First Amendment Theme for the Session

The Supreme Court’s term ended at the end of June. That means it’s a good time of year to take a look at their recent rulings. There was something of a theme this first term with Justice Gorsuch on the bench. There were a number of rulings related to the First Amendment. And mostly it turns out the majority, by a thin—and stretched—line, supports what our Founders thought of as God-given, self-evident rights.

image from here

Remember, the Bill of Rights wasn’t included in the original Constitution, not because those were afterthoughts, but because they were so well accepted as obvious that they didn’t require being spelled out. But some of them, including George Mason, Governor of Virginia, who had been a major contributor to much of the Constitution, decided they’d better include that Bill of Rights—in case there came a time when the people didn’t have the same understanding as the Founders.

That was prescient. Now it’s hard to come up with Supreme Court justices, let alone a majority of people on the street, who are aware of natural rights, and recognize they are bestowed by God, not by government. Now we have people positing we should “repeal” the Second Amendment, as if that would take away our God-given right to defend ourselves. You can’t “repeal” a God-given right; but you can have a tyrannical government that not only fails to protect that right, but also infringes on it—or even stomps on it.

So, back to the list of First Amendment rulings:

·         National Institute of Family and Life Advocates (NIFLA) v. Becerra

·         Masterpiece Cakeshop v. Colorado Civil Rights Commission

·         Janus v. American Federation

·         Rowan County v. Lund

National Institute of Family and Life Advocates (NIFLA) v. Becerra

“A government that tells you what you can’t say in dangerous, but a government that tells you what you must say—under threat of severe punishment—is alarming.” Those are the words of Michael Ferris, President of Alliance Defending Freedom (ADF), following oral arguments in this case. This case is out of California, where people think differently from freedom-loving Americans. There are some freedom-loving Americans in California, as there probably are in all tyrannical regimes, but they’re outnumbered there.

image from here

NIFLA, a crisis pregnancy center, offering free services and followup care in service of their pro-life beliefs, were ordered by the state to advertise, on their walls, abortion services. Other similar service centers had joined NIFLA in the suit. Becerra is California’s Attorney General, who was enforcing the state’s reproductive FACT Act (reproductive Freedom, Accountability, Comprehensive Care, and Transparency).

Let’s put this in some other terms. Say there’s a fast food chain, Chick-fil-A, which sells chicken sandwiches, rather than hamburgers. Suppose government insisted that they must advertise nearby hamburger fast food restaurants on their walls: McDonald’s, Burger King, Whataburger. Their mission is to provide non-beef food. Wouldn’t it go against their mission to advertise other restaurants that do other things?

Maybe we can get the analogy even closer to home. Suppose there’s a vegan restaurant, whose mission is to sell non-meat foods. But the meat lobby convinces government that they need to force vegan restaurants to advertise, on the walls of their establishment, nearby meat-providing restaurants. Should government be allowed to make and enforce such a law?

That’s the kind of question we’re looking at in the NIFLA case. It’s a bit more complex, because of arguments about professional speech (which, it turns out, is still protected speech), and that these nonprofits are being coerced to advertise the government’s services that go against their beliefs and mission.

The ruling, reversing the Ninth Circuit Court of Appeals, was a 5-4 decision. Justice Thomas wrote the majority opinion, joined by Justices Roberts, Kennedy, Alito, and Gorsuch. Justice Kennedy also wrote a concurring opinion, joined by Justices Roberts, Alito, and Gorsuch. Justice Breyer wrote a dissent, joined by Justices Kagan, Sotomayor, and Ginsburg.

It’s a bare win. Which shows how very important it is to get yet another judge who will follow the Constitution, rather than try to argue for a political goal and pretend they’re arguing for the Constitution. [The announcement came as I was writing.]

After the ruling, ADF’s Michael Farris said this: 

No one should be forced by the government to express a message that violates their convictions, especially on deeply divisive subjects such as abortion. In this case, the government used its power to force pro-life pregnancy centers to provide free advertising for abortion. The Supreme Court said that the government can’t do that, and that it must respect pro-life beliefs. Tolerance and respect for good-faith differences of opinion are essential in a diverse society lie ours. They enable us to peacefully coexist with one another. If we want to have freedom for ourselves, we have to extend it to others.

Masterpiece Cakeshop v. Colorado Civil Rights Commission

I wrote about this case when the ruling came down in early June. In short, the case pits public accommodations laws against First Amendment freedom of religion rights.

Jack Phillips of Masterpiece Cakeshop
image from here

The Court drew up short in finalizing that decision, saying that courts could not show prejudice against religious beliefs, which the Colorado commission had done. So the actual question—Can the government force a cake artist to design a wedding cake that celebrates a same-sex marriage? Or, more broadly, Can the government force a person who provides a creative service to use those talents/abilities in direct opposition to the person’s religion?—that question will have to be settled another time. There are pending cases.

One of those cases awaiting the answer to the questions was Barronelle Stutzman’s case, Arlene’s Flowers v. Washington State. It was on the docket for ruling, but in light of the Masterpiece Cakeshop ruling, on June 25^th the judgment was vacated, and the case was remanded to the Supreme Court of Washington for further consideration. 

That means the state court will have to consider whether it’s decision was biased against religious beliefs. They may claim that it was not, even though we know that it was—the persecution against her is pretty obvious, since she never denied service to anyone, and her client wasn’t even miffed with her, let alone injured. If the state supreme court rules the same again, it goes to a Circuit Court of Appeals again, with the same possible results. But in the Masterpiece Cakeshop case, the Colorado Commission actually spoke its prejudice aloud.

But, if it comes before the Supreme Court again—with another conservative judge replacing Justice Kennedy—then the outcome is highly likely to go in her favor. And the real question is much more likely to get answered: no, the government cannot coerce a person into servitude against that person’s religion. As the Founders though, that should go without saying.

Anyway, additional cases awaiting that answer are still in lower court jurisdictions:

·         Joanna Duka and Breanna Koski, owners of art studio Brush & Nib, asking Arizona’s Supreme Court to protect them from the threat of jail time or burdensome fine for claiming the right not to be forced to create art that conflicts with their beliefs. 

·         Blaine Adamson, a promotional printer, with a business called Hands On Originals, asking Kentucky’s Supreme Court to prevent him from being forced to print messages that conflict with his faith.

·         Atlanta Fire Chief Kevin Cochrane, whose case has not been heard by a jury and ruled on, but who is suing for wrongful firing, after being terminated for religious writings he wrote in his spare time and shared never shared during office hours or to professional colleagues. The terrible thing he wrote? That marriage is between one man and one woman—which is the very thing Barak Obama and Hillary Clinton were both claiming to believe in 2008 and beyond.     

Masterpiece Cakeshop and others have this “et al.” in their titles, meaning there are other parties involved. I’m not sure of all the individual other parties. There was a family-owned bakery in  Oregon, Melissa's Sweet cakes, who were fined $135,000 and lost their family business due to the persecution over the religious freedom issue. There’s a farm that used to host weddings at their farm/home, until they refused to be forced to host same-sex “weddings” in what is their actual home, where their children reside. There are  photographer cases as well.

So the question will probably be answered eventually. And, if the choice for SCOTUS is a good one, it is likely to go in favor of religious freedom.

Janus v. American Federation

In this case, the state of Illinois has had a law requiring workers in public sector jobs to pay union dues, regardless of membership in a union, even when they disagree with the union’s efforts, both political and in collective bargaining.  

The syllabus, the brief summary before the written opinions in the ruling, offers this explanation (I’ve skipped over the citations).

The State’s extractions of agency fees from nonconsenting public sector employees violates the First Amendment. Abood [previous similar case] erred in concluding otherwise, and stare decisis cannot support it. Abbod is therefore overruled…. Abood’s holding is inconsistent with standard First Amendment principles…. Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns…. That includes compelling a person to subsidize the speech of other private speakers…. In Knox and Harris v. Quinn…, the Court applied an “exacting” scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive.

This was an incremental ruling. Past cases allowed employees to object to their dues being spent for political purposes. The Janus case extends that to other purposes. The union was speaking for the employee, saying things in the bargaining process on his behalf that he did not want to have said. But he was compelled to pay for the union to say those things against his will.

In summary, this is what the case rules:

The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.

It was another 5-4 decision, along the usual lines, this time with Kennedy going in favor of First Amendment speech rights.

In other words, four of the justices believe it is acceptable to compel speech—or agreement by forced payment of dues—of employees in order to avoid the free ride issue.

We need to talk sometime about the use of the word “liberal” in relation to those who are not in favor of “conserving” the Constitution. The Constitution is about freedom, and protecting that freedom. The opposition to that, therefore, is anti-freedom, which is anti-liberty—or illiberal. Coerced behavior is what the four dissenting judges favor.

Rowan County v. Lund  

The case of Rowan County v. Lund was denied a writ of certiorari—in other words, the Supreme Court didn’t rule on it after all.

In this case, the legislators in Rowan County, North Carolina take turns offering prayers at the beginning of their meetings. There is no paid or invited clergy. No one dictates the content of the prayer. This has been done historically since such meetings in this county began. But some citizens decided to sue the legislators for establishing a religion. The citizens won their suit up through the Fourth Circuit Court of Appeals, and the Fourth Circuit said Rowan County must bring in paid sectarian chaplains to offer the prayers.

Justice Thomas dissented from the denial, and was joined by Justice Gorsuch. As Justice Thomas put it, 

This Court’s Establishment Clause jurisprudence is in disarray. Sometimes our precedents focus on whether a “reasonable observer” would think that a government practice endorses religion; other times our precedents focus on whether a government practice is supported by this country’s history and tradition…. Happily, our precedents on legislative prayer tend to fall in the latter camp…. Yet the decision below did not adhere to this historical approach. In ruling that Rowan County must change the prayers it uses to open its board meetings, the Court of Appeals for the Fourth Circuit emphasized that the county’s prayers are led by the legislators themselves, not by paid chaplains or guest ministers. This analysis failed to appreciate the long history of legislator-led prayer in this country, and it squarely contradicted a recent decision of the Sixth Circuit. I would have granted Rowan County’s petition for certiorari.

Of the direction given by the Fourth Circuit, to bring in paid clergy, Justice Thomas adds this footnote:

In addition to having little basis in history, the Fourth Circuit’s decision has little basis in logic. It is hard to see how prayers led by sectarian chaplains whose salaries are paid by taxpayers—a practice this Court has upheld…, could be less of a government establishment than prayers voluntarily given by legislators.

He offers this final point about conflicting rulings:

The Sixth Circuit, also sitting en banc, recently surveyed this history and upheld a municipal prayer policy virtually identical to Rowan County’s…. The Sixth Circuit acknowledged that its decision was “in conflict with the Fourth Circuit’s” but found the latter “unpersuasive,”… not least because the Fourth Circuit “apparently did not consider the numerous examples of [legislator-led] prayers” in our Nation’s history…. Thus, the Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

Indeed, conflicting circuit court decisions are a usual reason for the Supreme Court to take on a case.

This one shouldn’t be so difficult. There seems to be a misunderstanding of what establishing a religion means. It is a far cry from allowing, or even encouraging, religion or religious behavior. To establish a religion is to make a particular set of beliefs the state-endorsed and state-enforced religion. Not stepping in to prevent free Americans to behave in religious behaviors of their choice ought to always be the default choice of a government protecting the free exercise of religion—the first of the First Amendment rights.

What is the best remedy for Rowan County, North Carolina, now? To continue doing what it is doing, assert its Tenth Amendment rights to decide issues not enumerated as powers given to the federal government, and assert its First Amendment rights to both exercise their religion freely, but to prohibit the federal government from making any law (including by judiciary, which has no lawmaking powers in the first place) prohibiting the free exercise of religion.

If all of us, in every state, had that reaction to Supreme Court overreach, we could breathe easier over whomever the President appoints to that bench.

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.

Confusion among the Courts

It has been an interesting week in Alabama. A federal district judge had decided that the state of Alabama was not allowed to keep the definition of marriage it has always had—that it must change from the family forming purpose of permanently joining a man and a woman to a recognition of any two people currently in a sexual relationship. Of course the judge, Callie Grenade, didn’t word it that way. She referred to the unfairness of “banning” homosexuals from marriage, even though Alabama law (nor in any state) prevents homosexuals from marrying the opposite-sex person of their choice. And certainly over the centuries many have.

The judge had recognized that there would be appeals, and also that there was a strong possibility some questions would be settled by the US Supreme Court this term, within the next few months. So she had allowed for a stay of implementing what she declared to be the new law.

But SCOTUS saw fit to take up this issue, quickly, and rule 7-2 that the stay was not allowed, and Alabama must go ahead and start issuing marriage licenses to same-sex couples. (More about the reasoning, and the strong dissent in a moment.)

But Alabama Supreme Court Justice, Roy Moore (the same one who stood up against SCOTUS by refusing to remove the Ten Commandments from his courtroom some years back) instructed Alabama officials not to issue the licenses.[*] He said,

Effective immediately, no probate judge of the state of Alabama nor any agent or employee of any Alabama probate judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.

There are still cases pending. There is reason to assume a state does have the ability to define terms in a standard contract such as marriage. For officials in the state, the question is, do we obey the state supreme court or the federal circuit judge? Hmm. The people of Alabama elected Justice Roy Moore, but they did not elect an appointed federal circuit court judge, nor did they elect any of the SCOTUS justices. Also, federal courts under these circumstances are supposed to be applying current law in a particular case; they are not intended to set precedent.

But officials are torn; some counties are offering the marriage licenses to same-sex couples, while some counties are not. Confusion is the key word for the day.

But if there is a good chance the licenses would be declared null and void just a few months down the road, wouldn’t there be less confusion by waiting? SCOTUS is causing the confusion.

In Justice Clarence Thomas’s dissent (joined by Justice Scalia), he refers to patterns of the court in the past, leading to the expectation that there would be a stay in implementing the change, as Alabama requested. He listed several cases where SCOTUS had granted such a stay:

When courts declare state laws unconstitutional and enjoin state officials from enforcing them, our ordinary practice is to suspend those injunctions from taking effect pending appellate review. See, e.g., Herbert v. Kitchen, 571 U. S. ___ (2014); see also San Diegans for Mt. Soledad Nat. War Memorial v. Paulson, 548 U. S. 1301 (2006) (KENNEDY, J., in chambers) (staying an injunction requiring a city to remove its religious memorial).

Recently the Court had chosen not to stay, but those cases were following the Court’s refusal to take up the cases, last fall. At that point, while a stay still would have been useful and respectful to the states, there wasn’t an expectation of a permanent resolution in the near future. Now, after the circuit courts had disagreement, and the Court decided to take on the cases, there is an expectation of resolution in the near future, and the stay would therefore be expected and normal. Yet the Court went against pattern, and against respect for the State of Alabama, and refused the request for a stay.

Thomas adds,

Today’s decision represents yet another example of this Court’s increasingly cavalier attitude toward the States…. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.

What is a state to do when the Court inserts itself disrespectfully in an unresolved issue? Particularly when the issue to be resolved is whether a state has the right to do what states have always done? One could assume that the state might do just as Alabama did: ignore the federal edict and assert its state sovereignty.

There’s a bill in the Texas legislature right now with a similar purpose. It’s Texas HB 623, “relating to the funding, issuing, and litigation of certain marriage licenses (preventing officials to grant same-sex marriage licenses against Texas constitution and law).[†]

Texas, as many other states, strengthened existing defense of marriage laws by placing the definition of marriage in the state constitution—which meant that it could not be overturned by federal courts or legislation without directly challenging the sovereignty of the state. Most of the 37 states (I think that's the latest count) where same-sex “marriage” licenses are granted, have had it imposed on them even after the citizens of the states have voted to protect the traditional definition of marriage.

If the federal government derives “its just Power from the Consent of the Governed,” as we’re reminded in our Declaration of Independence, and neither the people nor the people’s representatives have changed the laws, what do the states, or the people, do when a law change is nevertheless imposed on them? Stand up. Stay strong. Refuse to give in. Ignore.

Some smaller states might fear to stand up. That’s why it’s important for a state the size and strength of Texas to stand up. To dare the federal government to invade the state and force submission. What are the odds that the US Military would invade Texas and enforce unjust laws?

We’ve had a Civil War before, and the resistors lost. But the pro-slavery South was out of alignment with the Constitution, which is based on natural God-given rights to life and liberty. If the resistors are standing up for state’s rights, religious freedom, and millennia-old beliefs about the value of family to civilization, will the military engage in a civil war over that?

We won’t know if we don’t stand up and give it a try.

No, I don’t want any kind of violent reaction. But what I trust is that, when you’re in the right, when you’re in alignment with the Constitution, and with God’s law, the good people of America will not violently react to that. They will say, “Oh, the people of Texas really mean it. Maybe we should think long and hard about the principles involved here.” And when thoughtful people think through the principles that lead to freedom, prosperity, and civilization, they choose those outcomes over the alternatives of tyranny, poverty, and savagery.

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[*] A story about this news contains both Justice Thomas’s dissent and Judge Moore’s declaration: “Confusionin Alabama as State Judge Fights Supreme Court After It Allows Same-Sex Marriage,” February 9, 2015, TheBlaze.com.

[†] A story on this bill can be found at "Texas Rep Introduces Bill to Defend Traditional Marriage and StateSovereignty,” January 11, 2015, Breitbart.com.