SOGI Laws Discriminate Against Religious People

The acronym SOGI stands for sexual orientation and gender identity. There’s a movement—going on now for over a decade—making its way through international NGOs (non-governmental organizations) and into societies.

Yogyakarta Principles logo

Back in 2006, November, there was a four-day conference in Yogyakarta, Indonesia. The purpose was to draft a set of statements connecting human rights concepts with new ideas concerning sexual orientation and gender identity. A few months later their 29 statements were revealed at a UN Human Rights Council in Geneva: The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.

If it seems like these ideas have rather suddenly appeared practically everywhere you look, that’s been intentional. They put their fingers into education, religion, health, housing, business—practically everywhere. If your ideas have changed since 2007—or, more likely, you’re noticing changes in the views of people around you, maybe especially millennials and younger—that has been the purposeful manipulation of language and society from these Yogyakarta Principles, which have, as Daniel Moody put it in a 2017 piece,

throbbed away in the background, shaping the terms of legal debate more by association and insinuation than by formal adoption, with the ideas therein gradually becoming the loudest voice in the conversation.

In short, the change in views isn’t organic; it’s been inculcated. It’s not about research or enlightenment; it’s about indoctrination. And it isn’t about changing hearts to lead to greater equity, but binding laws coercing behavior regardless of sovereignty; it’s about power.

Without the infiltration of these ideas into our society, would the US Supreme Court have ruled to redefine marriage in 2015 in Obergefell? Probably not. The questions brought up at that time—about the harm to religious people who would still hold to the millennia-old definition of marriage—were acknowledged by Justice Kennedy, but were ignored with no more than a shrug of the shoulders.

Since then, people are literally persecuted—bullied, publicly shamed, prosecuted, put out of business—for holding to the fact that marriage is about the permanent commitment of a man and a woman for the sake of possible offspring.

As Ryan Anderson, author of Truth Overruled, says, “SOGI laws imperil religious liberty, privacy, economic freedom, and child welfare, creating more problems than they aim to resolve. They are a solution in search of a problem.” https://www.dailysignal.com/2015/07/23/how-so-called-equality-act-threatens-religious-freedom/

Texas Legislature Online home page

We’re not immune, even here in the free state of Texas. During this legislative session we’re facing a number of SOGI bills, attempting to codify discrimination against religious people, but disguised as “anti-discrimination” bills. If you’re in Texas, these are bills to oppose; outside of Texas, watch for these ideas to show up in your laws:

·         SB 153 (and companion bill HB 978) requires gender-neutral language in marriage licensing.

·         SB 151 (and companion bill HB 244, as well as similar bill HB 254) is a general SOGI bill; it prohibits discrimination based on sexual orientation or gender identity or expression. It includes a $100 per day fine for any violation.

·         HB 850 prohibits employment discrimination based on sexual orientation or gender identity or expression, without regard to what the employer does and what image that employer wants to present to the public, and it includes Christian-owned or other religiously led businesses.

·         HB 188 prohibits housing discrimination based on sexual orientation or gender identity or expression. That means that religious colleges and universities can be forced to allow biological males to sleep next to women in dormitories. Same for religious homeless shelters for abused women.

·         HB 517 (and duplicate HB 1190) prohibits counseling related to sexual orientation or gender identity of a child—unless it is to encourage homosexuality or transitioning as the treatment for gender dysphoria. In other words, it allows only the SOGI-preferred type of counseling and criminalizes anything else—even when the patient wants other counsel. Even providing overwhelming science and research that refutes the pro-LGBT views would be illegal to provide.

·         SB 154 (and companion HB 1835) forces doctors to change vital records, against conscience, concerning name and sex changes.

·         SJR 9 (and companion HJR 64) attempts to repeal the Texas Code definition of marriage as one man and one woman—ignoring the will of the people of Texas to align with the five Supreme Court justices who extra-constitutionally imposed a new definition on us.

It’s still early in the legislative session, but so far these SOGI bills are not progressing. Senate bills have been assigned to committees (to State Affairs), but only a few House bills have been assigned to their various committees.

Meanwhile, there are some bills intended to prevent damage to religion freedom. If you believe in the God-given First Amendment right of freedom of religion, these are bills to support:

·         HB 1035, the “Free to Believe Act,” is intended to protect freedom of conscience from government discrimination. This would protect from most of the bills we’re against, because all those try to wield government power against religious believers.

·         SB 85 is intended to protect counselors who refuse to provide services against their beliefs.

·         HB 2109 grants the right of recusal from performing marriage ceremonies that go against the official’s religious beliefs.

Only the Senate bill has been assigned to committee. Committee assignment is done mostly in order filed, so higher numbers will take longer. That means we don’t know how they’ll do once they get debated.

At any point, it’s worth contacting your state representative and state senator, to let them know your views on these issues, and to encourage them to sign on as co-authors or co-sponsors to bills you support. Once the bills are in committee, then contacting committee members is worth doing. You can follow all of these bills on the Texas Legislature Online site. I’ve linked the bills to that site. You can also go there directly: capitol.texas.gov. 

If having the freedom to believe what you believe is important to you, and you don’t want that taken from you because of some international NGO agenda, then this is a time to stand up and use your voice.

Great Words from a Great Mind

It’s President’s Day, so I thought I’d share a few favorite quotes from the greats: George Washington and Abraham Lincoln. I’ve done that in past years, however [here and here]. And, while they’re worth repeating every Presidents’ Day, with the death of Justice Antonin Scalia this past weekend, I’m changing plans and quoting him instead.

Justice Antonin Scalia
image from here

He was quotable in interviews and speeches, and maybe regular life. But many of his memorable words come from SCOTUS decisions, particular his dissents. Here are a few.

In reference to the bad decision on King v. Burwell, June 2015, which upheld the Obamacare question concerning state exchanges:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so….

This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B….

If the subsidy would be given for any exchange, then it would be odd to keep referring to the subsidy coming in relation to a state exchange under §36B. There are places in the vast law, cited by Justice Scalia, that refer to both the state exchanges and those provided by the secretary of HHS, and sometimes together those are referred to as “exchanges,” but never in relation to §36B (the subsidy, dealing with the IRS). Every time the subsidy is referred to, the full phrase includes “state exchange” and the reference to the part of the law. Not just a time or two, but I believe it was seven times. That’s not an accident; it’s clearly to delineate when such a subsidy can be given.

Here is one of the more important lines:

Words no longer have meaning if an Exchange that is not established by a State

is “established by the State.”

There’s more:

Perhaps sensing the dismal failure of its efforts to show that “established by the State” means “established by the State or the Federal Government,” the Court tries to palm off the pertinent statutory phrase as “inartful drafting.” This Court, however, has no free-floating power “to rescue Congress from its drafting errors.”

And,

They made Congress, not this Court, responsible for

both making laws and mending them.

And this memorable line:

We should start calling this law SCOTUScare.

And this:

This Court’s two decisions on the Act will surely be remembered through the years…. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.

Justice Scalia speaks at Roger Williams University
law school; image from here

I came across this next quote in a PJMedia piece today. It concerns a 1996 free-speech decision, which I believe was to overturn a ban on internet pornography. Scalia wrote in his dissent:

The court must be living in another world. Day by day, case by case,

it is busy designing a Constitution for a country I do not recognize.

Justice Scalia had plenty to say following the Court’s invention of a right for same-sex couples to marry each other, in his Obergefell v. Hodges dissent:

So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

And further in:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.

Followed by:

Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

And to put a finer point on it:

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Justice Scalia was nominated by President Reagan in 1986. He was completing his 29^th session on the Supreme Court this year. I’ve mainly quoted from a couple of recent opinions. There should be books—and probably are or will be—documenting his opinions. And probably more books retelling his wit and wisdom. Those of us who love our country and our Constitution feel a bit bereft right now. We needed him on the Court.

Cartoon by A. F. Branco

As for replacement, the speculation is just beginning. There is plenty of precedent to avoid seating a justice in the last lame-duck year of a presidency. Replacement this far into the term—near the time when opinions are beginning to be written, and most briefs read and considered—is too late for a new justice to come up to speed. Cases resulting in a 4-4 ruling can be reheard in the next term. It is better to have the Court down a number than to have cases badly settled by an unprepared guess.

The next term begins again in the fall, just before the election. There is no hurry from either party to grant the power to name a new justice to an outgoing president, instead of the one to be sworn in in January. A new president can be ready to name a replacement immediately, allowing maximum time for serving in the coming term.

To those of us who valued Scalia’s adherence to the Constitution, it is imperative that we have a justice who reads, understands, and abides by the law, rather than wavering according to the whims of the time.

Postponing the appointment gives us reason to hope. But it depends on the Senate standing firm. Scary thought. But that is what we must pray for. That, and a next president who knows what to look for in a justice.

How Five Justices Made Marriage Unconstitutional

Guest Post By Political Sphere

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

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

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

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

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

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

The Chief Justice explains more fully in his dissent:

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

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

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

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

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

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

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

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

---

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

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

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

^[iv] Obergefell, majority opinion at 12

^[v] Id.

^[vi] Id. at 13

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

^[viii] Id.

^[ix] Id.

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

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

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

^[xiii] Id.

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

Duty to Resist

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

Rowan County, KY, Clerk Kim Davis goes to jail

photo made available by 

Carter County Detention CenterZUMA Press/Newscom, found here

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

At least Kim Davis is making us ask the question.

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

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

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

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

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

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

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

Getting It Wrong, Part II

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Society has been duped.

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

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

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

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

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

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

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

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

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

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

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

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

Millennia of Marriage, Part 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.