Identity vs. Use: What Is Religious Prejudice?

Imagine you are part of a church with a preschool and daycare center. You enroll children of any religion, and the townspeople rely upon to make ends meet. The preschool qualifies in every way for a state program to resurface your playground, but its application is denied simply because it is a church. Is that prejudice or simply the separation of church and state?

In the Supreme Court decision handed down for Trinity Lutheran Church v. Comer, seven of the nine justices agreed that the state of Missouri was discriminating against Trinity Lutheran Church by denying its application to participate in the state's successful Scrap Tire Program, where the school would be reimbursed for using ground up old tires as playground cover. Written by Chief Justice Roberts, the opinion states:

Trinity Lutheran is not claiming any entitlement to a subsidy. It is asserting a right to participate in a government benefit program without having to disavow its religious character. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.1

So far so good. However, three of the concurring justices objected to a single footnote of Chief Justice Roberts's opinion enough to note it in their concurring statements. The footnote read “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”2 In other words, Roberts narrowed the ruling.

Don't be surprised if people act according to their beliefs.

Justice Gorsuch, in writing his concurring-in-part statement, raises some important points, notably that the opinion is trying to make a distinction between what constitutes religious status and what makes up religious use. He then asks:

Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).

…

I don't see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way. 3

Justice Gorsuch's question is a good one. A person's beliefs should and will affect his or her actions. It shouldn't be surprising that Christian will do Christian things as a part of living life. He will hold to Christian beliefs and he may even write about those beliefs, as White House nominee Russell Vought has done. Yet, just two weeks ago, Senator Bernie Sanders redressed Vought for doing just that, blustering “this nominee is really not someone who this country is supposed to be about.”

Sander's statement is a great example of why Gorsuch, Thomas, and even Justice Breyer had a problem with that little footnote. This isn't only about playground resurfacing. Discrimination against religious believers is become more and more common, and we need a strong opinion to halt it in its track or we may lose the very essence of the First Amendment protections for faith. That is truly what this country is not about.

References

1. TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER. Supreme Court of The United States. 26 June 2017. SCOTUS Blog. Supreme Court of the United States, 26 June 2017. Web. 26 June 2017. https://www.supremecourt.gov/opinions/16pdf/15-577_khlp.pdf.
2. Trinity, 2017. 14. Footnote 3.
3. Trinity, 2017. Gorsuch Concurring in Part.

Why the Supreme Court's Decision Doesn't Change the Concept of Marriage

Is the question of same-sex marriage over? The Supreme Court has ruled in Obergefell v. Hodges that same-sex marriage is legal and must be recognized across the United States. Does that settle the matter? Actually, no. The Supreme Court has made other definitive decisions which have been later overturned because the assumptions from which those decisions were made were false. Last Monday marked the 160th anniversary of Dred Scott v. Stanford, a seven to two decision by the U.S. Supreme Court that African-Americans whose ancestors were slavers were ineligible to be considered people of the United States. This May will mark the 90th anniversary of the famed Buck v. Bell decision by the Court, where they authorized the forced sterilization of people.

So, what are the assumptions underlying the Obergefell decision? One is that the state has a role in defining marriage.1 Certainly, governments have traditionally recognized marriage and crafted legislation that affects its citizens on the basis of their marriage status, but do governments have the authority to define the very essence of what constitutes marriage? Just what is marriage and who gets to define its terms?

How Do We Begin to Understand Marriage in Relation to Law?

In the debate over same-sex unions, it has been popular to place the "what is marriage" question into a dichotomy. Most people ask whether marriage is something invented by the state or something that stands objectively outside the state. In reality, though, there are three categories societies rely upon to understand and help in the civil interaction between its individuals: societal creations, societal conventions, and natural laws.

Societal creations are those things that are invented by the state. Examples include which is the "right" side of the road to drive on, the legal recognition of corporations as individuals for legal contracts, and the postal system. Each of these are creations of the state and each can be redefined or even abolished through legislation.

Natural laws, on the other hand, are recognized by the state but sit above the state. The right to life, the right practice one's religious beliefs without undue government interference, the right to not be enslaved, and the right to the fruits of one's labor are things that government doesn't give us; we hold them inherently as a result of being human. While governments can pass legislation that denies us our rights, the rights themselves don't go away. They are simply being infringed upon. Just as the slavery issue proved, even if the law states slavery is legal, that doesn't eliminate the right to freedom for the slave. It just means the law is corrupt.

Societal Conventions Differ from Societal Creations

But there's a third aspect to societal interactions: societal conventions. These are things that naturally come out of civil human interaction. David Hume defined convention as "a sense of common interest; which sense each man feels in his own breast, which he remarks in his fellows, and which carries him, in concurrence with others into a general plan or system of actions, which tends to public utility."2I think that's right. Shows of respect, for example, are ubiquitous across all cultures. However, what counts as a sign of respect can differ widely, like bowing before a company president versus simply shaking his hand.

The wedding ring is another convention we use to communicate marriage. Not taking another person's spouse would fall into natural law, but the way to recognize a person as married can and has differed in different societies, with the wedding ring serving as a societal convention that is recognized across Western culture.

Is Marriage a Creation, a Convention, or a Reflection of Nature?

Justice Kennedy in his majority opinion seems to place marriage in the category of a societal convention. He said, "The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society." Here, Kennedy is I think purposely obtuse. What does he mean by "the ancient origins of marriage?" The coupling of men and women to produce children is older than human history itself. It's ingrained into our biology. Does that mean every sexual encounter is tantamount to marriage? Of course not. However, marriage has always been seen as the intentional joining of two people of the opposite sex presumably for life, whether or not any government exists to recognize it as such.

Kennedy is also right to say that marriage has not stood "in isolation from developments in law and society." But that doesn't mean marriage itself is a societal convention. While the ring that helps people recognize marriage is a convention, the marriage that it symbolizes existed before rings. It existed before marriage certificates. Marriage is actually a reflection of nature, and to degrade it to a social convention that can be changed or redefined undercuts the essence of what marriage actually is.

So, what about those "developments in law and society" to which Kennedy refers? He rightly raises the point that arranged marriages are no longer the norm for Western societies. More importantly, he points out law of coverture are no longer recognized, either. Is this an example showing how legal recognition changed marriage itself? Do these changes show that marriage itself can evolve? No, for these do nothing to change the essence of marriage, which is the only recognized institution humanity has ever had to properly rear the next generation. Let me state that again. There exists no other institution that human beings recognize for the proper creation and rearing of children than man-woman marriage.

Governments cannot define marriage because governments didn't create marriage. Governments can only recognize marriage as the institution rooted in nature that it is. Like other natural laws, governments can choose to ignore what marriage is or choose to abuse or withhold it from its citizens. Just because the Supreme Court said that Dred Scott had no inalienable rights because his ancestors were slaves or Carrie Buck had no right to protest her forced sterilization, doesn't mean those rights didn't exist. It just meant the Court was in grievous error.

In my next article, I'll go a little further into the distinction between creations, conventions, and natural laws, demonstrating that even though governments may pass laws with respect to aspects of marriage, it in no way proves that marriage itself can be defined by law.

References

1. In the decision, Justice Kennedy wrote, "Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations."
2. Hume, David. "Appendix III. Some farther considerations with regard to Justice." An Enquiry into the Principles of Morals. The University of Adelaide Library. 26 Feb. 2014. Web. 13 Mar. 2017. https://ebooks.adelaide.edu.au/h/hume/david/h92pm/appendix3.html.

Morality: Answering "What Makes You Think You Know Better?"

When the U.S. Supreme Court refused to hear the appeal to the 9th Circuit Court of Appeals' ruling on Stormans, Inc. v. Wiesman, they tacitly approved the actions of the state of Washington, who is forcing pharmacy owners to sell abortifacient drugs against their religious beliefs. In that case, the Storman family would not stock two drugs that would cause abortion either days after or weeks after conception in their general stores, which included pharmacies because they held life begins at conception.1 However, Washington state passed laws specifically targeting religious pharmacy owners, forcing them to sell the drugs according to a 2012 Federal court ruling.2

The Stormans' case has its critics. Someone recently commented on an article I wrote concerning the case. She felt that the choice of the pharmacy to not stock the drugs was what was limiting freedom:

How is it that you see it as ok for a pharmacist to second guess a prescription ordered by a doctor? The pharmacist is not the one treating the patient, he has not evaluated the patient and likely has no knowledge of other conditions the patient may have. If the pharmacist has a problem with a d[r]ug a doctor prescribes he should discuss it with the doctor, just as he does when he catches a potentially dangerous drug interaction that the doctor may have missed. It seems highly unprofessional to just refuse to fill the prescription.

I simply replied that her description of the situation was euphemistic. I noted the drugs weren't simply a "prescription ordered by a doctor." They were designed for a very specific purpose: to cause an abortion. I also noted that a prescription is not sacrosanct. I would have a problem selling drugs designed for the purpose of euthanasia, which is also wrong. She challenged my objection, stating:

When a person, in consultation with their doctor, decides that ending their own life or terminating a pregnancy is the best course of action for their unique situation, what make you think that you know better?

There are two problems with such a question. First, it seems to assume that ethics are only situational and closed to only those who know the intimate details of the situation. But that isn't true at all. Imagine if I were to say "If a person in consultation with their doctor decides that killing their two year old is the best course of action for their unique situation, what makes you think that you know better?" Such a question would rightly be considered absurd. In such a circumstance it isn't necessary we know all the details; killing an innocent human being is wrong full stop. Unique circumstances don't change that.

Who Gets to Decide What's Moral?

But this isn't even the main problem in the Stormans' case. I get that my interlocutor holds a different points of view on abortion. At issue in the Stormans' case is the right of individuals to freely follow their consciences and their religious beliefs. By forcing them to sell drugs they see as immorally ending a life, the state deems its own interpretation of morality more valid than that of its constituents. This is wrong. It is well within one's rights to not engage in commerce when it violates one's conscience on clear grounds.

I can offer a real world example to make my point. Capital punishment has been authorized in 31 states with lethal injection being the primary way the sentence is carried as the Supreme Court declared a three-drug cocktail as being legally acceptable.3 However, many activists both here and across Europe object to any form of capital punishment. Pressure from several European countries has led drug manufacturer Pfizer to not allow its drugs to be used in lethal injections.4

These are almost parallel situations. According to the logic of the 9th Circuit ruling, Pfizer should be legally compelled to sell its drugs to all states for use in lethal injections. Who is Pfizer to override the will of the people who voted in capital punishment? How can any activist who is believes capital punishment is morally wrong and applied pressure to Pfizer to stop selling the drugs to correctional facilities claim that other companies must be forced to sell abortifacients to whomever walks in off the street?

Should State Fiat Overrule Conscience?

Of course, even in this instance, Stormans' has the more defensible position. While Pfizer's primary motivation for banning the purchase of its drugs for lethal injection is economic (Pfizer doesn't want to lose the significant customers of several European national health systems), the motivation for the Stormans family is based on strongly held personal conviction which could actually cause them to lose money by not making a sale.

If the Washington case is indicative of how matters on conscience are to be treated in the future, all Americans can be forced to participate in actions they deem immoral. If the state gets to decide which moral issues may be worthy for objection and which hold mandatory participation, then it isn't our consciences that matter. We become the pawns of the state; which is the very thing our founders fought against.

References

1. Alliance Defending Freedom. "Stormans v. Wiesman." ADFLegal.org. Alliance Defending Freedom, 2016. Web. 27 July 2016. https://www.adflegal.org/detailspages/case-details/stormans-v.-wiesman.
2. Harkness, Kelsey. "Alito: Value Religious Freedom? You Should Be Worried." The Daily Signal. The Heritage Foundation, 28 June 2016. Web. 27 July 2016. http://dailysignal.com/2016/06/28/justice-alito-those-who-value-religious-freedom-have-cause-for-great-concern/.
3. "States and Capital Punishment." National Conference of State Legislatures. National Conference of State Legislatures, 1 Jan. 2016. Web. 28 July 2016. http://www.ncsl.org/research/civil-and-criminal-justice/death-penalty.aspx.
4. Eckholm, Eric. "Pfizer Blocks the Use of Its Drugs in Executions." New York Times. The New York Times Company HomeSearchAccessibility Concerns? Email Us at Accessibility@nytimes.com. We Would Love to Hear from You., 13 May 2016. Web. 28 July 2016. http://www.nytimes.com/2016/05/14/us/pfizer-execution-drugs-lethal-injection.html.

SCOTUS Ignoring the Constitution

It's the end of June and it means that another round of Supreme Court decisions It's the end of June and it means that another round of Supreme Court decisions have been released. One of the biggest decisions getting press is the finding in Whole Woman's Health v. Hellerstedt, where the Court overturned a Texas law requiring abortion clinics to meet the standards of other ambulatory surgical centers in the state. Because this is the first Supreme Court ruling on an abortion case in nearly 20 years, it has gotten a lot of press. However, the bigger story is the decision the Court made to not hear a case.

Today, the Court's majority denied a hearing for the owners of a Washington State pharmacy who are resisting being compelled by state law to sell abortifacient drugs at their business. This is a terrifying decision, and not simply because it involves abortion. The case hung on the fact that compelling someone to engage in commerce against their convictions and religious beliefs is unconstitutional. That's what free exercise of religion means. That's why the Pilgrims left for America and it's why religious freedom was demanded as the first of the amendments guaranteed in the Constitution. To simply ignore that now is to gut the very freedom upon which our country is built.

Lest anyone think I'm exaggerating, I offer this quote from James Madison on the need for religious liberty separate from any state compulsion:

Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true that the majority may trespass on the rights of the minority.

2. Because if Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves (emphasis added).1

What makes Madison's arguments even more interesting is in this instance he was arguing against compulsion from the state to subsidize a particular form of Christianity, but he anchored his arguments in the understanding that personal conviction takes precedence over the state's desire. It is the guarantee that the people have the right of conscience to live out their beliefs to the Governor of the Universe first that is inalienable. In denying the hearing, the Court 's majority is denying that any such right exists.

Justices Roberts, Thomas, and Alito understood the problem rejecting the case poses for religious liberty. In their dissenting opinion, they call this “an ominous sign” and conclude “If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.” 2

I'm concerned. I'm deeply concerned that judicial reinterpretation is erasing the very rights upon which this country was built and why it should exist. Madison thought it was a big deal, maybe our judiciary should, too.

References

1. Madison, James. "Amendment I (Religion): James Madison, Memorial and Remonstrance against Religious Assessments." The Founder's Constitution. The University of Chicago, 1987. Web. 28 June 2016. http://press-pubs.uchicago.edu/founders/documents/amendI_religions43.html
2. Stormans, Inc. v. Wiesman. Supreme Court of the United States. 28 June 2016. Supreme Court of the United States. Supreme Court of the United States, 28 June 2016. Web. 28 June 2016. http://www.supremecourt.gov/opinions/15pdf/15-862_2c8f.pdf.

Why Christian Opposition to Obergefell is Not Pushing a Theocracy

Last Friday's Supreme Court decision that forced all fifty states to recognize same sex unions as legal marriage continues to ripple through our culture. So many people on all sides of the issue are confused about just how far the decision impacts them, their faith, and their lives.

My friend Mike Licona reposted a question concerning how the Supreme Court's ruling affects Christians and why we are so upset. He recounts:

Chris Armer commented on my earlier post. He asked whether I believe a Christian might be able to look at the issue of same sex marriage in a manner similar to religious liberty; that a Christian could be against the act but for the freedom to do that act. For example, one might disagree with Islam but support a Muslim's right to worship freely in the U.S.1

I also saw a meme circulating on the Internet that asks, "You're upset because you want your religious laws to be the law of the land. Do you know who else wants that? ISIS." Are these charges fair? I don't think so. While it is true that my religious belief informs my opposition to Obergefell, it is not the only factor involved. In fact, I think there are at least three separate but interrelated offenses that the Obergefell decision violated and it's important to understand the distinctions between them.

1.The Obergefell Decision Contradicts Christian Theology

The Obergefell decision offends Christians because of their theological understanding of marriage. Marriage is described in the Bible as the joining of a man and a woman where "they two shall become one flesh" (Matt 19:5, Gen. 2:24). Such a phrase denotes a physical joining of two people together—in other words sexual relations. Biblical marriage is conjugal; and of everything is working as intended, the two will literally become one flesh in producing a child.

Because homosexual sexual relationships are forbidden in the Bible, Christians see the Obergefell decision as antithetical to biblical values. They are right in this. The objection above, though, holds in this instance. There are many other human acts that are not illegal but are anti-biblical. Take the ever more common occurrence of two people living together out of wedlock. Should the government outlaw these relationships, too? Of course not. We are, as Licona rightly noted, not a theocracy and Christianity has never been about coerced morality.

Still, Christians are part of the governmental authority and from this position alone they have a right to keep immoral actions from becoming sanctioned. Christians have every right to protest and try to vote down laws making recreational use of marijuana legal, for example. The United States is a government of the people, by the people, and for the people, thus Christian views should count as part of that process. This is not a push of theocracy; it is giving a voice to a significant portion of the U.S. constituency. It is the outworking of a representative democracy. The ISIS comparison fails in this respect.

However, my complaint against Obergefell is not simply theological. There are at least two other spheres the decision affected, and those are important to recognize as well.

2.The Obergefell Decision Denies the Democratic Process

While Christians are not trying to impose a theocracy upon the nation, they are also upset because the decision really violates the established process of representative government we agreed to in both the Declaration of Independence and the Constitution. The dissenting Justices clearly saw this decision as a Constitutional tragedy. Chief Justice Roberts wrote:

Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.2

Justice Thomas characterized the decision even more starkly:

The Court's decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the 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.3

Alito and Scalia spoke in similarly harsh terms. It is a fact that when the question of defining marriage was put to a vote, natural marriage was winning handily. Thirty of the fifty states passed Constitutional amendments reserving marriage to one man and one woman by an average margin of 68%.4 Only the state of Minnesota's vote in 2012 failed to gain a majority of the votes required to pass the amendment. In most of these states, the vote was struck down by judges, usurping the will of the electorate.

Of course it is not always true that the majority has a correct view of the rights of others. The history of slavery in our country shows this. However, it is also not true that Supreme Court decisions are always a corrective as the Dred Scott, Buck v. Bell, and Roe v. Wade decisions also show. Righteous indignation at a court that decides a case because of personal ideology instead of the limited power the Constitution affords the Federal government should be applauded.

As Scalia commented, "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."5 The United States was never to be an Oligarchy. Christians, who were winning democratically in the majority of states, had their voice and the opportunity of democracy stripped from them through judiciary fiat.

3.The Obergefell Decision Ignores Natural Law

Lastly, and perhaps most importantly, the Obergefell decision is wrong because it violates the basis of marriage that may be found in natural law itself. Natural Law has been recognized as the foundation of our entire system of government since Jefferson penned his famous words in the Declaration of Independence. Just as one can look to the nature of human beings to know all are of equal worth, so one may look to nature to understand that marriage transcends government sanction. Marriage has a biological component of producing children and this makes the institution different than either societal creations or societal conventions.6

Our government may not be a theocracy, but it must recognize natural law to be considered just. Marriage is the only institution in human history that has been recognized as the proper institution for producing and rearing children. We do not allow children to be produced in government hatcheries. We do not encourage parents to abandon their children to government agencies. We encourage children to be brought up in stable homes and we expect biological parents to shoulder the responsibility of rearing their children. That's what deadbeat dad laws are all about.

Nature dictates that every child has a biological mother and a biological father. Every. Single. One. Because of this, there is a responsibility the parents bear when creating a new life. Codifying homosexual unions either denies the child's right to a legally recognized mother and father or it separates the child from the parents completely, assuming biology has no bearing at all on what constitutes a parent.

The Obergefell decision degrades marriage by diminishing it from its recognized role across societies as the primary institution for creating and rearing children. It purposely cleaves the procreative aspect of marriage since there is no way any homosexual union could ever produce a child. This is a clear and compelling difference between natural marriage and homosexual unions. The nature of the two unions is different. As Francis J. Beckwith explains:

The argument against same-sex marriage is based on the nature of human persons as gendered beings who have a purpose that is derived from that nature. That is to say, male-gendered human persons are meant for coupling with female-gendered human persons, even if their coupling does not result in procreation. This argument is not based on a human person's current function, ability, or desire, each of which could be inconsistent with how human persons ought to be by nature. For example, a person who is blind is lacking something physically, though he or she is still a human person who by nature ought to be seeing. In the same way, a sterile, aged, or willingly childless person is still a gendered human person whose purpose for marital union (if he or she does not have the gift of celibacy) can be consummated only by one-flesh communion with someone of the opposite gender. This remains true even if he or she has desires that are contrary to what he or she ought to desire by nature.7

Martin Luther King, in his famous "Letter from the Birmingham Jail" explained the difference between a just and an unjust law:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. 8

If the Obergefell decision shows that it is neither rooted in eternal law nor natural law, then it should be opposed on grounds that the law has no basis for being just. Christians can dismiss the charge we are trying to establish a theocracy as unfounded. The grievance against this decision is grounded in a more fundamental premise than that.

References

1. Licona, Michael. "Chris Armer commented on my earlier post." Facebook. Facebook, 1 July 2015. 03 July 2015. https://www.facebook.com/michael.licona/posts/817911368292791?pnref=story.
2. Soergel, Andrew. "9 Need-to-Know Quotes From the Obergefell v. Hodges Opinions." US News. U.S.News & World Report, 26 June 2015. Web. 03 July 2015. http://www.usnews.com/news/articles/2015/06/26/9-need-to-know-quotes-from-the-Obergefell-v-hodges-opinions.
3. Soergel, 2015.
4. See the statistics provided at "List of Former U.S. State Constitutional Amendments Banning Same-sex Unions by Type." Wikipedia. Wikimedia Foundation, 2 July 2015. Web. 03 July 2015. https://en.wikipedia.org/wiki/List_of_former_U.S._state_constitutional_amendments_banning_same-sex_unions_by_type.
5. Soergel, 2015.
6. For the distinctions of each of these, see "Can Governments Define Marriage?" at https://www.youtube.com/channel/UCvECw-SDIducb0l-fzxfvHA
7. Beckwith, Francis J. "Wedding Bell Blues: Understanding the Same-Sex Marriage Debate." Christian Research Institute. Christian Research Institute, 22 Apr. 2009. Web. 03 July 2015. http://www.equip.org/article/wedding-bell-blues-understanding-the-same-sex-marriage-debate/.
8. Esposito, Lenny. "Martin Luther King's Letter from the Birmingham Jail." Come Reason's Apologetics Notes. Come Reason Ministries, 17 Jan. 2011. Web. 03 July 2015. http://apologetics-notes.comereason.org/2011/01/martin-luther-kings-letter-from.html.

Why Did the Culture Shift on Same-Sex Marriage? (video)

The Pew Research Center reports "in 2001, Americans opposed same-sex marriage by a 57% to 35% margin. Since then, support for same-sex marriage has steadily grown. Today, a majority of Americans (57%) support same-sex marriage, compared with 39% who oppose it."1

What changed?

In this video, Lenny looks at the rise of the homosexual rights movement. He traces the coordinated effort to de-vilify homosexuality by masking it in popular media and how the Church didn't offer any good arguments against the push by activists. He also tells why it isn't too late to reclaim the high ground in the same-sex marriage debate. This video is the first in a three part series on building the case against same-sex marriage.

References

1.Pew Research. "Changing Attitudes on Gay Marriage." Pew Research Centers Religion Public Life Project. Pew Research Center, 07 June 2015. Web. 14 June 2015. http://www.pewforum.org/2015/06/08/graphics-slideshow-changing-attitudes-on-gay-marriage/.
Images courtesy Håkan Dahlström and licensed via the Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Two Key Questions to Ask in the Same-Sex Marriage Debate (video)

The debate over same-sex marriage—what it is and if it should be legal—reached all the way to the Supreme Court of the United States.While many different opinions and arguments have been made against the idea of defining marriage to include homosexual couples , there are two questions that focus on the crux of marriage: "Why is marriage only for two people?" and "What about the children? Do they have rights that are being violated?"

 In this video, Lenny expands on why these tow questions are the key in helping more people understand just what we can lose if we as a society open the door to same-sex unions.

The Injustice of Government Defining Marriage

In the history of the United States, there are two United States Supreme Court decisions that everyone agrees were breathtakingly egregious. Both were rulings focusing on government laws that tried to police the natural course of human beings and both times the Court came down on the wrong side of nature.

The first case involved an African-American man named Dred Scott who was bought as a slave. Although his master, Peter Blow, moved from Virginia to the state of Missouri where slavery was illegal, Scott wouldn't be released by Blow. Scott attempted to purchase his freedom and was denied, so he sued for his family's freedom.1 In 1850, the St. Louis circuit court ruled that Scott was free, but appeals and counter appeals went all the way up to the Supreme Court, which threw out the verdict on the grounds that as a man of African descent, Scott didn't have standing to sue in a court of law. In fact, the Supreme Court ruled that "When the Constitution was adopted, [those of African descent] were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its 'people or citizens.' Consequently, the special rights and immunities guarantied to citizens do not apply to them."2

The second case focused on a woman named Carrie Buck and the state of Virginia's desire to forcibly sterilize her against her will. Virginia had recently passed a law that "the state could sterilize anyone found to be incompetent because of alcoholism, epilepsy, feeblemindedness, insanity, or other factors."3 Buck was presumed to be feeble-minded and to have come from a mother who was similarly classified as such. You can read the details here, but the Supreme Court agreed that the state had a compelling interest in forcibly sterilizing Buck against her will, with Justice Oliver Wendell Holmes famously pronouncing "Three generations of imbeciles are enough."4

Redefining What It Means to Be Human

Some would point to both these decisions as wrong because the Court did not grant more freedom to the plaintiff. But it isn't freedom in the sense of the unrestricted ability to do what one wants that was at issue. For example, there is a real compelling interest to incarcerate dangerous criminals. If granting freedom for freedom's sake is all that we should recognize, then prisons don't make much sense.

It isn't freedom where the courts went awry, it was the fact that the court tried to override the natural understanding of what it means to be human. The Dred Scott decision sought to redefine the concept of a person, stating that the government has the power to define just who qualifies as a person. If your family is from the African continent, then the government is within its right to redefine your personhood. The Buck v Bell decision argued that the government had the right to redefine who is deserving of having children or which genes should be passed on to future generations.

Nature and Natural Law

 In both cases, nature and biology would say that there is nothing fundamentally different in Mr. Scott's makeup that makes him any less human and therefore any less a person than anyone else. In Carrie Buck's case, the Court allowed the state to break the natural function of her body and stop it from reproducing. In both cases, the Courts didn't recognize the facts that natural law had established but thought that government institutions could redefine natural law into whatever meaning they wished.

Today, there are two other cases that divide the people. In the 1972 Roe v Wade decision, the Court granted the states the power to redefine an unborn baby as something other than a person, and, just like Dred Scott, without guarantee of the rights and protections that all citizens enjoy. In the as yet undecided same-sex marriage cases, the Court is weighing whether states can refuse to redefine marriage to include same-sex couples. States that make such inclusions are also ignoring the natural process that every child is the product of a man and a woman and marriage is simply the codification that process as the best environment for children.

The Danger of Tyranny

We see the decisions against Scott and Buck as coercive intrusions of government over flexing its power to thwart what "Nature and Nature's God entitle them" as the Declaration puts it. Governments must maintain law and order. However, any government that believes it can redefine any aspect of natural law is not creating more freedom; it is creating enslavement. For even if you are a proponent of the new definition, you are conceding that the Government has the power to ignore nature and redefine any aspect of humanity that it so wishes. Once we cede such power to the courts or the government, there are no limits to the tyrannies they could enact. Natural rights must be anchored in natural law and natural law is reflected in our natural biology. When legislation or legal opinions contradict the basic functions of human beings, we all lose.

References

1. PBS. "Dred Scott's Fight for Freedom." PBS. WGBH Educational Foundation, 1989. Web. 19 Mar. 2015. http://www.pbs.org/wgbh/aia/part4/4p2932.html.
2. Scott v. Sandford. 60 U.S. 393. U. S. Supreme Court. 1857. Legal Information Institute. Web. https://www.law.cornell.edu/supremecourt/text/60/393.
3. Smith, J. David and the Dictionary of Virginia Biography. "Carrie Elizabeth Buck (1906–1983)." Encyclopedia Virginia. Virginia Foundation for the Humanities, 31 May. 2013. Web. 24 Jun. 2013. http://encyclopediavirginia.org/Buck_Carrie_Elizabeth_1906-1983.
4. Buck v. Bell, Superintendent of State Colony Epileptics and Feeble Minded, 274 U.S. 200.U.S. Supreme Court. 1927. American Legal History – Russell. 18 November 2009. Web. http://www.houseofrussell.com/legalhistory/alh/docs/buckvbell.html.

The Supreme Court, Christian Prayer, and Town Meetings

The Supreme Court decision in the Town of Greece v. Galloway case is a step in the right direction for religious freedom. The case centered around Greece, a Rochester, NY suburb, inviting local pastors to open their town meeting in prayer. The town did not preview the prayers nor did they limit the invitation to any religious affiliation; they simply opened the opportunity up to local clergy. It so happened that the clergy who asked to be included were all Christians and they (understandably) prayed Christian prayers.

However, the overt Christian terminology used in the prayers bothered at least two town residents (identified by USA Today as an atheist and a Jew) who filed suit and petitioned the court not to ban the practice of opening the meeting with prayer, but "to limit the town to 'inclusive and ecumenical' prayers that referred only to a 'generic God.'"1 The Second Circuit Court of Appeals had upheld the lawsuit, but the majority of the Court disagreed and overturned the verdict on a 5-4 decision. Writing for the majority, Justice Kennedy made some lucid points about the problems with the suit. I'd like to look at some key points. (All emphasis in the quotes below is mine.)

The Historical Precedent for Prayer

First, Kennedy pointed to both the historical and legal precedent for allowing government meetings to be opened in prayer. Citing both a 1983 decision (Marsh) on the government funding of chaplains and a 1989 case of groups displaying specifically religious holiday displays on public lands, Kennedy writes:

There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted "by reference to historical practices and understandings." … Respondents' insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation's history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom."

Kennedy further notes that the First Congress, just after crafting the First Amendment, voted to appoint chaplains and they opened their meetings in prayer, thus demonstrating that their intent was not to quell these activities.

The Problem of Governmental Censoring of Prayer

Kennedy then notes that if the law were to require governmental agencies to preview and approve or disallow specific prayers based on their use of sectarian language, it would create a much bigger problem. It would, in effect turn a bureaucrat or the court itself into the faith police. This would open up a can of worms. Government, the courts, or even the majority view judging which prayers should be banned and which are permissible becomes subjective and makes government more involved in religion than the current practice does.  He writes:

To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents' contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech.

Understand that the Government isn't the Final Word

Another salient point Kennedy makes is that respectful, ceremonial prayer before a government assembly, no matter which creed administers it, serves a function for all. By appealing to God and asking a blessing on the proceedings, the invocation essentially declares that governments and those that run them are never the last word. People are fallible. Political organizations are fallible. We must recognize that while our representatives seek to make the right decisions and serve the will of the people as best they can, their decisions are not themselves foolproof.

The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not "exploited to proselytize or advance any one, or to disparage any other, faith or belief."

Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.

The Difference Between Offense and Coercion

The last key phrase I'd like to point out is one that I would hope extend well beyond this particular decision. Our culture today is sick. People have assumed that the pursuit of happiness somehow means that they should never feel any discomfort or disagreement while participating in a public function. Kennedy succinctly dismisses this claim:

In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion.

To that I say "Amen."

References

1. Town of Greece, New York v. Galloway et al. 572 U.S. ___. Supreme Court of the United States.
2014. www.SupremeCourt.gov. Web. 5 Mar. 2014.