My concerns about the SCOTUS ruling in Obergefell fall into two separate categories that can be broadly described as political and religious. On one hand, I consider the impact on liberty in the United States from the perspective of the Constitution and the power of the judicial branch, on the other hand I have my moral and spiritual perspective as it pertains to my own faith. I believe reasonable, principled objections exist on both fronts, and although many others have opined on this subject already, I desire to add my own voice.
I had an interesting exchange on Facebook with someone who supports the Obergefell decision, which requires the governments of all 50 states to legally recognize unions of same-sex couples as "marriages." What was interesting was that despite my providing ample examples of principled objections (all of which were from the legal perspective, not the religious), he was so ideologically blinded that he was literally incapable of seeing a perspective other than his own. You either agreed with him, or you were a hateful bigot. Period. I found it surprising because this man appears to be reasonably intelligent; apparently even smart people can have closed minds. The points below include some of the items I brought to his attention, but which were instantly dismissed like a kid with fingers in his ears going "la la la la."
From the legal/political perspective, here are some of my principled objections to the SCOTUS ruling, provided as rebuttals to the myths being expounded by some of its supporters:
1. SCOTUS expanded freedom for everyone. No, this decision has nothing to do with freedom. "Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits." (from Thomas' dissent, emphasis added) Claiming, as many do, that this decision expands freedom is a misapplication of the basic tenets of this representative republic.
The High Court swiping power from the states injures democracy by improperly altering the checks and balances system that has served us well thus far. "The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with '[t]he whole subject of the domestic relations of husband and wife.'” (from Roberts' dissent) It is thus with the states, and the people, that the issue should have remained. Just because it went to the Supreme Court doesn't mean that gives the SCOTUS justices carte blanche to let their feelings rule the day rather than exercising proper judicial restraint.
2. SCOTUS lifted restrictions on marriage, weakening government power. No, immediately prior to this decision, there was no restriction on who could get married (with the obvious exceptions of age of consent and incest). That's because prior to this decision, marriage was defined as the legal union of a man and a woman. SCOTUS redefined the word "marriage" and imposed that definition on the states -- something the Constitution does not empower SCOTUS to do. (A simple example should suffice to clarify: any homosexual man was always free to marry a woman, and any homosexual woman was always free to marry a man. There was no restriction on anyone entering into what a marriage was, by definition.)
The decision clearly expanded government power. This idea that SCOTUS limited government power is manifestly absurd. As atheist blogger Christopher Cantwell points out:
The court decided that the constitution, despite lacking any language saying so, promises everybody a “right” to a “license” to marry... Firstly, a “license” is an indicator that you do not have a “right” to do something. Licenses are a thing government issues, specifically to prevent someone from doing something, until they get government permission to so do. They are, by their very definition, a constriction on rights, a limiter of freedom. To license a thing is to outlaw it, and to then grant one permission to break that law. To say that you are fighting for gay “rights” by seeking to have licenses issued to them, is not just a complete failure to understand rights, it is a complete failure to understand rudimentary English.
It is tomfoolery to claim the creation of this new "right" is at all the expansion of an existing right. And if people want this new "right," the correct mechanism is through state legislatures in this representative republic as conceived in the Constitution, not via judicial fiat. As Roberts states in his dissent: "The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people." Claiming that this decision curtails government power is risible. On the contrary, this decision is yet another step away from liberty, as it concentrates power in a few hands (SCOTUS), stealing it from the people, who had previously utilized their right to self-determination via democratic means and within the constraints of the Constitution.
Justice Alito opens his dissent by stating that "The Constitution leaves [the question of defining marriage] to be decided by the people of each State." By ruling in this manner, it is clear that SCOTUS took power unto itself that was not rightfully the Court's to take. "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny," Alito said. Well, at least we used to have that right.
"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 [majority] opinion...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." (from Scalia's dissent)
This nation was founded on the principle of the government deriving its powers from the "consent of the governed" (see Declaration of Independence, 1776). We went to war with Great Britain over the idea of "taxation without representation." Now we have, as Scalia put it, "social transformation without representation," and it is a despicable turn of events that no American should be celebrating.
3. Now that SCOTUS has settled this once and for all, we can all just get along. No, this will, without question, serve to be a pyrrhic victory. As Roberts notes: "However heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause." To wit, SCOTUS has proclaimed, "Because I said so!" and closed all debate, insulting and alienating the majority of the citizens plus 34 of the states, for no other reason than "they felt it best" -- with no actual Constitutional authority to do so. When the "rainbow high" wears off, things are going to be more contentious than ever. We have learned from past experience that if you cross the militant homosexual agenda, they will hurt you.
4. The SCOTUS decision won't affect churches. No, there are factions who will now see this as an opportunity to cause problems for churches and religious people; you can bet they will continue to push their agenda, not satisfied with what they have thus far obtained. "In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples." (from Thomas' dissent) Meanwhile, Alito warns, "[This] decision will be used to vilify Americans who are unwilling to assent to the new orthodoxy." Ya think?
There will definitely be ramifications to this heavy-handed approach by SCOTUS. Roberts says, "Today’s decision...creates serious questions about religious liberty. 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." Even amici supporters of the decision warn that it will "have unavoidable and wide-ranging implications for religious liberty.”
Alito sees a bleak future for anyone on the losing side of this decision: "I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools." Sadly, his vision of the future has already been proven to be true, just ask one of the cultural martyrs such as Brendan Eich, who have paid dearly for their beliefs.
This poorly-reasoned, emotion-based exercise of federal overreach by five unnaccountable, unelected black-robe wearers will only serve to create more major infringements on religious liberty. More acrimony is ahead. More lawsuits are coming. More persecution of conscience will abound. This is a mess, and it needn't have been handled this way -- in fact, the Constitution says it shouldn't have been.
5. The ends justify the means. No, they don't. It amazes me that some people are so happy to cede inappropriate powers to each of the three branches of government, as long as they use that power to please them. They are too shortsighted to consider what will happen when parties not likeminded later fill those roles and wield that same inappropriate power. It's all fun and games until the anti-you takes the reins back. Why not just properly restrict the power to begin with?
The central government usurping power from the states and the people violates the spirit and letter of Constitutional law, which, of necessity, endangers other liberties, including religious freedom. Thomas notes, "Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty."
So, even if I were of a mind to approve of same-sex "marriage" (which I am not, for the principled religious reasons spelled out here), I would wholly object to the philosophical gymnastics and Constitutional chicanery used to arrive at this decision. If I were, for example, a 19th century Latter-day Saint who supported plural marriage, and the SCOTUS made polygamy legal in all 50 states using similarly awful jurisprudence that resulted in an assault on the Constitution and a usurpation of state authority, I would be just as flabbergasted and defiant.
Those who celebrate this decision are cheering their own eventual demise. The "gay marriage" movement has been used as a pawn in concentrating government power and setting terribly dangerous precedents regarding the manner in which SCOTUS power may be wielded. This should trouble everybody, including those benefitting from the decision. Surely supporters of the decision can see that the same tactics used to obtain a result that they *dislike* would have been just as unacceptable. What the High Court did was, as Alito stated, "far beyond the outer reaches of this Court’s authority."
But who cares, as long as you got what you wanted, right? No need to look past the end of your own male enhancement to what may lay ahead now that this Pandora's Box has been opened. Alito puts it clearly: "Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. 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. Even enthusiastic supporters of same-sex marriage should worry." Indeed, we should all be very worried.
If you love our country, if you love liberty, and if you love the Constitution, this decision is chilling. As I have said elsewhere regarding tortured reasoning, the Constitution will say whatever you want it to say, if you waterboard it enough.
So, in short: this decision was, plain and simple, a power grab by the centralized government. The supporters of this decision have it backwards, as usual, claiming it expanded freedom. But then, that is Satan's expertise -- flipping things 180-degrees from truth. (Yes, I mentioned Satan...no discussion of politics would be complete without a reference to ol' Lucifer, now would it?)
Okay, that's a brief summary of my legal/political objections. Now onto the issues I have with the way this is being handled culturally.
First, suggesting this ruling was about "love" is specious. If government licensing of marriage was about love, then not even heterosexual couples, prior to the 20th century (when marriage license schemes first came into effect) were allowed to love each other. And what of all those heterosexual couples who choose to cohabitate? Are they not actually allowed to love each other until they have obtained permission from the state? Puh-leeze. Utter nonsense.
Meanwhile, shutting down any opposing views by claiming that you're a hater if you disagree is a tool of tyranny. I don't have to agree with you to love you. And sometimes disagreeing with someone is, in fact, the best way to show love.
Speaking of love, the people using the vapid #lovewins hashtag are either full of malice or wildly lack self-awareness. That offensive, disingenuous tag implies there can be no principled objection to the SCOTUS ruling; it says that if you disagree, you are a hater and do not value love. It is as bigoted and closed-minded as can be. And it insultingly deflects from the real point of this issue, as if we're all stupid. I suggest a more accurate hashtag: #constitutionloses.
If the decision's supporters really believed in "live and let live," and liberty, and government non-interference, they would reject this ruling and quit acting so self-righteous. Instead, they are already on the attack, using their silly arguments about "love" to try to shame all principled opposition into a corner labeled "hater." Yeah, that's super-tolerant of other peoples' beliefs...
As for my religious objections to the decision, it is all neatly summed up by this content from The Church of Jesus Christ of Latter-day Saints. It's worth reading the whole thing -- it will give you a clear understanding of where so many of us are coming from, and how we intend to deal with this situation. Suffice it to say, I stand with the Brethren.
As for the moral aspect of this newly created "right," it is a simple truth that homosexual behavior is a serious sin. Despite what SCOTUS has said, marriage is defined as the union of a man and a woman. Anything else is just an improper relationship masquerading as acceptable. I have had friends who were homosexual, and I thought they were very nice people and I got along with them very well. That doesn't mean I believed their behavior was correct, but I appreciate that we are all sons and daughters of God and we all have our failings and weaknesses. I love everybody. But I don't condone all behavior -- I would be a monster if I did. There are many laws that are not morally sound - such as the fact that abortion-on-demand is legal, and adultery is legal. But as Elder Dallin H. Oaks said, "Man's laws cannot make moral what God has declared immoral."
We should always -- always -- treat others with kindness and compassion, but we must also never, ever stop standing for truth and right.
Thankfully, I know that everything will work out right in the end. It's just going to be a very challenging ride until we get there.
(C) 2015 Michael D. Britton
Feel free to use any of my arguments above as you engage with your friends. Just please provide attribution and links back to here if you quote me. Much appreciated!