Lanterns: Same-Sex Marriage Decision to Be Revisited

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Same-Sex Marriage Decision to Be Revisited

On June 26th, Fox News reported that the U.S. Supreme Court had announced that “It will hear the case of a suburban Denver baker who refused to bake a wedding cake for a gay couple on faith-based grounds.” [Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission]

It will, in reality, be deciding if discrimination laws trump the First Amendment.

Coincidentally, it was two years ago, to the day, since the SCOTUS ruled 5–4 in Obergefell v. Hodges that state laws forbidding the marriage of people of the same sex are unconstitutional.

The majority redefined the meaning of marriage—based upon non-existent provisions in the Constitution. By so doing, they have redefined the whole of human tradition and biology as well. Who knew courts had that kind of power? Clearly, such a decision belongs to the states, and not in the hands of five unelected people.

With one state legislature after the other allowing gay marriage anyway, there was no need for the High Court to usurp their rights. Ironically, the Congress could have preserved the states’ right to make that decision by simply passing a bill declaring that the Supreme Court did not have jurisdiction over the definition of marriage. Yes, a Congress with integrity would have seen this coming and would have used its the power to prevent it.

“What?” you ask: “How dare you say the power of the Supreme Court is not Supreme!

Daniel Horowitz, writing in Conservative Review, said:

“Article III, Section 2, Clause 2 of the Constitution explicitly grants Congress the authority to regulate and limit the appellate jurisdiction of the Supreme Court:

“In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations, as the Congress shall make.” [emphasis added]

The reason no court should have the power to redefine marriage is because that union is far more than a legal arrangement: it is infused with enormous religious significance. Such a decision was sure to deeply offend many who are religious.

However, America is now a nation where the wishes and needs of the many are subordinated to those of the few. We’re not just a nation where the majority cannot mistreat the minority—that would be fair—no: here the minority gets to dictate to and mistreat the majority. There have been a spate of cases with draconian punishments being meted out by liberal judges to believers who refuse to be involved in gay weddings.

Congress could also have foreseen that Obergefell would inevitably collide head-on with the First Amendment freedom to exercise one’s religion.

But, it seems the five justices could barely wait to carry out the Obama agenda by fabricating a constitutional right for gays to marry, and subordinating the right to free exercise of religion, which actually is enumerated in the Constitution.

According to the National Health Interview Survey, in 2014, 1.6 percent of Americans identified as gay or lesbian, out of which 646,464 live as same-sex couples. By no means, all of them want to be married.

On the other hand, 50% of black Protestants, and 65% of white evangelical Protestants oppose same-sex marriage, according to Pew Research. Operation World, an award-winning “volume of prayer information,” puts the number of evangelicals in the United States at 91,764,554.

In addition, Orthodox Jewish groups oppose the decision: The Union of Orthodox Jewish Congregations of America said: “We reiterate the historical position of the Jewish faith, enunciated unequivocally in our Bible, Talmud, and Codes, which forbids homosexual relationships and condemns the institutionalization of such relationships as marriages…. Our religion is emphatic in defining marriage as … between a man and a woman. Our beliefs in this regard are unalterable.”

Agudath Israel of America:

“The Torah, which forbids homosexual activity, sanctions only the union of a man and a woman in matrimony…. We do not seek to impose our religious principles on others; it is our sincere conviction that discarding the historical definition of marriage is not a positive step for civilized society.”

Yet those five justices went over the Constitution with a microscope and tweezers, in their desperation to accommodate the minority. So far, in the lower courts, their decision has been at the expense of Americans of faith, who are guaranteed the right to exercise their religion, under the First Amendment.

But, in the majority decision, Kennedy said this:

“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths… The same is true of those who oppose same-sex marriage for other reasons.” [Emphasis added.]

Why didn’t he say Americans of faith can freely “exercise” their religious freedom—the very first protection the founders penned into the First Amendment? It's very likely because he intended for same-sex marriage rights to trump the free exercise right.

Saying the First Amendment will protect “religious organizations and persons” as they teach their faith, clearly, means the Amendment’s free speech protection will apply—not its free exercise of religion protection.

This is underscored by his next sentence, saying those who oppose same-sex marriage for “other reasons” would have the same rights as the faithful—the right to speak about gay marriage being a sin—but not to act on it—in one minister’s case, by refusing to perform gay marriages; and bakers and floral artists refusing to participate in them. SCOTUS would give them the same rights as a guy on a soapbox: to talk. Perhaps we can convert the DC mall into a kind of Hyde Park, where any crackpot can proclaim his opinions, for the benefit of tourists, who may pass by.

Justice Alito questioned Solicitor General Donald B. Verrilli Jr., who was arguing for the same-sex couples on behalf of the Obama administration. (That’s right: the White House was pushing this, with our tax dollars):

Justice Alito cited the case of Bob Jones University, a fundamentalist Christian university, where the Court held that the college was not entitled to a tax exemption if it opposed interracial marriage. He asked: “Would the same apply to a university or a college if it opposed same-sex marriage?”

Verrilli replied, “I don’t deny that, Justice Alito.  It is —it is going to be an issue.”

Obergefell inevitably led to lawsuits by gay activists against ministers and religious merchants, to force them to change their beliefs.

It is, however, doubtful that lawsuits will be launched against mosques and imams.

However, constitutional scholars declared:

“The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for the violation of laws, as long as that violation is made for religious reasons.  In the terms of economic theory, the Free Exercise Clause promotes a free religious market by precluding taxation of religious activities by minority sects.”— Richard Posner and Michael McConnell, “An Economic Approach to Issues of Religious Freedom,” University of Chicago Law Review.

Here is the central issue: The Left’s War on Religion. If the SCOTUS does not affirm the right of the faithful to exercise their religion, Americans who love their country, who decry the incessant violation of our Constitution must let religious leaders know we have their back. And to do so, recall that the First Amendment also guarantees “the right of the people peaceably to assemble.” Since all three branches of government have betrayed the nation and violated the Constitution, the American people must stand up by protesting on the local level.

Organize a protest, and do not fail to include Blacks and Hispanics: both groups are intensely religious.

Do not be intimidated by the government. There could be no more fearsome government than that of Nazi Germany, but a unique protest was launched by Aryan women against Nazi Germany’s imprisonment of 1700 of their Jewish husbands. This was the only public German protest against the deportation of Jews. Barbara Ash tells the story of the Rosenstrasse Protest:

“Day and night for a week in early 1943, hundreds of unarmed German women did something that was unheard of in Nazi Germany.

“They stood toe-to-toe with machine gun-wielding Gestapo agents and demanded the release of their Jewish husbands from Adolph Hitler’s murderous grip. The men were locked up in the Jewish community center in the heart of Berlin, victims of Hitler’s ‘final roundup’ of German Jews.”

“The women’s courage and passion prevailed: As thousands of other Berlin Jews were crammed into cattle cars and transported to Auschwitz, the Jews married to “Aryan” German women were set free.”

 

Written by Bob Bennett

Bob Bennett, a NY-based writer, has written op-eds for the WSJ and a cancer medical journal; op-eds and travel pieces for the NY Post and a cover article for the Jewish Press. He has also appeared with his wife on Fox News, discussing Obamacare.

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