IN THE LIGHT of the Supreme Court Decision:
Same-sex Marriage and the Death of the 1st Amendment.
On Friday morning, June 26, 2015 I received the 102 page Supreme Court decision on same-sex marriage and began combing through the majority decision and the dissents. After a few hours I posted the results and a short summary of the dissent which was made by four of the justices, including the Chief Justice, John Roberts. In no opinion and in no dissent was there any attack on homosexuals; in fact, the dissent said the reasons of the Petitioners for wanting same-sex marriage was “compelling.” But the dissenting justices were outraged by the majority that made law in all fifty states (not just the states involved in the case) calling same-sex marriage protected by the Due process clause and the Equal Protection clause of the 14th Amendment. I agreed.
That said, it took about fifteen minutes for me to be lumped into a pile of people who disagreed with the decision for any reason whatsoever, and called a “hater” and a “bigot.” In fact, anyone who disagrees with this decision is being called by same-sex marriage supporters as just that, “haters” and “bigots.” I assume this means the four dissenting judges as well. I find it ironic that those (same-sex marriage supporters and the LGBT)whose mantra yesterday was that of “tolerance” are so completely “intolerant” to any opinion other than their own.
So, to that I ask, “Who is a hater?” Is it me because I don’t agree with this decision or is it those who agree with the decision and don’t want to enter into any dialogue and don’t want to look at or think about anyone else’s “rights” they may be treading on?
The treading on of the 1st Amendment and the rights of religion
Contrary to what many people think, this case as decided does not simply “protect” the rights of homosexuals to marry. Rights are not granted in a vacuum. This decision infringes upon the rights of the 1st Amendment, the freedom of the exercise of religion. That’s right, express rights have been taken away in one swoop! This Court found this right to marry for homosexuals somewhere between the lines of the 14th Amendment in the essence of the due process and equal protection clauses. But the 1st Amendment is “expressed” law. The 1st Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
In what way did this same-sex marriage decision take away religious rights?
Let me start very simply. Immediately after reading the decision I advised Pastors and Churches to stop charging to do a wedding. I will get to the reasons why in a moment, but a friend of mine, a lawyer whose opinion I find valuable said to me that if the Church disagrees (with marrying same-sex couples), they should get out of the business of performing civil marriages.
Now, after more than 200 years as a nation, the church “should get out of the business of performing civil marriages.” Why? Because he and I both know that a church that charges to do weddings is opening the door for a lawsuit against them for discrimination based on this Supreme Court’s reading of the 14th Amendment.
Let me explain a little more. Prior to 1967, many people believed that interracial marriages were wrong-and they were wrong for religious reasons-this was their reading of the Bible. But in ’67 the Supreme Court found that interracial marriages were protected as a right under the 14th Amendment. Shortly after that, businesses could not object to serve an interracial couple, even for religious reasons. And I cannot foresee that the Supreme Court is going to treat businesses any different when objecting to serve same-sex couples. The reasoning of the Court is very much the same.
Therefore, if a church treats a marriage like a business arrangement, and they charge for the marriage service, they will open that door for a lawsuit based on the same reasoning if they should refuse to marry a same-sex couple.
And what about the businesses, the cake baker, the flower arranger that refuses to serve based on their religious belief? All the handwriting on the wall points to a lawsuit where your belief loses to 14th Amendment. It is not decided yet, but I can’t see how this court rules any other way.
What about Christian Colleges…can they refuse entrance to same-sex couples?
The short answer is actually yes, but there are severe consequences. In 1983, the Supreme Court held that the IRS could take away the tax exempt status of Bob Jones University because they did not allow the entrance of interracial couples into their Christian University because of a sincerely held religious belief that races should not intermarry. With that loss, the government also refused to provide any financial aid to students attending.
So, what will be the outcome of Christian Universities that refuse same-sex couples entrance? It appears that it will be the same. And can the college survive economically if they lose their tax exempt status and their federal aid?
Some may say that I, and the Christian university can still have my religious belief. But can I really? If I want to send my son or daughter to a university that will teach them what I understand the Bible to say, will I be able to?
Again, some may say that I am free to pay for that education. But what is happening is the law and taxes and federal aid is favoring a “secular” education, giving aid to secular belief and denying Christian education. Some may yet say that the government (law, taxes, aid and the courts) is NOT denying Christian ed, they are simply not aiding discrimination. In other words, the government is deciding what Christian belief I can and cannot hold! Is this what this country is founded on? Is this the freedom of religion?
And to the churches? Will there be consequences when a church refuses to baptize or refuses communion or refuses to put a same-sex couple in leadership?
At this present time there is no precedent that holds that a Pastor must marry an interracial couple, so it can be assumed that there is no current mandate that a Pastor must marry a same-sex couple. Again, let me emphasize “at this time.” There is also no such mandate for baptizing, or communion or leadership. I do not see this becoming an issue, but if you would have asked me about this decision 20 years ago, I would not have seen it either.
The Supreme Court made a statement about the freedom of religion in this decision.
The majority (5 justices) perhaps wanted to quell fears that this decision was encroaching on the freedom of religion. So, in the opinion of the court, Justice Kennedy wrote (and the other 4 of the majority agreed):
“it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing samesex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” (page 27 of the decision).
Do not let these words fool you. Chief Justice Roberts was not fooled by them and in his scathing dissent he wrote: “The majority’s decision imposing samesex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.” (page 28 of Robert’s dissent).
As CJ Roberts says, the guarantee of the freedom to “exercise” religion is ominously missing from the majority.
This decision takes away “rights” of religion even while it purports to provide “rights” to homosexuals.
So, this case is not about freedom, not entirely. Because the freedom afforded today to same-sex couples have cost me mine.
And for me expressing my freedom in conversation, just like Justice Kennedy said could continue to happen…I was called a hater and a bigot. Somehow, that does not sound like an “open and searching debate,” Justice Kennedy. Nor does it sound like tolerance.
[Disclaimer: Although trained as a lawyer, I am no longer practicing. I now live and work as a missionary in Bolivia. The above is NOT legal advice.]
This is the first article in a series called IN THE LIGHT.