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.

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 III

Justices Roberts, Kennedy, Ginsburg, Breyer, and Sotomayor
at oral arguments April 28, 2015
photo from here

Did so very much really go on during last week’s SCOTUS oral arguments?

We may not know right away. But possibly the most important case before the Court this year is Obergefell v. Hodges, on the definition of marriage. So we're giving it a careful look.

In two parts we covered Question 1, with Part I looking at the point that for millennia marriage has been fundamentally the joining of a man and woman, including in cultures where there was no animus toward homosexuals, so there are other rational purposes for man-woman marriage.

Part II covered several other points, and the defense. One of the main questions was, what is the justification for changing the definition to include same-sex couples but to then deny other variations? And a big takeaway of the day was that religious people could lose significant freedom to believe in the sacred nature of real marriage, and business people could be coerced to provide services against their beliefs.

In Part III we’re moving on to Question 2. Just as a reminder, here are the two questions, sometimes referred to as the marriage question and the recognition question:

Question 1: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

Question 2: Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex that was legally licensed and performed in another state?

So, Question 2 is asked to consider what happens if Question 1 is answered no; states are not required by the 14^th Amendment to change the definition of marriage to include people of the same sex. In other words, if the states win on question 1, and keep their original definitions, then what? That assumption that the defense has won on Question 1 is important, and the plaintiffs’ counsel had difficulty grasping it.

The first few minutes reveal the basic problem. The plaintiffs’ counsel for this question is Douglas Hallward-Driemeier. (I'll mostly refer to him as counsel, because of the length of that name.) 

MR HALLWARD-DRIEMEIER: A State should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so….

JUSTICE ALITO: I was somewhat surprised by the arguments you made in your brief because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that's the question in Question 2.

That’s the first reminder of the assumption with this question. Notice that counsel makes the extraordinary claim that non-recognition equals dissolution of a relationship.

MR. HALLWARD-DRIEMEIER: …This Court's decisions establish that there is not only a right to be married, but a right to remain married; that there is a protected liberty interest in the status of one's marriage once it has been established under law.

The justices pretty much ignore that claim and continue dealing with recognition. Justice Scalia compares the question to how polygamy from foreign countries is treated:

JUSTICE SCALIA: Suppose, well, let's say someone gets married in a country that permits polygamy. Does a State have to acknowledge that marriage?

The answer is no. It brings out a good point: we don’t have the institution.

MR. HALLWARD-DRIEMEIER: Well, of course, the State could assert justifications for not doing so, and I think there would be justifications…for not recognizing such….I think that the justification would be that the State doesn't have such an institution….

JUSTICE SCALIA: Well, it would be the same argument. We don't have such an institution. Our marriage in this State, which we constitutionally can have because the second question assumes that the first question comes out the way the United States does not want it to come out; the State says we only have the institution of heterosexual marriage. We don't have the institution of same-sex marriage.

There’s no refutation. And this is the second reminder that Question 2 assumes Question 1 was settled in favor of the States.

Counsel tries to explain that the difference is a mere change in gender pronouns for same-sex “marriage,” but more involved for polygamy. So Justice Alito offers another possible difference in marriage laws from state-to-state:

JUSTICE ALITO: What if it's not a plural relationship? What if one State says that individuals can marry at the age of puberty? So a 12-year-old female can marry. Would a State would another State be obligated to recognize that marriage?

MR. HALLWARD-DRIEMEIER: I think probably not.

Counsel tries to make the point that, when the state has an interest, it can decline to accept other states’ marriages, but he’s assuming everyone agrees that no such interest precludes same-sex “marriage.”

Justice Sotomayor asks about consanguinity. Most states recognize married cousins, but at least one state does not. And, while that has been historically rare, it doesn’t seem at all against the Constitution for a state to make that choice.

Then counsel gets another reminder (#3).

JUSTICE KENNEDY: But Justice Alito's question points out, the assumption of his hypothetical is, and of the way these cases are presented, is that the State does have a sufficient interest so that you need not allow the marriages in that State. So there is a sufficient interest, under our arguendo assumption here, to say that this is not a fundamental right. But then suddenly, if you're out of State it's different. Why should the State have to yield?

The answer? A state has to have a good enough reason. Counsel mischaracterizes Kentucky’s reason as wanting a higher birthrate, adding, “which I daresay is not a rational justification, much less a sufficiently important one.”

Justice Scalia clarifies Kentucky’s statement, which counsel says is nevertheless reasoning rejected in the Loving case. Which brings another reminder (#4):

JUSTICE SCALIA: But we will not have rejected it if we come out the way this question presented assumes we have come out. …Mainly, saying that it's okay for a State not to permit same-sex marriage.

Counsel tries again, but he’s equating non-recognition to dissolution again, which the justices yet again ignore, and that brings another reminder (#5):

MR. HALLWARD-DRIEMEIER: The State asserts that it has an interest in the stability that marriage provides for children. That interest does not justify extinguishing marriages that already exist.

JUSTICE GINSBURG: May we clear this one thing. If the Petitioner prevails in the first case, then the argument is moot; right?

In an attempt to show that states traditionally accept one another’s marriages, counsel lists five instances in the three states involved in the suit failed to recognize a marriage from out of state that would not have been lawful in those states—including incest, an archaic refusal to allow remarriage after divorce. I think his point is that those reasons are not valid today. He gets another reminder (#6).

CHIEF JUSTICE ROBERTS: Yes. But, again, I think you're avoiding the presumption on which we're starting, on the assumption, which is that the State's policy for refusing to support same-sex marriage is sufficiently strong, that they can, as a matter of public policy, prohibit that in their own State. And yet you're saying it's somehow so much weaker when you're talking about marriages from other States.

Counsel tries to say that the failure to recognize illegal marriages would go against long-standing tradition. But he doesn’t address the elephant-in-the-room question, so Chief Justice Roberts spells that out:

CHIEF JUSTICE ROBERTS: It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State…. Because we live in a very mobile society, and people move all the time….In other words… one State would basically set the policy for the entire nation.

That is the basic reason for asking this question. States saw it coming. They reasserted their state sovereignty by enacting Defense of Marriage laws, and then following up even more strongly places the traditional definition of marriage in their state constitution.

Next comes some discussion, for comparison, of other types of differences in marriage law. This comes to low age of marriage, and whether that would be about consent, or other interests, or how they would be handled case-by-case. And counsel says again that most of the time states accept one another’s marriages. Which brings out some of the twisted logic involved here:

CHIEF JUSTICE ROBERTS: I think your argument is pretty much the exact opposite of the argument of the Petitioners in the prior case. The argument that was presented against them is, you can't do this; we've never done this before, recognized same-sex marriage. And now you're saying, well, they can't not recognize same-sex marriages because they've never not recognized marriages before that were lawfully performed in other States….

Counsel tries claiming that marriage is a fundamental right, and it has to be accepted. That brings on another reminder (#7):

CHIEF JUSTICE ROBERTS: And maybe…I'm just repeating myself, but we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage. So assuming you've lost on that, I don't see how your argument gets--you can't say that they are not treating the marriage as a marriage when they don't have to do that in the first place.

It’s all so unfair, counsel bemoans. He tries to say the cases shouldn’t be decided separately, because you “would forever relegate those marriages to second class status….” Justice Scalia says, “You’re rearguing Question 1 now?” which is almost another reminder, but we won’t count it.

Again, counsel equates non-recognition with dissolution. Again it doesn’t convince.

He thinks he’ll make progress with an actual example from among the plaintiffs:

MR. HALLWARD-DRIEMEIER: Mr. Matthew Mansell and Johno Espejo married in California in 2008. In 2009, they adopted two children. Now, in reliance on the protection that is afforded by marriage, Mr. Espejo was willing to give up his job to give the primary caregiver of their children. Mr. Mansell is the primary breadwinner. His job in an international law firm was transferred from California to Tennessee, and the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together. 

And in support of that, the States offer exactly nothing. There is no reason that the State needs to disregard that marriage. No reason the State needs to destroy the reliance that Mr. Espejo has had in giving up his career to look after their children.

There are several things wrong here. Most obvious should be that, if the relationship is permanent, as the couple claims, there is nothing in Tennessee law that destroys their family relationships. They are not prevented from living together; Mr. Espejo isn't forced to go to work. State law doesn’t prevent companies from offering insurance and other common spousal benefits; an international company probably would not change the insurance after such a transfer. Whatever was arranged for Social Security is unlikely to change, so that is not an issue. Tennessee doesn’t declare they are divorced when they enter the state; it declares nothing, but simply accepts that they are two people living together not recognized as a married couple.

So, what exactly destroys the family arrangement of Mr. Espejo staying home? I think the answer is, they would “feel” less connected if the state of Tennessee doesn’t recognize them. And, more importantly, Tennessee wouldn’t treat them as a married couple when they (inevitably?) divorce. Division of property would be dealt with in civil court, rather than family court.

Justice Scalia responds to the case with another reminder (#8):

JUSTICE SCALIA: It would have been the argument made with respect to the first question.

So, in summary of the plaintiffs'  (pro-same-sex “marriage” side), same-sex couples deserve to be married, even if states aren’t required to allow that (which can’t be an argument on this question), and states shouldn’t be allowed to terminate marriages without good reason (even though non-recognition is not the same as dissolving). It was pretty weak.

Now we get to defense. And here the constitutional question of the “full faith and credit” clause comes up. Justice Scalia brings it up, to get down to business. So, here is Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

The defense counsel for Question 2 is Joseph F. Whalen, who is, I believe, Assistant Solicitor General of the State of Tennessee. As with Question 1, defense counselor is well-prepared.

MR. WHALEN: Your Honor, this Court's cases have made clear that the Court draws a distinction between judgments between States and the laws of each State. And the reason in part that the Court's decisions have said that is that otherwise, each State would be able to essentially legislate for every other State.

So, then, the discussion must clarify definitions of public acts, records, and judicial proceedings, as opposed to laws and other things. For career justices, you think that would be almost automatic.

There’s an amusing discussion about what would happen if a state chose never to acknowledge marriages from other states. They clarify that, if the two states have the same laws, they will recognize, but if they do not agree, a state doesn’t have to recognize. Mr. Whalen references Nevada v. Hall as clarifying the issue. And he explains the underlying principle:

MR. WHALEN: I think the underlying focus is not just that there's a policy, but that there's a legitimate policy. And as this Court's questions earlier indicated, I proceed now on the assumption that the Court has decided the first question in the State's favor, and is determined that, indeed, the State's policy to maintain a traditional man-woman definition of marriage is, indeed, legitimate, and we obviously agree that it is, and the Court should so decide.

In other words, he doesn’t need a reminder about how Question 1 is assumed to be decided, when they come to this question.

JUSTICE GINSBURG: You're making a distinction between judgments--full faith and credit applies to judgments. You can't reject a judgment from a sister State because you find it offensive to your policy, but… full faith and credit has never been interpreted to apply to choice of law.

MR. WHALEN: Yes, Your Honor….And so, in in essence, by deciding whether or not to recognize another State's marriage, the State is deciding whether or not to recognize the other State's law under which that marriage was performed.

That is, in essence, what this question covers. And, the way Mr. Whalen puts it is very convincing; the law uses specific definitions of terms. There is history and precedent in how those terms are used. It’s a relatively simple question.

But Justice Ginsburg doesn’t like the simplicity. She tries to clarify a difference between licensing a marriage and recognizing a marriage.

MR. WHALEN: It goes, Your Honor, to the essence of what I think, in fact, both questions before the Court today get at. And that is that the fundamental notion of what marriage is.

He reminds the Court that the way states have historically recognized marriages from other states cannot be applied here, because the fundamental understanding of what marriage is was essentially the same before, but now marriage laws are not the same.

Mr. Whalen also successfully explains why marriage is more law than judgment:

MR. WHALEN: I think that the performing of a marriage is closer to law is because, in essence, when the marriage is performed, all the rights that flow from that State's laws evolve to that couple. And it's different than judgments and so does not deserve the same kind of treatment that judgments would, under the full faith and credit jurisprudence, because of the reason that this Court has drawn that distinction.

He refers, particularly for Justice Sotomayor (and kudos to him for doing so respectfully) to do some reading up on terminology, to Joseph Story's Commentaries on the Conflict of Laws.

There is a discussion of whether there is some middle ground; could a state not license a same-sex “marriage” but still not be so strongly against it that it can recognize such a thing from another state? A state could, of course, but the point is, it shouldn’t be forced to. Otherwise, people just go out of state to get “married,” and then come back to their state; the state wouldn’t have an enforceable policy.

Mr. Whalen makes a good point about who is doing what:

MR. WHALEN: The difference here, I think, is the landscape that we find ourselves in. Tennessee, Ohio, Kentucky, and other States with a traditional definition of marriage have done nothing here but stand pat. They have maintained the status quo. And yet other States have made the decision, and it certainly is their right and prerogative to do so, to expand the definition, to redefine the definition. And then to suggest that other States that have done nothing but stand pat now must recognize those marriages imposes a substantial burden on the State's ability to self-govern…. It would allow one State initially literally one State, and now, a minority of States, to legislate fundamental State concern about marriage for every other State quite literally. That's an enormous imposition and an intrusion upon the State's ability to decide for itself important public policy questions, and to maintain, particularly when you're talking about recognition.

He gives an example of the type of public policy that would be affected. Parenting, in Tennessee has always been gender based, because of man-woman marriage. A child can’t have two fathers or two mothers, for example. Removing gender terms would affect many aspects of public policy. Why should a state be forced to make such a drastic change, just because some other state chooses to?

If you have read this far, congratulations. This three-part series has probably been longer than anything written on the oral arguments other than the transcript. I’ve gone through this exercise to thoroughly understand, myself. And also to have a good record of what went on, and what it meant.

I don’t know how the Court will rule by the end of June. If they go by the Constitution, the law, the will of the people, and common sense, they will sustain the right of states to define marriage as it always has—a bonding of a man and a woman. But if they listen to the gay mafia, the media pressure, and the whining about “fairness”—that all have no place in ruling on what the law is—then we could lose some significant freedoms. Eventually that could include the ability to write a blog like this without it erroneously being deemed hate speech.

I’m praying particularly for Justice Kennedy. The family, which is the basic unit of civilization, is balanced on the knife edge of his personal understanding of the law. We’re in a precarious place indeed.

Unique Markets

During last week’s Supreme Court oral arguments concerning Obamacare, last Tuesday the discussion covered why health insurance would be a unique market and therefore in need of government intervention. So we’ve been discussing this definition at home the last few days. And my son Political Sphere, as an exercise, took the definition for unique market and applied it to yet another “unique” market. Let’s lay some groundwork for the definition first. Page numbers refer to the official transcript.

Verrilli (the government lawyer defending Obamacare) says healthcare insurance unique because it is characterized by the fact that virtually everybody “is either in that market or will be in that market, and the distinguishing feature of that is that they cannot—people cannot generally control when they enter that market or what they need when they enter that market (p. 5).

Justice Roberts answers:

Well, the same, it seems to me, would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance, whatever.

You don’t know when you’re going to need it; you’re not sure that you will….

So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? (pp. 5-6).

Verrilli responds that the difference is that insurance is a market, which isn’t a particularly helpful distinction. So Justice Alito adds another analogy:

Do you think there is a market for burial services?.... Suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and said: You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money to pay for it, you’re going to shift that cost to somebody else. (pp. 7-8)

Justice Scalia helps refine the definition by asking about food: “Could you define the market—everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli” (p. 13).

Verrilli responds that, while everyone participates, “it is not a market in which your participation is often unpredictable and often involuntary” (p. 13).

A couple of pages down, Verrilli responds overall to these other markets: Verrilli (p. 15-16):

I would have thought that your answer—can the government, in fact, require you to buy cell phones or buy burial that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, Ship Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could (pp. 15-16).

So, in sum, the health care market is unique because

·         Everyone participates at some point.

·         Timing of need is not necessarily predictable.

·         There is a primary system of paying for the product/service, which is therefore subject to commerce regulation.

·         There are free-riders who affect the cost for participants in the market.

If healthcare insurance is unique, then it is the only market that meets the criteria, so we wouldn’t have to worry about encroachment of government in other markets. But Verrilli already admitted other markets could be construed to also be unique.

So, here is Political Sphere’s application  of the definition on yet another market: housing.

Does the housing market have free-riders? Absolutely, in more numerous ways than the health care market. You have various versions of squatter laws; you have rent controls limiting price increases on those already renting; you have delinquencies and defaults on mortgages. And laws generally make it a long process to kick out someone that has current residence in a property.

Does almost everyone use it at some point in their life? Again this is an obvious yes, perhaps even more true than health care, because even people who, by choice, live on the streets often lived in a house once.

And because these two items are true, what can be mandated? The payment mechanism for the majority of housing (all housing, not just private residences) is to have a mortgage. So by this argument, if the Congress can mandate that everyone has health insurance to pay for their health care, then it only stands to reason that Congress can mandate everyone have a mortgage to pay for their housing.

Since there are four items on the list, let me add, just to be thorough, that choice about needing shelter can also be somewhat unpredictable, even for the homeless; severe weather makes the need urgent, and weather, while seasonable, can be unpredictable. But since ancient times, shelter has been considered a basic need, up there with air, water, food, and clothing. You can choose to go without for a while, but when the blizzard hits, you might suddenly find camping under open skies untenable.

Unique still means one of a kind, unike all others, right? As Inigio Montoya would say, “You keep using that word. I do not think it means what you think it means.”

Eventually, Justice Kennedy pointed out our mistrust of the “unique market” argument: “And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique” (p. 104).