Benedict Option? "I think he deserves an answer."

Yes, indeedy.

Happy Independence Day! You, too, marriage!

Is this an example of the Benedict Option? Well, really, why not?

Fact-based criticism of the Benedict Option

Found this via Twitter. Good stuff with regard to why the Benedict Option would be no protection for the Faithful. Excerpt:

In any case, St. Benedict wasn't running away from an oppressive state. Had there been a state wanting to stamp out monasticism, he would have been a sitting duck. The Protestant rulers of Ireland found it extremely difficult to impose Anglicanism on the hearts of the people, but childishly simple to burn down the monasteries. Later there were secret seminaries, but even this had to wait for the persecution to move into a less militant phase.

St. Benedict is the wrong model; his was a capital-intensive approach to preserving learning and Catholic orthodoxy. We are going to need to be lighter on our feet. St. Edmund Campion and St. Oliver Plunket are the people to study. The exiled institutions, the secret printing presses, the underground Cathedrals, the network of trusted Catholics, and a resistance to torture.

A ghetto has a lot to say for it, for a beleagured cultural minority, but it requires at least a degree of cooperation with the civil authorities. The original 'geto' was the Jewish quarter in Venice: half protected space, half prison camp.

However I'm not sure he is entirely correct in predictions like the following:

Gay couples will demand to be 'married' in Church. Some priests will give them some kind of ceremony: some priests will refuse. The latter will be prosecuted for discrimination. It will be no protection to them to say they are not acting as agents of the state. It is not only agents of the state who are under the law. They are offering a service to the public: they should not discriminate. The difference between making a reasoned distinction between real and pseudo marriage, on the one hand, and homophobia, on the other, has already been collapsed by the courts in England.

There are presently some legal hurdles to a successful prosecution, at least in the UK, but those hurdles will come under intense pressure and, if the success of the so-called progressive agenda continues, they will disappear. Faithful priests will go to prison. On present trends, this will happen in the next few years.

Certainly we should prepare for the worst even as we hope for the best. I think a pretty good case can be made that the Sacrament of Matrimony "offered" by the Church is not something which has ever really been a "service offered to the public." There are quite a few hurdles to be cleared, and being opposite genders is only one of them. There's age, relationship—first cousins can't marry—status, etc. 

I don't know if that fact could be translated into a legal case in court. I actually think it would be great for a gifted Catholic lawyer to start quoting theological statements and canons of the Church on marriage in the civil courts, explaining at length why the Church teaches what it does with regard to marriage. That would be the perfect imitation of the martyrs, and it would drive the butt pirates and the demons they serve crazy.

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.

A question that interests me in the wake of Obergefell

Rather than hang another comment on Pik's post where it would be diversionary anyway, I'm just going to start a new thread to focus on it. I picked this excerpt from Chief Justice Roberts' dissent from Ann Althouse's blog (she favors SSM). The empasis is mine.

The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

This is obviously 10th Amendment territory. But my specific question is this. Let's say a state - Alabama might be the likeliest candidate - just says, yeah, we agree with Roberts. We're just going to keep our historic definition. Not sue, mind you, simply ignore Obergefell entirely. Terrible precedent, to be sure, and Roy Moore could expect some absolutely devastating Tweets.

But, really, what happens next? Paratroopers? Hardly. Economic sanctions? What? Against whom or what?

In short, what could a state actually suffer for simply ignoring Obergefell and not recognizing SSM?

It's worse than you think

Keith invited my comments on the Obergefell decision today over at his fine post on King v. Burwell (RTWT, as they say).  Because my take on this SSM decision will be too long to comfortably fit in a comment, tho -- it'll have to be in this new post.  But as I said, read Keith's post too.

As indicated in the title, my take on the Supreme Court decision regarding SSM is that it is worse, far worse, than you might be lead to believe from the media reports.  All you need to know about the majority holding is contained in its first sentence:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity*.

The holding then invokes the previously-tried much-reviled doctrine of "substantive due process", by which those fundamental rights as identified by the "reasoned judgment" of the courts as "so fundamental that the State must accord them its respect" are protected by the Fourteenth Amendment -- i.e., protected by the imposition of state laws that impinge on those rights. This approach of "substantive due process" was used in Dred Scott (which C.J. Roberts reminds us was "overruled on the battlefields of the Civil War"), and in the reviled, overruled, and now (by this case) resurrected Lochner case.  But history doesn't slow down Justice Kennedy --- not when his "reasoned judgment" can rewrite it by claiming that the Framers intended this result:

The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

Like Hell they did.

Anyhoo, then the obvious bootstrapping of same-sex marriage into such a fundamental right then occurs, and voila: same-sex marriage is a fundamental right that must be granted by each state, and honored across state lines.  End of analysis.

All of the four dissents are strong, and do not shy from pointing out the damage that is done by the majority opinion.  All citizens should read all four of them.  Roberts points out Dred Scott and Lochner, and the evils those cases inflicted, as noted above.  Scalia rightfully rails against the "naked judicial claim to ... super-legislative power, a claim fundamentally at odds with our system of government".  Justice Thomas gives a lesson on the meaning of liberty, with this lead-in:

[T]he majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea -- captured in our Declaration of Independence -- that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constituion not only ignores the text, it inverts the relationship between the individual and the state in our Republic.

And Justice Alito wraps up the larger effect at the end of his dissent:

If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.... 

... I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own.  But this sincerity is cause for concern, not comfort.  What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.

Yeah, it's that bad.

Keith makes the point that the states make "cohabitation licenses" available to all comers, without discrimination, and that whatever the rest of us want to call it is up to us.  That might have been a response had the Supreme Court applied "equal protection" analysis -- but it most certainly is not a valid response given this decision.  We now have Supreme Court law that says that marriage is a fundamental right that must be granted by the state to any pair (for now) of humans (for now) who want it.  Discrimination has nothing to do with it -- marriage itself, as defined by the Court today and by courts in the future, is itself a fundamental right because of the dignity that it allegedly confers. So sorry, Keith, that ship has sailed.

And contrary to Flambeaux's point (while granting that this die may have been cast long ago -- but not as long ago as Justice Kennedy says), this case will in fact cause incalculable damage beyond its specific holding today.  Just like Roe v. Wade, much of the populace will interpret this "right" to same-sex marriage as a public good -- "gee, if the state can't prevent me from getting (an abortion; married to another guy), it must be a good thing for me to do."  This case is worse than Roe, though, because at least in Roe the Court allowed room for some limitations, regulations, etc. in its out-of-the-blue trimester analysis.  There's no such room here -- this one is carved in stone totally, and completely.

Of course, this was the goal of the gay political agenda all along -- to require the Nation to agree that gay is just as good as hetero, and that it is immoral to think, much less say, otherwise.  You especially can't say otherwise in this current age of bigotry witch hunts, in which one evil racist nut acts out his own bigotry, meaning of course  good-bye to Lake Calhoun.

Legally, we'll now be in the realm of clashing rights:  same-sex marriage vs. religious freedom.  One would think that the judge-invented SSM right would lose to the express First Amendment free exercise right, but all you have to do is look at the abortion counseling cases to see how that often doesn't matter.

Courage and action (not BOp "strategic retreat") will be required in this new age. A price will be exacted for one's convictions.  Parochial schools and universities may well have to do without federal and state funding. Murray Option actions will be required.  And states and communities that want to resist may well have to suffer the inevitable corporate embargos.

Freedom is not free.

* Any in the class have any ideas as to what current hot topic might fall within "defining and expressing their identity"? Bueller?  Bruce (I mean) Kaitlyn?

My thoughts on the recent Supreme Court rulings

First and foremost, with respect to the first ruling in King v. Burwell, I owe Pik an apology. I had defended Chief Justice Roberts way back when for taking a strategic long view with an eye to setting up Obamacare for the kill later on. But Roberts' arguments in King now clearly show he sees the Court's role as one of providing a legislative rehabilitative salvation for the law rather than ruling on the text of it. That, and getting more Likes on Facebook.

He, at least I think Roberts is the one who made passing reference to this, is right on one point, though. It's fully in the hands of Congress to repeal and/or replace Obamacare as it sees fit. This is entirely as it should be. We shouldn't be hoping SCOTUS will do our difficult work for us any more than we should be hoping Roberts will shoot our dog for us to spare us the unpleasantness of the task. Now the situation is crystal clear: elect a Republican Congress with spine and a Republican President to sign their work into law and handle this whole matter the right way, as the writers of the Constitution intended.

Now, with respect to today's opinion in Obergefell there is one enormous question that immediately eclipses everything else: who will be the third and greatest fool in the Greater Fool Theory of Publishing to sign up to lose money on Rod Dreher's BO book? Dreher has been positively leaving a trail of bodily fluids the last several days in eager anticipation of today's ruling coming down as it did, because what's bad for Christian conservatives is good for anyone wanting to push a snake oil cure for what just hit them.

Aside from some unknown publisher's as yet unbooked losses, though, let's work through what today's Obergefell ruling really means.

First, if you're Rod Dreher or Ace at AOSHQ and you're reprising Bill Paxton's "Game over, man!" (NSFW) scene from Aliens, here's what's really going through your head: "Okay, I'm bent over this stump, I've dropped my pants, oh, my, what will happen to me next? Will they use a lube? Oh, it would be so much more terrible if they didn't use a lube, wouldn't it? It would! It would! I can hardly wait!"

Since I myself am not stump broke like Rod Dreher, here is, alternatively, what is going through my head.

A cohabitation license issued by the State must be available to all comers in order not to discriminate, which carries this interesting little clusterbomb implicit within it. Nothing in Obergefell mandates for two-person marriages or against triad or larger unions, plus, this is no longer the States' problem, not even the Feds' - it effectively rebounds right back to SCOTUS as soon as it arises.

Whether you wish to call two guys cohabiting for butt sex marriage or a dog show remains entirely up to you. If you whine, "but they'll make me call it marriage!", see stump broke, above.

If your church recognizes gay unions, consider getting another church that does not. Those that do not do so voluntarily can not and will not be forced to do so.

As for federal funding, if you can be bribed, please send your name and the particular favors, skills, goods, or elite access you are willing to barter for money to Keith care of EQE so that I may consider whether I have a need to buy you and use you for my own ends in some capacity.

In the meantime, the betting pool is now open on the publisher even more stupid than Judith Regan turned out to be.