The Dying of the Light: Religious Liberty in America

A sharply divided Supreme Court’s same-sex marriage ruling in Obergefel v Hodges opens an ominous door. Protecting religious liberty will be the test of democracy.More than the majority decision in the Supreme Court’s same-sex marriage ruling, it was the judicial vehemence of the split court’s dissent that I found more compelling and worthy of our collective and sober review. Among the better such reviews was one by columnist Peggy Noonan in The Wall Street Journal (“The High Court’s Disunited State,” July 3, 2015). If you are unable to view the column online at WSJ.com, I’ll cover its salient points here.Unlike most of the pundits who wrote glowing and celebratory pieces on the left of this issue, Peggy Noonan was struck, as was I, with the vehemence of the Court’s dissent. For those who see finality in this decision on the matter of same-sex marriage, it was by no means given anything close to the unanimity with which the Court has decided similar cases of “significant societal and cultural change,” according to Ms. Noonan. In any unanimous ruling,

“Whatever your own views, you as a citizen must acknowledge that nine lawyers, presumably skilled interpreters of the Constitution who hold different judicial and political philosophies, were able to agree on the charged issue at hand.” (Peggy Noonan, “The High Court’s Disunited State”)

A unanimous decision serves to quell dissent with an air of judicial legitimacy, but a split case with fiery dissent leaves a nation equally divided. This was the case with the Court’s 5-4 split in the same-sex marriage decision. Chief Justice John Roberts reacted in his dissent to the Court’s grandiosity and overreach. “The Constitution ... says nothing about marriage,” the Chief Justice argued, so states are “free to expand marriage to include same-sex marriage or to retain the historic definition.” His rebuke of the majority is clear:

“The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to... The Court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis of human society for millennia... Just who do we think we are?” (Chief Justice John Roberts)

The dissent of Justice Antonin Scalia was even more stinging. Citing the danger of such legislation from the bench, Scalia pointed out that a system of government “that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”Justice Scalia described the lawyers who comprise this court as “select, patrician, highly unrepresentative,” educated at either Harvard or Yale, four from New York City, eight from the East or West Coast, and “only one from the vast expanse in between.” None of this would matter, Justice Scalia wrote, if the Court’s members were “functioning as judges,” ruling impartially and without some political agenda for social reconstruction. “This judicial putsch,” wrote Justice Scalia in dissent, is the product of “hubris.”However, Justice Scalia's dissent is also problematic in that it divorces any Supreme Court decisions from any connection to the natural law. It is for just this reason that this court legislation may be overturned in future.Justice Clarence Thomas, on the other hand, upheld in his dissent the connection that should be there between natural law and the mandate of the Supreme Court to interpret the Constitution. He rebuked the majority for the delusion that through this ruling they are enhancing the dignity of same-sex couples while understanding neither the nature of dignity nor its source. Dignity is “innate,” and a government can neither bestow it nor take it away. “Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.”History supports Justice Thomas in this dissent. In “The Last Full Measure of Devotion Civil Rights and the Right to Life” on These Stone Walls, I cited a majority ruling of the Supreme Court in Dred Scott v Sandford in 1857. In an opinion written by Justice Roger Taney, a Catholic, the majority ruled that slaves who managed to make their way to a free state cannot be considered free because that would deprive a citizen - a slave owner - of property without due process. Justice Taney argued even further that black men are not citizens, and therefore, “a black man has no rights that any white man is bound to respect.” We cringe at such language today, or at least, we ought to.Fortunately for the human race, we have learned the folly of the judicial assignment and denial of rights based on race. Time and history reversed Justice Taney, and the Supreme Court eventually vacated the decision with the Fourteenth Amendment enacted in 1868. It was based on the same principle applied today by Justice Thomas. The Court does not supplant the Legitimate Authority to bestow or remove human dignity - not from slaves, not from prisoners, not from any self-described discriminated classes. Dignity, as Justice Thomas described, is “innate.” We can only hope that the participants of the 2015 Synod on the family will understand the same insight regarding the existence and importance of the natural law. Father George David Byers has mentioned this on Arise! Let us be going!THE FUTURE OF RELIGIOUS LIBERTY IS IN DOUBTFor those concerned with religious liberty, however, it was the dissent of Justice Samuel Alito that carried the most dire omen for the chaos to come. Using some painfully politically correct reasoning, the majority of the present Court compared the traditional definition of marriage to the pre-Civil Rights struggle for equal rights for African Americans that consumed this nation just fifty years ago. As Justice Alito described,

“The implication of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Will the African-American community silently settle for this comparison? Have those whose fathers and grandfathers endured humiliation, beatings, and murder as they stood in line fifty years ago in Selma, Alabama to register to vote now also endure this senseless comparison of deprivation, rights and dignity by our highest court? Have any of us ever visited a restaurant with a “heterosexuals only” sign in the window?To compare the struggle of same-sex couples for special rights with the plight of African Americans for basic civil liberties in 1965 Selma is to rub salt in a barely healed wound. Any American - white, black, or otherwise - who lived though the Civil Rights movement of the 1960s should be alarmed and offended by such a thoughtless and agenda-driven comparison. As Chief Justice Roberts wrote in his dissent,

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent .... Over and over, the majority exalts the role of the judiciary in delivering social change [as though] it is the courts, not the people, who are responsible for making new dimensions of freedom. Those who founded our country would not recognize the majority’s conception of the judicial role.”

THE DYING OF THE LIGHTPerhaps it is time for the Catholic Church in America to get out of the marriage business. By that I mean the practice of registering its clergy with the state so that officiating at a sacramental marriage is simultaneously recognized as a legal civil marriage. Therefore, as of this ruling, a Catholic priest who, following Church teaching, declines to officiate at a sacramental marriage for a same-sex couple is also simultaneously declining to facilitate their newly defined “right” to a civil marriage.The ink was barely dry on the Supreme Court’s 5-4 decision when liberal columnists around the country began suggesting that religious organizations opposed to same-sex marriage should be stripped of their tax exempt status. Referring to the #LoveWins trending hashtag on Twitter after the ruling, USA Today columnist Katrina Trinko observed, “When love wins, it doesn’t take prisoners.”The evidence for that began to show when, on the Sunday after the decision, FOX News commentator, Father Jonathan Morris was openly spat upon by two men as he walked past a gay pride parade celebrating the ruling at Broadway and 22nd Street in Manhattan. Father Morris, who ironically is a commentator on religion and culture at FOX News, was quick to dismiss the incident with some magnanimity of his own by pointing out that the two men do not represent all the marchers. Still, he did not choose to make this simple walk down the street in his clerical collar a battlefield.Nor did an Oregon Evangelical Christian couple who were recently fined $135,000 - having already paid that and more in legal fees - because they declined to bake a cake for a lesbian wedding citing religious objections. Nor did a mom-and-pop pizza restaurant in Oregon when its owners were forced out of business after stating that they would never deny service to a gay customer, but they would prefer on religious grounds not to cater a gay wedding.Columnist William A. Galston in “A Win on Marriage - Now Protect Faith” (The Wall Street Journal, July 1, 2015) wrote that the recent majority decision “has no bearing on the right of faith communities to define marriage for themselves and to restrict the sacrament of marriage to those who meet that obligation.” This is true, but it does not protect Catholic or Evangelical business owners with religious objections from harassments such as boycotts and public shaming. And it does not protect Catholic institutions from lawsuits demanding accommodations that chip away at objections to the new orthodoxy. Sadly, we already know the typical U.S. Catholic Bishops’ unwritten policy on lawsuits: settle everything.And it does not protect Catholics who voice their free speech rights in the public square. Brendan Eich was forced to resign as CEO of his company after public disclosure of his $1,000 personal donation to Proposition 8, the successful 2012 California ballot measure banning same-sex marriage.And remember what happened to Dan Cathy, founder of the Chick-fil-A restaurant franchise. In 2012 the mayors of Boston and Chicago declared that his restaurants had no place in their cities because Mr. Cathy - who never once denied service to any customer - voiced his personal conscience in opposition to same-sex marriage. The boycott campaign promoted in the liberal media was vehement, though it never did report that nationwide, the Chick-fil-A chain had its most profitable month ever during the boycott.Some writers have compared this Supreme Court decision with the 1973 decision in “Roe v Wade” which was thought to settle the question of a right to life, but instead launched the culture wars. In a letter published in The Wall Street Journal (July 2, 2015), writer Dave Erchull argued:

“Like ‘Roe,’ ‘Obergefell’ purports to decide and settle a social issue by finding a heretofore unknown constitutional right where none previously existed.”

In “Justice Kennedy’s Bitter Truth” (The Wall Street Journals, June 30, 2015), columnist William McGurn wrote that in 1992, in a Supreme Court decision on abortion, Justice Anthony Kennedy “unearthed a Constitutional right for Americans to define and express their identity.” Mr. McGurn quoted from Justice Kennedy’s opinion in that 1992 case:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

So thus, by judicial fiat, ends all objective truth. “Now,” wrote William McGurn, Justice Kennedy “has followed through.” In0bergefell V. Hodges, the same-sex marriage case, “the court substitutes for the laws passed by the people” with a newly discovered Constitutional right to “dignity” as defined by the “better informed understanding” of five lawyers from Harvard and Yale.Hence the haunting question of Chief Justice John Roberts in dissent: “Just who do we think we are?”

Do not go gentle into that good night,Old age should burn and rave at close of day;Rage, rage against the dying of the light.Though wise men at their end know dark is right,Because their words had forked no lightning theyDo not go gentle into that good night.Good men, the last wave by, crying how brightTheir frail deeds might have danced in a green bay,Rage, rage against the dying of the light.Wild men who caught and sang the sun in flight,And learn, too late, they grieved it on its way,Do not go gentle into that good night.Grave men, near death, who see, with blinding sightBlind eyes could blaze like meteors and be gay,Rage, rage against the dying of the light.And you, my father, there on the sad height,Curse, bless me now with your fierce tears, I pray.Do not go gentle into that good night.Rage, rage against the dying of the light.(Dylan Thomas, 1914-1953)