By Bob Bennett
On May 2nd I wrote a piece titled “Gay Marriage Lawfare: Another Front in the War on Christianity.” That was the week the Supreme Court heard arguments in Obergefell v. Hodges, which asked the Court to redefine marriage.
I pointed out that this decision was not intended to benefit gays; it was in reality a D-Day–style assault on Christianity. We certainly must view this move in the context of the White House’s attack on that invidious group, the Little Sisters of the Poor, Obama’s steadfast refusal to even mention the mass murder of Christians in the Middle East and Africa, and the State Department’s refusal to allow refugee status to all but a few Christians fleeing the Syrian civil war.
Strangely, when Obama took office, in 2009, the first states’ legislatures, Vermont and New Hampshire, enacted laws revising the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. The District of Columbia did likewise.
In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maryland allowed same-sex marriage by referendum; on the same day, Maine made the same change, reversing the result of a referendum, just three years earlier, upholding the traditional definition of marriage. Eleven states in all and the District of Columbia chose to allow same-sex marriage.
Then, SCOTUS ruled in Obergefell v. Hodges on June 26, 2015 that all states must follow suit—a clear incursion into the authority given to the states—and the people, by the 10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Chief Justice Roberts strongly dissented, even reading part of his dissent from the bench, something he has never before done.
The majority opinion, written by Justice Kennedy, defies the 10th Amendment, citing the authority of the 14th Amendment—which was drafted to erase the vestiges of slavery. But that amendment has been perverted more than once to serve the Left: the first clause in its Section 1 has been contorted to justify birthright citizenship.
Kennedy used another provision in Section 1 to justify the Obergefell decision: the Due Process Clause, which says: “nor shall any State deprive any person of life, liberty or property without due process of law.” Kennedy writes, “The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights.” But he ingeniously uncovered other rights concealed in the Bill of Rights: “In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”
That Clause also has a history of misuse by the Left.
In 1973, the Court discovered an unsuspected right to privacy hiding in the same clause. Moreover, that privacy right included a woman’s right to abort a child.
To accomplish that, SCOTUS had to establish that the word “person,” as used in the due process clause and in other provisions of the Constitution, did not apply to the unborn child, which therefore was not entitled to constitutional protection. It also determined, after a “lengthy historical review of medical and legal views regarding abortion,” that laws against abortion “were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review.”—Justia
Today, in its frenzy to help the president shape the New America, the majority in Obergefell ignores the long “historical foundation” of marriage being between a man and a woman—as Chief Justice Roberts put it, “The Court…orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” He asks, “Just who do we think we are?”
Roberts explains that the gay couples who launched this suit “do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. They “argue … that the laws violate a right implied by the Fourteenth Amendment’s requirement that ‘liberty’ may not be deprived without ‘due process of law’….
What the Left loves about activist courts is that they can rapidly make major change—even if their reasoning makes no sense. Roberts declares the majority is “remak[ing] society according to its own ‘new insight’ into the ‘nature of injustice.’ ”
And it does this—not because a fundamental right has been violated—as when blacks were segregated; it does it because an invented right has been violated.
“Allowing unelected federal judges to … strike down state laws on the basis of that determination—raises obvious concerns about the judicial role,” he writes.
Thus, the Supreme Court rushes headlong into an area it has only strayed into before, an area where lesser courts have long cavorted: Judicial Tyranny.
Some thirty states had amended their constitutions to define marriage as between one man and one woman. A number of these were pursuant to referendums of the people.
Other states decided that same-sex marriage should be permitted. Roberts says, “When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.
“But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision.” Roberts warns: “There will be consequences to shutting down the political process on an issue of such profound public significance. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”
We are already seeing consequences, as we shall see, further on.
Kennedy also thinks he has the authority to rewrite the First Amendment, the one the Left so fervently hates, when those with whom it disagrees use it.
The First Amendment declares:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
But Justice Kennedy says:
“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.”
Chief Justice Roberts warns, “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1.
“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage.…. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
The consequences the Chief Justice predicted may be coming to pass: A Kentucky county clerk who exercised her religion by refusing to issue marriage licenses to gay couples has been bullied, threatened, and now imprisoned for her faith. Her objection is rooted in the fact that her signature appears on all marriage licenses, so she would be personally authorizing what is forbidden under her religious beliefs—and those of millions of others.
Two other clerks in Kentucky have refused to issue licenses to gay couples. A group of Magistrates in North Carolina have also refused to issue such licenses, and a lawsuit was filed in their behalf. It was “withdrawn when the Republican-controlled Legislature overrode a veto by the state’s Republican governor, Pat McCrory, and enacted a law allowing them to refuse to aid such unions,” reported the NY Times. Utah has a similar law.
The AP reports over 30 magistrates refusing to perform same-sex unions. Liberty Counsel has represented all of these clerks, as well as a clerk in Texas, and also a number of probate judges in Alabama, where at least 11 counties are refusing to comply with the SCOTUS ruling.
USA Today reports “A federal court in July compelled Hood County Clerk Katie Lang to issue a license to Granbury residents Joe Stapleton and Jim Cato; Texas law also requires clerks to record marriage licenses. By the time that case was settled, county taxpayers had to foot a $43,000 bill, according to the Dallas Morning News.
“Lang still doesn’t agree with same-sex marriage and says so on her website but is allowing deputies in her office to issue the licenses, something that Davis objects to because the certificates bear her name as an elected official.”
It’s patently clear that the intention is to compel every person to accept the legality of same sex marriage, or pay the price. The next target will be churches, to revoke their tax exemption.
It’s been said that the county clerks have the duty to obey the law. The very highest law in the land is the Constitution. And the Constitution protects those who choose to exercise their religion.
SCOTUS has the duty to obey the Constitution. The Court does not have the right to overrule state law in this instance, and it does not have the right to amend the Constitution. Having our nation ruled by a runaway court—so defined by its own Chief Justice—is only a cut better than having it ruled by a runaway president—and not better at all, when it’s carrying out his agenda.
Bob Bennett is a New York-based writer who has written op-eds for the Wall Street Journal and the NY Post, and has appeared on Fox and Friends and America’s Newsroom. He has traveled widely and written travel pieces for the NY Post, a cover article for the Jewish Press, and an op-ed for the medical journal Cancer Biotherapy & Radioimmunotherapy. Bob was also award-winning producer of a travel radio show heard on New York stations: WMCA, WNWK and 50,000 watt WOR and the national Sky Angel Network. He now blogs on Tea Party Nation, Tea Party Community and Red State Diaries.