whether you are looking at a God-given natural right: were you born with it? You’re born impoverished, ignorant, and naked; you have a claim on your parents to care for you until you can care for yourself. But there’s no natural right to cake-by-the-maker-of-your-choice. You can’t have that as a right without enslaving someone else to provide it. So it’s not a right.

The issue isn’t really about getting a cake; the cake artist (his cakes are literally edible works of art, not just pretty, fancy cakes) politely recommended other cake shops that could meet the needs of the couple.

another screenshot from this video

The issue isn’t really about service to homosexuals, either. The cake artist gladly served all customers, and had a long history of doing so. It was a specific event—the same-sex wedding—that he did not want to use his art to promote.

As David Harsanyi wrote this about the case a year ago: 

Everything in his shop was available to gays and straights and anyone else who walked in his door. What Phillips did was refuse to use his skills to design and bake a unique cake and participate in a gay wedding. Phillips didn’t query anyone on his or her sexual orientation. It was the Colorado civil rights commission that took it upon itself to peer into Phillips’ soul, indict him, and destroy his business over a thought crime.

I’d like to try to translate this in terms that seem less inflammatory than “he just hates gays, and that’s wrong, so he should be forced to do what they ask.”

I have a friend who is an excellent artist. He makes his living doing works of art and selling them. Much of his work is on commission. That means a person comes to him (it used to be in a shop/studio, but now his studio is at his home). And they describe the work they are hoping he can create. Sometimes these are portraits or family groups. Sometimes they are religious works or historical pieces.

He doesn’t take every commission that comes to him. Sometimes it’s a matter of timing; if he takes on too many, he could overwork himself, and the quality would suffer, which would probably bother him more than the clients, but it’s an important factor.

But he also needs to do things that are worth putting the artistic effort into.

Suppose someone came to him asking for something he might find ugly. It could be something with nudity, or explicit sexual behavior, or something anti-Christian, or something racist. Even if the work would have no words on it, art expresses a message. And he might not want his name—or his style and reputation—attached to something repugnant to him.

It might even be that the person asking for the commission is personally disagreeable to him. That happened with an artist who was asked to paint a portrait of Pres. George W. Bush; he declined, because his personal views were at odds. That may have meant he wouldn’t have put his heart into doing the work. Or it might have meant he was afraid people would interpret his work as approval of someone he disapproved of, so it would seem untruthful to him. Or maybe life is just too short to put time and energy into something you don’t want to do. Someone else did the portrait, which turned out to be better for everyone.

So that’s how artistic endeavors work. If you want something creative/artistic done for you, you find someone whose work you like, and you ask to commission the work. The artist gets to say yes or no based on whatever reason he might have—and he doesn’t even have to tell you why.

The only difference with the bakery is that it is a shop; all comers are invited to come in and buy his wares. Still, he’s free to take on a commission for custom work or not. Owning a shop does not make someone a slave to every party who walks in the door.

Good business says he’ll do what he can, and if he doesn’t take on a commission, he makes suggestions of where the customer can go.

This kind of creative situation is also true for florists, photographers, T-shirt printers, stationery printers, and others related to wedding and other services.

It’s pretty clear that, if declining the message is “approved” by this Commission or some other ruling or influential body—a message such as something racist or profane, or even of an opposing political viewpoint—the creative person can turn it down without legal repercussions.

I think it would also be clearly legal for a Muslim baker to turn down work that goes against her beliefs—maybe even if she turned down a same-sex “wedding” cake. Certainly such a baker could turn down anything pro-Israel, or even anything pro-pork industry. A sensible customer would recognize and respect who they’re dealing with.

So what is it that makes same-sex “marriage” celebration, at a time when such a “marriage” wasn’t even a legal reality, a state interest of such great import that it overrides the most essential—and therefore first enumerated—of self-evident natural rights?

We don’t know, since SCOTUS doesn’t actually answer that question with their opinion. In fact, they leave all other creative religious people at risk of enslavement—as long as those prosecuting them don’t overtly mention their antipathy toward religion. “Try again, but be careful not to verbalize your religious bigotry next time,” is what the Court seems to be saying.

It was the narrowness of the opinion that allowed it to be 7-2, rather than 5-4 or 4-5. So, again, I’m torn. The Supreme Court has no business ruling on this issue; they had no business creating same-sex “marriage” in Obergefell. They have overstepped their authority repeatedly on issues related to same-sex “marriage,” and have put religious people in this predicament by their cavalier overreach.

But if the Court has any useful purpose in upholding the Constitution, they would have done well to say, “Of course you can’t enslave a human being to do work that directly violates his conscience, simply to serve a vocal minority group favored by the elites in media, academia, and socialist ideology.” That would have been helpful.

If we didn’t have activist judges on the Court, we might have gotten a more satisfying ruling. Gorsuch and Thomas seemed willing to give it.

But, as long as Kennedy is on the Court, he will rule with his gut on critical issues more often than with the Constitution. Justices Breyer and Kagan were only with Kennedy on this because the Colorado Commission had verbalized its meanness.

Meanwhile, Justices Ginsburg and Sotomayor were perfectly aligned with a pro-slavery ruling, as long as it makes them look like they favor a popular minority.

The best way to settle these divisive issues? Stop repeating the lie that religion is simply a cover for doing evil. Stop assuming evil of everyone whose opinion is different. Actually tolerate. Respect differences of belief, and don’t prosecute over them. Because prosecution over belief is tyranny, with all the ugly that attaches to that word.

How Five Justices Made Marriage Unconstitutional

Guest Post By Political Sphere

The landmark decision of Obergefell v. Hodges redefined the governmental definition of “marriage” throughout the United States, ruling that all states must now recognize and promote “marriage” between two adults of the same sex as equal to marriage as it “has existed for centuries and millennia.”^[i] But redefining marriage so fundamentally produces a serious unintended consequence. With the stroke of a pen, five justices on the Supreme Court of the United States have rendered unconstitutional the government recognition of "the foundation ... of society, without which there would be neither civilization nor progress."^[ii]

Under the equal protection clause of the 14th amendment, when a state statute seeks to classify people, the classification is presumed to be valid, but will only be sustained if the classification drawn by the statute is rationally related to a legitimate government interest.^[iii] States are responsible for developing and implementing marriage laws, and the whole point of marriage laws is to classify certain types of relationships. Marriage laws grant rights and responsibilities to spouses that are not granted equally to live-in girlfriends/boyfriends or to polyamorous relationships. These rights and responsibilities bestowed upon married couples show that the government considers marital relationships as superior over other types of relationships in the eyes of society. Therefore, under the 14th amendment, the classification must be rationally related to a legitimate government interest.

What then is the legitimate government interest in classifying some people as married and others as unmarried? The majority opinion sets forth four principles and traditions explaining why marriage is fundamental under the constitution. While these are intended to show why the definition of marriage should be fundamentally changed to include homosexual unions, perhaps these will offer insight into the legitimate government interest supporting government recognition of this cornerstone of society.

The first premise is that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”^[iv] In using this premise to justify fundamentally redefining marriage, the majority explains that the personal choice of who to marry is protected from government involvement just as other intimate choices that follow the Roe v. Wade line of cases.^[v] Therefore, this premise does not provide us with a legitimate government interest in classifying people as married or not, but rather a reason that the government is prohibited, or at least limited, from intruding on marriage.

The second premise is that the right to marry “supports a two-person union unlike any other in its importance to the committed individuals.”^[vi] The majority elaborates that “the right to marry dignifies couples who 'wish to define themselves by their commitment to each other.’”^[vii] And continues, “Marriage responds to the universal fear that a lonely person might call out to find no one there.”^[viii] While a government may have an interest in ensuring that people are more reliant on those they directly associate with than on the government when there are rough patches in their life, there must also be a rational relationship to this interest when classifying one set of roommates over another. So there must still be something more that provides the legitimate government interest for the classification of marriage over other relationships.

The third premise is that “It safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”^[ix] This is where we finally get a reason for the classification which is rationally related to a legitimate government interest.

The Chief Justice explains more fully in his dissent:

The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the [biological] mother and [biological] father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible does not solve.” J.Q. Wilson, The Marriage Problem 41 (2002).^[x]

Therefore, the government does have an interest in classifying marriage, but it is related to the procreation process. Introductory biology teaches that all organisms live, breed, and die. Thus, as a human race, we have a biologic requirement to procreate in order for our species to survive. Not only is procreation vital to the survival of the human race as a whole, but also to the individual state as a country which is declining in population is susceptible to being overthrown by more vibrant societies. Therefore, there is an interest for the government to encourage procreation in order to continue the state. And all of the rights and responsibilities associated with marriage appear to revolve around promoting procreation and the preference for biological parents to raise their children together.

But the majority states that “The constitutional marriage right has many aspects, of which childbearing is only one.”^{[xi] [xii]} So let us consider whether the final premise offers an additional rational basis, one that would also provide a rational basis for including a homosexual relationship.

The fourth premise is that tradition makes clear that marriage is a keystone of our social order.^[xiii] There are two problems with this premise. First, tradition is not a legitimate government interest that allows for classification. That is made clear by the equal protection clause of the fourteenth amendment. Traditionally, all people of color were treated as second-class citizens. But under the equal protection clause of the fourteenth amendment, that horrific tradition was abolished. Therefore, tradition is incapable of acting as a rational basis for a statutory classification under the equal protection clause.

The second problem is, while the definition of marriage has certainly had changes throughout the millennia it has existed, there has been only one common factor. Traditionally, marriage has always been limited to a union between man and woman. Even where polygamous marriage is and was allowed, all polygamous marriages have required at least one male and one female. As the Chief Justice noted in his dissent, both the majority opinion and the petitioners in the case had to concede that they are not aware of a single society which permitted homosexual “marriage” prior to 2001.^[xiv] Thus, tradition both cannot and should not be a rational basis for the classification of marriage as the Supreme Court has defined it.

In conclusion, the only rational basis for government recognition of the classification of marriage that may reasonably be argued is procreation and the raising of children by that child’s biological parents. By eliminating this requirement from the definition of marriage, the Court has eliminated the sole rational relation to a legitimate government interest in classifying people by marriage.

The Court has eliminated marriage as a government institution. Therefore, when a case arises where an official refuses to grant marriage licenses, as happened in Kentucky, that official should not be compelled to issue such licenses as they purport to classify people without any rational basis related to a legitimate government interest.

---

^[i] See Obergefell v. Hodges, 576 U.S. ___ (2015) (p. 3-4 of the Majority opinion, p.4 Roberts Dissent).

^[ii] Id. at 16 of the majority opinion quoting Maynard v. Hill, 125 U.S. 190, 211 (1888).

^[iii] Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40 (1985).

^[iv] Obergefell, majority opinion at 12

^[v] Id.

^[vi] Id. at 13

^[vii] Id. at 14 quoting Windsor v. U.S.

^[viii] Id.

^[ix] Id.

^[x] Id. at 5 of Roberts dissent.

^[xi] Id. at 16 of the majority opinion.

^[xii] The majority also states that “it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate.” However, until the Griswold v. Conn., Roe v. Wade, and Lawrence v. Tex. line of cases, the commitment to procreate was regularly required by the states. The capacity has always been presumed, through the fertile octogenarian rule which holds that every person is irrebuttably presumed fertile from birth until death.

^[xiii] Id.

^[xiv] Id. at 4 of Roberts dissent.

Duty to Resist

I’ve been thinking about what to write on this issue, because there may not be a single right path, and I’m in disagreement with a lot of good rule-of-law people. I’m watching with interest what the county clerk in Kentucky does. And I’m glad she’s taking a stand.

Rowan County, KY, Clerk Kim Davis goes to jail

photo made available by 

Carter County Detention CenterZUMA Press/Newscom, found here

Both sides can be right. I’m looking historically at Helmuth Hübener and friends, in WWII. I wrote about their moral dilemma in December 2013.

It was not policy for Mormons to be encouraged to rebel against their government, even under tyranny. But still they were taught the value of freedom and God-given rights. So it was a dilemma.

German Mormons were not condemned for fighting in the war, even if they believed their country was in the wrong; they were obliged to do as directed, and the blame would be on the hands of the nation’s leaders. However, if they could find ways to do good to their fellow man, or to find nonviolent ways to seek freedom, they were not forbidden by the Church. In other words, they were taught the principles and allowed to make their best decisions—just the same as today.

Hübener and friends didn’t have to do what they did. They could have been justified in just going along with the coercive government. But they chose to resist the evil. I admire them for that. I wrote,

The boys were right to act as they did, because the tyranny surrounding them was wrong. Nevertheless, they did commit treason in the eyes of the law, such as it was, and they acted with the full knowledge that they would face punishment if caught. It would not have been sinful to them to have followed their leaders’ advice, keep their heads down, and make no waves. It would not be a dilemma if there weren’t two competing positions. But since they were old enough to know their own conscience, and know what God was personally leading them to do, it was right for them to act.

Kim Davis, the Rowan County Clerk, in Kentucky, has refused to issue marriage licenses following the Supreme Court ruling in Obergefell v. Hodges. That was the same-sex “marriage” ruling, which resulted in the slim majority of unelected US Supreme Court justices throwing out the millennia-old definition of marriage and replacing it with something of their invention.

I am a supporter of the rule of law. That creates a dilemma when the “law” is created unjustly and illegally, and additionally goes against God’s law. In theory (actually, in the written Constitution, so in reality), only the legislative branch can create law. The judicial branch has no such power. So when SCOTUS invents a new definition of marriage and imposes it as law in all 50 states, the very idea is ridiculous. Except that it is happening.

However, government receives power from the consent of the governed. So if the people do not consent, the government lacks the power. I was hoping, in the wake of the erroneous decision, that many states would simply refuse to comply. As Douglas Wilson wrote,

If just ten governors treated Obergefell the same way Kim Davis is treating it, that entire unrighteous and despotic imposition would collapse and fall to the ground. And if they did so, they would not be sinning against the United States. Rather, they would be preventing the United States from sinning.

The end game here is not armed revolution. The end game is simply a refusal to cooperate with their revolution.

Every state that has a constitutional amendment defining marriage pitted state sovereignty against federal government overreach. The 10^th Amendment guarantees that state sovereignty is supreme on any issue not enumerated as a federal power.

In Ryan Anderson’s book Truth Overruled: The Future of Marriage and Religious Liberty, his first step in the battle we’re now in is to point out, clearly and consistently, that the ruling was a bad decision, with no relation to the actual Constitution. This was the approach taken by pro-life activists following the badly decided Roe v. Wade, which is showing progress in the direction of life more and more.

Quoting Ted Cruz this week: “In dissent, Chief Justice Roberts rightly observed that the Court’s marriage opinion has nothing to do with the Constitution. Justice Scalia observed that the Court’s opinion was so contrary to law that state and local officials would choose to defy it.”

There were temporary, brief refusals in various states, including Texas. But, with this singular exception of Kim Davis, everyone else seems to have succumbed to judges at various levels saying, “You have to do what I say.”

If we’re going to live in a country in which unlawful laws can be imposed by non-lawmaking branches of government, and abide by those laws, then what are we going to do to accommodate those who find those laws unrighteous?

I don’t say that Kim Davis’s way is the right way, or the only right way. If I understand the situation correctly, she has refused to issue any marriage licenses in her county since the SCOTUS ruling. The intent was to avoid the accusation that her office was discriminating based sexual orientation. She has also ordered her employees not to issue licenses. Her basis is that issuing the licenses violates her Christian faith. The reason she wouldn’t allow employees to issue licenses is that her name, as county clerk, is on each document, so that means she is actually approving the license, validating it.

There ought to be an accommodation for her. North Carolina pre-empted the problem. As Ryan Anderson describes it,

North Carolina provides a great example. The state legislature earlier this year passed a law that protects magistrates who object to performing solemnizing ceremonies for same-sex marriages and clerks who object to issuing same-sex marriage licenses. It also makes clear that no one can be denied a marriage license, but magistrates or clerks could recuse themselves from the process behind the scenes should they have sincere objections to same-sex marriage.

Again, it’s a win-win for everyone. No one loses anything.

Every state could act to offer such accommodations. As Illinois law professor Robin F. Wilson says, citizens may have a claim to receive certain “services from the state, but they do not necessarily have a claim to receive the service from a particular public servant.”

I can come up with a simple solution for Rowan County. Create a new document, without the clerk’s name on it, for any “marriage” to be licensed that the clerk does not want to validate. I was able to create a nice-looking diploma for my homeschooled children; I’m sure it wouldn’t be beyond the abilities of someone in the office. Allow someone else in the office to issue the license. Done. No more contempt of court. No more lines of marriage applicants being turned away.

Wait. While she’s been in jail the past few days, her office has issued licenses, and I understand they do not have her name on them (actually it's unclear whether the documents just lack her signature and approval, or whether her name was removed). Her lawyer, Mat Staver, points out that they aren’t worth the paper they’re printed on, because they were issued under the county clerk's authority, which she had not granted.

He’s right that they don’t include the imprimatur of the county clerk. But they’re not necessarily invalid for getting what the couples require. I think the issue could be resolved by printing the line of authority on the document:

“By the power granted to a majority of the Supreme Court of the United States to write laws defining marriage in the state of Kentucky, in the County of Rowan, this document ….”

And, like I said, make it pretty, so everyone is satisfied. Those who believe the Supreme Court has lawmaking power have a document that says so. And those who believe it does not, they have a document that says the document is only valid if the Supreme Court has such powers, which it does not. And the clerk does not have to spend time in jail for not having the court-prescribed opinion.

Kim Davis is an elected official. If she doesn’t give in, the legislature will have to remove her, going against the voters who elected her as well as the voters who defined marriage in the state. Or they can do the simple accommodation.

I wavered in my thinking through this issue when I read that Justice Scalia said she should do her job. “Justice Scalia explained why Kim Davis should issue marriage licenses to same-sex couples or find a new job” was the headline. But it turned out, that was just an opinion piece quoting Scalia’s 2002 book, in which he said judges who have a belief that there should be no death penalty, when it is the law of the land, should not be judges; they should not undermine the law by ruling according to their opinion. I see that as very different from someone who has an elected position, and then after the fact, through dubious judicial lawmaking, definitions are changed, thus changing the official's duties.

Are we prepared to say that everyone who still believes in the necessity for marriage to include a man and a woman should be prevented from serving in positions in which they are otherwise fully qualified?

At least Kim Davis is making us ask the question.

There are plenty of sources saying Kim Davis is in the wrong—all the mainstream (liberal) sources, and probably a majority of more conservative opinions. (I’m hoping son Political Sphere will follow up with his opinion, which thinks Davis’s lawyers could have come up with a better defense, and better advice for her. His opinion on the Obergefell ruling is one I haven’t seen anywhere else, and I find it compelling, but he’ll explain it better than I can.)

Nevertheless, some of us stand where I do. I’ve benefitted from reading several views on this subject, which I recommend:

·         Senator Ted Cruz’s Statement on the Arrest of Kentucky Clerk Kim Davis

·         Matt Walsh’s blog post “Kim Davis Broke an Illegitimate, Evil Law, and God Bless Her for It”

·         “In Which I Paint With Some Bright Yellows,” by Douglas Wilson 

·         “Kentucky Clerk Not Issuing Gay Marriage Licenses Causes Uproar. North Carolina Shows Better Way.” by Ryan T. Anderson 

·         Mark Levin show, linked at “Mark Levin DefendsKentucky Clerk: Supreme Court Is Nullifying the Rule of Law, Not Kim Davis” 

Getting It Wrong, Part II

The sad news of the Obergefell v. Hodges ruling came out on Friday.

Normally on controversial rulings, I go through the opinions in this blog and consider the legal ramifications. But we’ve been through much of this already. Kennedy’s opinion ignored the law and came down to something about him personally not wanting homosexuals to feel lonely--not kidding. (He ignored his own recent ruling that marriage law was up to the states, not the federal government.)

The irony of the day was Chief Justice Roberts’ dissent about the majority ignoring the law—after he had done exactly that the day before on the King v. Burwell decision. All four dissenting judges wrote their own dissents—all worth reading. Again, Justice Scalia’s is the essence of clarity and truth.

Justice Kennedy is at fault—moreso than Breyer, Ginsburg, Kagan, and Sotomayor—because the others are partisan hacks, but Kennedy swings, so the decision was his. He is like the independent voter, going by some personal list of criteria mysterious to those of us with real principles, with the hubris to believe that his mind workings are more evolved than the rest of us.

That single unelected person in a black robe decided for all of America that there is, somewhere hidden in the 14^th Amendment, a heretofore unknown right for homosexuals to marry. Because he knows more than God.

He doesn’t actually know more than God. Reactions to the ruling seem to forget that.

The people's house, with a small sub-group's flag
superimposed on it, photo from WhiteHouse.gov

The White House cheered by changing the white lights to be a rainbow. They were able to accomplish that lighting change that very day. One might think that was planned for way ahead of time, almost as if they had control over the ruling. Author Brad Thor pointed out that this was practically the first time the White House wasn’t surprised by the news; practically everything else they claim to learn about as we did, on TV news broadcasts. 

We might note that the White House is the people’s house, not the Obamas’. Their “gay pride” in the face of more than half of Americans is intentionally offensive. No other flag has been represented in colored lights on the White House—not even red, white, and blue on the 4^th of July. The LBGT flag gets special privileges, just as homosexuals insisted on special privileges concerning marriage.

In addition, the president gave a speech (also likely prepared well in advance of the ruling, as if he knew the outcome). Apparently forgetting that he deceptively campaigned in 2008 as a supporter of traditional marriage, he said,

Opposition in some cases has been based on sincere and deeply held beliefs…. All of us who welcome today’s news should be mindful of that fact. Recognize different viewpoints. Revere our deep commitment to religious freedom.

But today should also give us hope that on the many issues with which we grapple often painfully real change is possible.…

Shifts in hearts and minds is [sic] possible…. And those who have come so far on their journey to equality have a responsibility to reach back and help others join them.

Let me translate: “You bitter clingers need to give up your religious beliefs; we’re right and you’re wrong, and we’ll force you into compliance. We might go easier on you if you submit to our superiority now.”

Here’s the thing: the president of this country is not more powerful or more all-knowing than God. Neither are any black-robed judges.

Contrary to popular belief, marriage—real marriage—didn’t change on Friday. Real marriage is older than all earthly governments, and it won’t change because people change their opinions.

It predates this earth. But on our planet it was instituted by God to our first parents. He gave Adam and Eve a covenant—between each other and the two of them together with Him—to sanction the behavior that they would need to experience (and hopefully enjoy) in order to multiply and replenish the earth, so that they would experience the joy of having posterity.

Marriage was a blessing to them from the beginning, and to all of us who have come after. Saving that sexual act until it is sanctioned by covenant offers many blessings: knowing who a child’s parents are, committing both parents to the raising of their children, economic stability, absence of sexually transmitted diseases, and more. There is nothing instituted in any culture at any time that is better for building civilization.

Marriage provides care for children during the years before they are productive. It provides support for women during childbearing and raising small children when they would otherwise struggle to be self-sustaining. It motivates men to more productivity in order to meet their family obligations. And it connects men and women permanently, to work together for the economic and social well-being of their family unit.

There is a detail about this that has been ignored in today’s society. Marriage is to sanction the procreative sexual act—before it takes place. It legitimizes no sexual act other than the procreative one. And it is understood that extramarital participation in that act is illicit: i.e., outside the law, not sanctioned by law.

In religious terms, any sexual acts outside of marriage is a sin. It is outside the covenant. God has not approved it. That’s why the terminology includes phrases like “illegitimate child,” “living in sin,” or “making an honest man (or woman) out of me.” 

Governments, which usually support the covenant, refer to the specific procreative act. This procreative act requires a male and a female. If you don’t believe this, your biological education is sorely deficient. A marriage isn’t consummated until the man and woman engage in the act. Failure to engage in it is grounds for annulment.

Homosexuals never, ever, world’s without end, engage in that act with someone of the same sex. It isn’t a physiological possibility. What they do is sexual, but it isn’t what is required for marriage. The Supreme Court can’t make it so; all SCOTUS can do is confuse the law, and take away the honor from real marriage that it has always had because of its benefit to society.

Furthermore, homosexuals are not entering marriage in order to place within the law any sexual act they have been refraining from; you may not find, in the entire history of homosexuality, a couple that keeps themselves pure and virginal up until the moment their government deems them married. They aren’t insisting on their alignment with God; they are insisting that society ignore what marriage is and honor their sexual act as equivalent to the procreative act—just because they want the honor.

Society has been duped.

This has been the result of a media campaign. If truth were given even half as much media, beliefs wouldn’t have been manipulated.

The issue has been framed as about fairness and tolerance. There may have been times, a century ago, when people were prevented from making a living or getting housing because of their homosexual lifestyle. That mostly disappeared long ago. Long before judicial activism stepped in to “help.” But the media campaign has portrayed anyone who points out the obvious—that real marriage is best for children, families, and societies as a whole—as bigoted homophobes. Name calling. As well as some sticks and stones in the form of ostracism and business ruin intended to instill fear.

What we’ve seen on social media this past weekend is a lot of bandwagon jumping. People want to pat themselves on the back for not being bigoted, so they put a rainbow on their profile photo. They think they’re meaning, “I’m open-minded; I’m a good person. Because I don't hate gays.”

But they’re actually falling into the trap of another meaning: “I don’t want to be seen as something the loud media calls bad, so I’m labeling myself the way the media wants. And I think we media-go-alongers know better than God. Those people who don’t go along with us will be labeled negatively and will be persecuted, as they should be, for not giving in with us.”

If you’re a go-alonger, you seem to have fallen for some things that are not true. Such as, homosexuality is a genetic reality; a person is made homosexual and cannot change or even refrain—and shouldn’t.

Let’s look at what this means to a Christian, since actual Christian believers are to be the target of the persecution. You go-alongers are saying that, while God requires obedience to His commandments for all heterosexuals, He made homosexuals exempt to His law, because no homosexual should be expected to refrain from sexual acts God’s law forbids. You are saying God must have made a mistake—because science (not real science, but pseudo-science) says homosexuality is natural, and inborn, and unchangeable—and that means they have no free will to control their behavior.

You are saying, either God has to change His law, or else He is unfairly excluding an entire group of people who haven’t done anything to keep themselves out of heaven except that sexual sin thing that you think shouldn’t apply to them. So God is just a big unfair meanie. According to you. Because you know better than God.

Can a real Christian be wrong on such an issue? Yes, we can all be wrong on a lot of things. But God is not wrong. So if you’re out of harmony with God, it is up to you to correct yourself. Christians who are in harmony with God on family and marriage will not persecute you; we will use persuasion, example, and patience. That’s what Christians do. That is what tolerance looks like. Not giving in, not celebrating sin. But with love trying to persuade all people to come unto God.

Tolerance does not look anything like coercing Christians to use their talents and abilities to celebrate what God has clearly declared to be a sin. So if you’re one of those who says, “Just go ahead and bake the cake already, you troglodyte bigot,” you’re on track to support tyranny. We’ve seen it before. Everywhere there has been tyranny.

Taking the side of tyranny for temporary safety from persecution might seem like a good idea to you now, but you will answer for it before God.

I call you to repentance, with gentle invitation, but firmly. I’ve taken a stand. And experience tells me I’m better off siding with God than with Obama, or Justice Kennedy, or even friends who put pro-homosexual flags on their profile photos.
______________

PS: Son Political Sphere reminded me of an additional point. Justice Scalia has pointed out that every time Kennedy writes that something is safe, the next ruling he writes endangers that very thing. This time his opinion assured us that our First Amendment guaranteed freedom of religion is safe. That means the next thing you can expect from Justice Kennedy will be his explanation of why we do not have that right. We'll be watching.

Millennia of Marriage, Part II

In Millennia of Marriage, Part I, we covered the first several points of Question 1, of oral arguments before the Supreme Court last Tuesday. The main concern was whether the many nations and cultures that have defined marriage as between a man and a woman did so out of animus toward homosexuals or because of some other rational reason.

The answer was clear that there are rational reasons for limiting the definition of marriage to man-woman relationships.

That question covered most of Ms. Bonauto’s portion, but not US Solicitor General Verrilli’s portion, nor the defense. So the rest of today’s post will cover those portions. It may take a third post to cover Question 2. 

Starting where we left off, the next question is brought up by Justice Alito:

JUSTICE ALITO: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license?

The point here is that, if a marriage is just a governmental recognition of any two people who love each other, then how can you limit the criteria to two people, or any of the other limitations? In all the debates on this I’ve heard over the years, the same-sex “marriage” advocates always avoid this question. They say, “we’re not talking about polygamy,” or whatever. No, they’re not talking about it, because they have no answer.

Ms. Bonauto says it’s questionable whether a state would even call that a marriage. Hmm.

Polygamy, she claims, brings up all kinds of questions about consent and deceit. Justice Alito presses her, with good humor:

JUSTICE ALITO: Well, what if these are 4 people, 2 men and 2 women; It's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. (Laughter.) What would be the ground under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

She steps into the trap. She claims that the number two is fundamental to marriage. She offers her personal opinions on the disruption to family that could be caused. But she has nothing to explain why the number two must be fundamental to marriage but the combination of man and woman is not.

Questions about the social science. Concerning same-sex parenting, she claims it’s all settled:

MS. BONAUTO: These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there's nothing about the sex or sexual orientation of the parent, is it is going to affect child outcomes?

Not so. This statement is repeated later by General Verrilli:

GENERAL VERRILLI: Right now, today, hundreds of thousands of children are being raised in same-sex households. That number is only going to grow. All of the evidence so far shows you that there isn't a problem, and what the and the States' argument really is quite ironic in this respect that it's going to deny marriage, the State…  I think all of the leading organizations that have filed briefs have said to you that there is a consensus in that, and

JUSTICE SCALIA: Well, I think some of the some of the briefs contradicted that.

It is the purpose of the plaintiffs—and the federal government in defending circuit court rulings—to shut down debate by claiming there is consensus. That all the social science of, what, almost a decade in a few places that have had same-sex “marriage” for that long, agree forevermore that children’s outcomes show no differences. And yet the briefs clearly show that consensus is not the case. In fact, the most recent, and mounting, evidence shows a number of negatives for children raised by same-sex parents.[i]

Back to Ms. Bonauto’s testimony, Chief Justice Roberts points out that the length of time for study has been very short, and, “closing of debate can close minds.”

Justice Scalia then expressed concern with declaring something constitutional law, when there’s a lot of disagreement, including for religious reasons. When states form the laws, they can carve out exceptions, but once something is declared a constitutional right, there are no exceptions. What would happen to ministers who perform marriages? Ms. Bonauto said no state forces clergy to perform marriages against their conscience. But that’s the point; state law is able to allow exceptions, while constitutional law cannot.

Furthering this discussion, it was admitted that, while a clergyperson couldn’t be required to perform such a marriage, refusal to do so could lead to government refusing to grant him marrying authority altogether. And justices of the peace or other officials with marrying authority would not be granted religious freedom exemptions.

This issue is bigger than it was made at this point in the discussion. Justice Sotomayor claimed that the First Amendment would protect religious freedom. But it already hasn’t. Everywhere same-sex “marriage” has been imposed, religious freedom has been abrogated. Small business owners have been the most common target. The persecution has been vicious.

This same question arises again during General Verrilli’s testimony. And this was one of the more newsworthy moments of the day.

CHIEF JUSTICE ROBERTS: We have a concession from your friend that clergy will not be required to perform same-sex marriage, but there are going to be harder questions. Would a religious school that has married housing be required to afford such housing to same-sex couples?...

GENERAL VERRILLI: The first [point] is, of course, this Court's ruling addresses what the States must do under the Fourteenth Amendment. And the second point is that when you get to a question like the one Your Honor asked, that is going to depend on how States work out the balance between their civil rights laws, whether they decide that there's going to be civil rights enforcement of discrimination based on sexual orientation or not, and how they decide what kinds of accommodations they are going to allow under State law. And they could well you know, different states could strike different balances.

CHIEF JUSTICE ROBERTS: What about Federal? It's a Federal question if we make it a matter of constitutional law.

GENERAL VERRILLI: But the question of what how States use their enforcement power is up to the States.

CHIEF JUSTICE ROBERTS: Well, you have enforcement power, too.

GENERAL VERRILLI: Right. And, well, that's certainly true, but there is no Federal law now generally banning discrimination based on sexual orientation, and that's where those issues are going to have to be worked out. And I guess the third point I would make, Your Honor, is that these issues are going to arise no matter which way you decide this case, because these questions of accommodation are going to arise in situations in States where there is no same-sex marriage, where there are and, in fact, they have arisen many times. There are these commitment ceremonies. For example, in the New Mexico case in which this Court denied cert just a few months back, that did not arise out of a marriage. That arose out of a commitment ceremony, and these, you know, commitment ceremonies are going to need florists and caterers.

JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

GENERAL VERRILLI: You know, I don't think I can answer that question without knowing more specifics, but it's certainly going to be an issue. I don't deny that. I don't deny that, Justice Alito. It is it is going to be an issue.

Let me summarize that: Clergymen might lose their right to marry if they are unwilling treat same-sex couples the same as man-woman couples, regardless of their religious beliefs. People in service industries related to weddings can be forced to offer their services, regardless of their religious beliefs—and possibly regardless of whether or not same-sex marriage is called constitutional. And religious schools will be affected—lose tax-exempt status, lose accreditation, etc.— if they teach their religious beliefs about marriage.

If you're wondering how granting same-sex "marriage" affects me, there it is.

Is there any possibility that anyone thinks the founders who wrote the First Amendment expected that amendment to be thrown out because same-sex couples want to change the definition of marriage?

The two sides define what marriage is differently. Ms. Bonauto referred to “intimate and committed relationships” to “provide mutual support.” Justice Alito asks for a definition directly from General Verrilli:

JUSTICE ALITO: What do you think are the essential elements of marriage as it exists today?

GENERAL VERRILLI: Well, I think the essential elements of marriage are the ones that are that the the obligations of mutual support and responsibility and the benefits surrounding marriage that State law provides to ensure that there is an enduring bond, that enduring bond that continues over time and lasts, hopefully, till death do us part, through the end of life. And that and with and and, certainly, childrearing is bound up in that.

So, it’s a relationship of mutual enduring support. And, as an afterthought, the two people might rear children that don’t necessarily result from the relationship—and in the case of same-sex couples absolutely cannot result from the relationship.

Justice Alito challenges this assertion with a situation that seems to strike the Solicitor General as random and unrelated, even though it’s right to the point:

 JUSTICE ALITO: Well, let's think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They've lived together for 25 years. Their financial relationship is the same as the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently?

This question came up some years back when some states were considering civil unions; some people on the side of preserving real marriage were willing to compromise on civil unions—provided that elderly siblings and other non-sexual unions could be included. But General Verrilli has some internal definition of what marriage is supposed to be that wouldn’t allow it:

GENERAL VERRILLI: But, of course, marriage is something more fundamental than that. It is an enduring bond between two people.

He doesn’t answer what the difference is. But what he’s avoiding saying is, you can’t have marriage without a sexual relationship—and we’re all going to ignore the fact that it’s a different sexual act that separates real marriage from same-sex “marriage.”

The defense counsel was John J. Bursch. He pointed out that there is this difference in definition.

MR. BURSCH: The marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology…Now, the marriage view on the other side here is that marriage is all about love and commitment. And as a society, we can agree that that's important, but the State doesn't have any interest in that. If we're trying to solve that social problem I just described, where there's no marriage, we wouldn't solve it by saying, well, let's have people identify who they are emotionally committed to and recognize those relationships.

Marriage, then, is a social institution intended to bind mothers and fathers to each other so that they will be bound to their offspring.

Most of the interrogation of Mr. Bursch related to how laws deal with procreation. What several of the justices seem to be unaware of is the way courts have historically dealt with fertility. It has always been the assumption of the state that a man and woman who marry may be fertile.  The women on the court seemed especially unable to grasp the concept that if you change what marriage is, you change the outcome to society.

MR. BURSCH: Justice Kagan and Justice Ginsburg, it has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. And when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences….   

Justice Sotomayor was too obtuse to grasp the connection. Traditional marriages end, and some parents leave their children; therefore there is no connection created by marriage between mothers, fathers, and their children. He tried again:

MR. BURSCH: Justice Sotomayor, there's all kinds of societal pressures that are already delinking that reason that the State, again, is for marriage, keeping kids and their biological moms and dads together whenever possible.

That last point was something he does not need to prove, Justice Scalia reminds us. The side of traditional marriage does not need to prove there is harm by allowing same-sex couples to “marry”; they prevail if they show they have a rational basis for the definition of marriage.

Mr. Bursch drew this connection between mothers, fathers, and children again and again. And the justices kept asking questions about fertility—ignoring that individual homosexuals are not typically infertile; it is their coupling that is infertile. Biology makes the difference.

When talking about the long-term consequences of changing the definition, he gave this clear explanation:

MR. BURSCH: I want you to think about two couples that are identically situated. They've been married for five years, and they each have a 3-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together.

A reasonable voter, which is what we're talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.

Mr. Bursch refers to the argument as a rational basis for keeping the definition, which is the requirement of the case. But that’s not what Justice Sotomayor is going to judge on. She says,

JUSTICE SOTOMAYOR: But the problem is that even under a rational basis standard, do we accept a feeling? I mean, why is why as and I think Justice Kagan put the argument quite clearly, with something as fundamental as marriage, why would that feeling, which doesn't make any logical sense, control our decision-making?

She seems ignorant of the fact that she is considering imposing same-sex “marriage” on the entire country based on her feeling that it’s more fair to honor homosexual couples’ feelings, rather than the rational basis standard.

The weirdest line of questioning came from Justice Kagan, about the possibility that a state could limit licenses to only those couples who will procreate.

JUSTICE KAGAN: Suppose that there's a State with a very procreation centered view of marriage of the kind that you're talking about. And it you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. And so they say, Well, we're not giving marriage licenses to any to anybody who doesn't want children. So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?...

MR. BURSCH: Would it be constitutional?... I think it would be an unconstitutional invasion of privacy to ask the question.

Justice Kagan seemed shocked.

JUSTICE KAGAN: To ask if you want children is an unconstitutional invasion of privacy?

These are your justices, unaware of the assumption of fertility in marriage law, but thinking it must be constitutional to ask questions about not only fertility, but intent to procreate—in granting licenses And add in maybe judging whether someone is too old to procreate. But they think it’s definitely wrong not to alter the definition of marriage to include same-sex couples.

I wonder how they’d feel about asking the question of whether the couple plans to engage in the male-female sex act that can result in marriage. Because that is an assumption that applies to actual marriage. If one of the couple comes back later and says, “My spouse refuses to engage in marital relations with me,” that is cause for annulment.

Getting into some of the nitty-gritty, about fundamental rights, and how the Windsor case dealt with them, Mr. Bursch reminds Justice Breyer what his ruling said:

MR. BURSCH: In Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental.

Mr. Bursch was well-prepared and fended off the often oddball questions admirably. There were things he was prevented from saying, because of previous rulings of this Court. The Court previously bestowed upon us this unlaw-like and irrational standard: “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.”[ii] So, if a person wants to define homosexual behavior as meaningful, the rest of us are required to go along? Who gets to determine that my “concept of existence,” and so forth is not valid? It’s not a very exact standard.

I would have liked for Mr. Bursch to point out that no homosexuals are prevented from marrying. The closest he was able to come was to say that sexual orientation isn’t mentioned in marriage law. The basic fact is, homosexuals can marry—a person of the opposite sex, not already married, not too close a relative, and who is of the age of consent—just like the rest of us.

The plaintiffs are twisting facts when they say homosexuals are prohibited from marrying; they are not. They keep saying homosexual couples are prevented from marrying; that is so. Already married people are also prevented from marrying, and the plaintiffs seem perfectly content to discriminate against those possibly “bonded and mutually supportive” people.

It seemed to me that the plaintiffs’ counsel and the Solicitor General were unprepared for the questions that came to them. It’s possible that they live insular lives, surrounded by people who agree with them. All they would have needed was to read an article or two by Ryan Anderson[iii]; the arguments are well covered. Yet they seemed surprised by them. They thought they could get by with, gay couples have a right to marry, because, um, because they, um, want to marry, and they should get what they want.

The defense is required only to show that there is a rational basis for defining marriage as it has been done for millennia. The defense of marriage was strong, and clear, and fully aware of the law. Nevertheless, some of the justices seem to be unaware of their job, unaware of current marriage laws, and unaware of the very real dangers to society and religious freedom if they capriciously invent a new constitutional “right.”

If they paid attention, they must allow real marriage to prevail. But, while I was given hope by the oral arguments, I cannot predict what they will rule.

Question 2 assumes that the right to traditional marriage is upheld. Then what happens across state lines? We’ll look at that in Part III.

---

[i] Citations related to same-sex parents and children’s outcome:

• Parliamentary Report on the Family and the Rights of Children, January 2006.

• Douglas Allen, “Review of the Economics of the Household,” October 2013, described in “A Married Mom and Dad Really Do Matter: New Evidence from Canada,” by Mark Regnerus: http://www.thepublicdiscourse.com/2013/10/10996/ 

• Loren Marks, “Same-sex parenting and children’s outcomes: A closer examination of the American psychological association’s brief on lesbian and gay parenting,” Social Science Research, Volume 4, Issue 41, [  http://www.sciencedirect.com/science/journal/0049089X/41/4     ] July 2012, pp. 735-751.

• Mark Regnerus, “How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study,” Social Science Research, Volume 41, Issue 4, July 2012, Pages 752–770.

• Ana Samuel, “The Kids Aren’t All Right: New Family Structures and the ‘No Differences’ Claim,” The Witherspoon Institute, June 14, 2012, http://www.thepublicdiscourse.com/2012/06/5640/#_edn1. [See the footnotes as well.]

• Ann Bailey, “How do children fare when reared by same-sex couples?” United Families International Blog, June 11, 2012 [has an excellent graphic]: https://unitedfamiliesinternational.wordpress.com/2012/06/11/how-do-children-fare-when-reared-by-same-sex-couples/

[ii] 505 U.S. 833, 851 (1992) (plurality opinion of O’Connor, Kennedy and Souter, J.J.).

[iii] Here is Ryan Anderson testifying in Indiana last year: https://youtu.be/3TNmKo5KcMY