Did Obergefell just rewrite the First Amendment?
That is, with respect to the free exercise clause, has Kennedy and the majority just left us now with a Bill of Rights containing, in order, a 3/4th Amendment, a Second Amendment, a Third Amendment, etc? A lot of people fainting onto their blogging couches today seem to think so, finding evidence for it both in Kennedy's reference to religious liberty and even in the words of the four dissenting Justices.
But Obergefell simply wasn't about the First Amendment or religious liberty, it was about a federal right to gay marriage. Like many badly built thought structures - ::coughObamacarecough:: - Obergefell almost certainly contains deformative logic bombs which will continue to detonate at later times, more likely unpredictably than predictably, and, as I continue to argue, very, very likely with predictable consequence to Obergefell itself as a legal precedent.
But while, of course, Obergefell has immediately set up imminent clashes with religious liberty protections under the First Amendment - duh...that's what legal logic bombs do - that is patently not the same thing as a claim that the former has now effectively trumped and subordinated the latter (I had originally written "not the same thing as suggesting that", but that is patently what it is: mere suggestion, preying upon suggestibility).
Still, like my grocery list (ribeye steaks, Macallan 12,...), First Amendment constitutional protections of religious liberty remain just words on a piece of paper until someone acts on them one way or another. I usually find that, if I don't make it a point to buy my groceries myself, those words just continue to lie there and I don't get to enjoy their promise.
If you believe Obergefell has immediately and directly threatened or curtailed your separate First Amendment religious rights, let's hear about it.
And if you think, as I do, that religious liberty questions will always be their own, separate and distinct battles, let's hear your arguments as well.
UPDATE (as they say): Unifying marriage, or fun with logic bombs.
This is entirely tangential to the thrust of this post, but I'm sticking this addendum here anyway. The question is, if the courts can unify marriage federally with respect to gender, on what basis could any state still argue its primacy with respect to any other discriminating marital provision such as blood tests, waiting periods, expiration of marriage licences, etc?
UPDATE 2 (also a non-sequitur):
Q: Why are people terrified of doing to Scientologists what they'll cheerfully do to Christians?
A: Because they know that Scientologists will legally tear your legs off and beat you to death with them for trying while Christians will simply take it.
That's an easy one, Keith. Sure, there will be battles, but the battlefield will be all uphill for those seeking religious liberty.
ReplyDeleteThe Court has already come up with an "analytical" tool when the First Amendment comes up against the favored ideology. Now that the Constitution, logic, and precedent have been tossed aside for the topic of SSM, my prediction is that the same tool will be applied against the Free Exercise clause in this situation as is used in the abortion counseling cases:
Justice Scalia succintly describes that tool:
There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v. Colorado, 530 U. S. 703 (2000) ; Madsen v. Women’s Health Center, Inc., 512 U. S. 753 (1994) .
And the case for "an entirely separate, abridged First Amendment" that will be applicable when the topic is SSM will be even stronger than that in the abortion context. Roe v. Wade and its progeny have always had some type of regulatory "undue burden" balancing scheme in play. SSM has no such state interest limitation -- it's a fundamental right now, baby. Get out of the way.
I agree with C.J. Roberts that Kennedy's gratuitous "let them eat cake" bestowing of the ability to still "teach" and "advocate" for one-woman/one-man marriage is not comforting but is ominous. If we still had a First Amendment that meant what it says (and as a textual right should trump newly discovered "rights"), Kennedy's statement would have gone without saying. It's the saying of it that is the ominous part.
That's an easy one, Keith. Sure, there will be battles, but the battlefield will be all uphill for those seeking religious liberty.
DeleteFor any using the language of "seeking religious liberty" in lieu of an understanding of asserting a religious liberty they already inherently possess, perhaps David French's words will prove more rallying than amine. Of course, this is all pure Murray Option:
All of this is worrisome, and all of it should be resisted, but none of it represents an existential threat to the church. The only real threat is surrender — caving to the cultural, legal, and political forces demanding conformity. The church can and will survive persecution. It will not survive faithlessness. This is both a theological and historical truth.
Defiance, however, means more than merely ensuring that your church or your Christian school doesn’t change its policies. It means more than still donating to your church even if the day comes when you can’t deduct the contribution. It means a willingness to lose your job, your prosperity, and the respect of your peers. It means saying no every time you are compelled to applaud or participate in the sexual revolution. It means standing beside fellow Christians who face persecution or job loss — not just shaking your head and thinking, “There, but for the grace of God . . . ” It means having the courage to proclaim an opposing message — even during mandatory diversity training, even when you fear you might lose your job, and even when you’re terrified about making your mortgage payment. And through it all, it means being kind to your enemies — blessing those who persecute you.
But being kind to one’s enemies does not mean surrendering to them. I’ll never forget the first time I feared for my job because of my faith. In the midst of my first major religious liberty case — defending a small, rural church against a plainly unconstitutional government action — a senior partner at my firm called and demanded that I drop the lawsuit. He believed the firm’s reputation would suffer for representing an Evangelical church. As a second-year associate, I had no power or standing to defy his order, so — after discussing it with my wife and pondering my own mortgage payment — I summoned up my courage, walked into the managing partner’s office, and simply and respectfully said, “I’m not withdrawing from the case. I understand if you feel like you have to fire me, but I can’t abandon the church.” To my immense relief, I kept my job — and the case, which ended up launching my constitutional career. (continues)
I tell that story not to proclaim myself as a model for others — I have more than my share of failings, and that small act of defiance hardly merits mention — but simply to say that this is an old problem. Even in the U.S., Christians who’ve not yet faced these tests likely will, and soon. When they do, it is the church’s responsibility to ensure that they not do so alone. As the church stands, it must remember that our present troubles are meaningless compared to the deadly challenges facing the church in the Middle East. And, always, we must remember who controls our destiny.
DeleteFrom a related linked article:
For many believers, this new era will present a unique challenge. Christians often strive to be seen as the “nicest” or “most loving” people in their communities. Especially among Evangelicals, there is a naïve belief that if only we were winsome enough, kind enough, and compassionate enough, the culture would welcome us with open arms. But now our love — expressed in the fullness of a Gospel that identifies homosexual conduct as sin but then provides eternal hope through justification and sanctification — is hate.
Christians who’ve not suffered for their faith often romanticize persecution. They imagine themselves willing to lose their jobs, their liberty, or even their lives for standing up for the Gospel. Yet when the moment comes, at least here in the United States, they often find that they simply can’t abide being called “hateful.” It creates a desperate, panicked response. “No, you don’t understand. I’m not like those people — the religious right.” Thus, at the end of the day, a church that descends from apostles who withstood beatings finds itself unable to withstand tweetings. Social scorn is worse than the lash.
Yes, Keith, a thousand times Yes.
DeletePericles told us as much long ago: "For all claims from an equal, urged upon a neighbor as demands . . . have only one meaning, and that is slavery."
Kindness indeed does not mean surrender. But surrender means slavery.
And I found those words rallying despite denying that I am "using the language of 'seeking religious liberty' in lieu of an understanding of asserting a religious liberty they already inherently possess".
DeleteAnd speaking of ominous promises in Supreme Court majority decisions written by Anthony Kennedy, Scalia's dissent in the Texas sodomy case is well worth re-reading in light of Obergefell, particularly this passage (internal cites removed, emphasis added):
ReplyDeleteOne of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,”...; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Since the Kennedy decision wasn't a legal decision, because it wasn't based on any precedent, we are all free to read into it whatever we wish.
ReplyDeleteI foresee (a) chaos in family law with California Law SB 274 adopted as the law of the land (link below) and (b) a Fall offensive relating to transgender issues.
Another prediction: NY State will legalize commercial surrogacy. The US is the only western country to have commercial surrogacy. All western countries ban it, but the US, with a powerful gay lobby allied with powerful capitalists, will legalize it in all 50 states.
http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0251-0300/sb_274_cfa_20130617_102905_asm_comm.html
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB274
I agree, Dee. The Obergefell decision will have ramifications that extend far beyond SSM because of the damage it did to substantive due process "jurisprudence", such as it was, by removing one of the few barriers that was holding judges back:
DeleteIn Obergefell, Justice Kennedy made it clear to lower courts that, after he eliminated Glucksberg, the only remaining limit on new judge-made rights is a judge’s imagination.
Pik, your quote stopped short. Allow me to finish the paragraph from where you stopped.
DeleteHe noted that “when new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim for liberty must be addressed.” In other words, he believes that since the Founders “did not presume to know the extent of freedom in all of its dimensions,” they gave courts unlimited power to “protect . . . the right of all persons to enjoy liberty as we learn its meaning.” The “we” in that sentence refers to judges.
The obvious question is why would Christian conservatives not be equally available to benefit from such newly discovered liberties positively applicable to them, even if such discovery required some legal or extra-legal nudging on the part of those Christian conservatives themselves?
On the other hand, there's simply no way to argue or address cynically despairing Dreherism wherever it might appear. The only remedy is to hand the victim a Kleenex.
...why would Christian conservatives not be equally available to benefit from such newly discovered liberties positively applicable to them...?
DeleteGood point. Those battles should and must be joined, and using the precedent that has now been handed down as you point out.
To answer the question of "why would they not": because it depends solely on the ideology of the decision-makers, and that ideology is on the wrong side. And since "politics is downstream from culture", as Andrew Breitbart said, the ideology will be on the wrong side for some time to come, IMO.
We will need to be in this for the long haul. But contrary to Dreherist BOp, we must continue to fight along the way.
And on the coming battles, here's something to keep in mind, from an actual Benedictine (emphasis in original):
ReplyDelete...many conservative responses to Obergefell v. Hodges that I’ve seen have focused on the dangers to Christians in the coming extension of the Culture War. Mind you, I think that these dangers are real, but again this reality isn’t going to be altered by me fulminating about it.
But the curious things about the Supreme Court ruling is this: if the resulting deformation of marriage really is about a false understanding of the nature of marriage, then the Court’s ruling will also harm precisely the persons that it is intended to help. This is just an inference from everything I’ve said so far. How will it hurt them? I have no clear idea at the moment. Nor do I wish to cook up a prophecy about what sort of harm is coming. But if this is true, then my concern should also be for my fellow Americans, providentially given to me by God for our mutual salvation, who embrace this new reality, even when they have the for the best possible intentions. Again, I would not attempt to walk up to a gay couple and baldly assert this and use it as grounds for them to renounce their marriage. I merely raise the issue to point out that it is possible to broaden our thinking about the situation in such a way as to keep from falling into the same adversarial stances that typify American public debates.
And even if it should come about that we suffer in some way for our beliefs, even this is more harmful, from the standpoint of faith, to the aggressor than to the victim.
RTWT, as they say.