As noted in this writer’s most recent article, the Supreme Court decisions of the last fifty years which have declared social conservative positions related to sexuality to be unconstitutional in law have their ultimate source in the court’s own moral intuition (and that of a like-minded academic world), not the text of the Constitution. Like the court’s separation of church and state decisions from the mid-twentieth century on, which are less concerned with impartiality between religions and more concerned with striking a balance between religion and irreligion, they were simply imposed by the court on an unwilling nation, and maintained against popular protest by a cultural elite on the strength of its own conviction.
As noted in the previous article, the “right of privacy” which lies at the heart of the court’s decisions on sexual relations was cast in personal terms, as a right to sexual choice in the intimacies of marriage, and this was soon expanded, although not by good logic, to a general right of privacy held by individuals. In the crucial Eisenstadt decision (1972), it appears to have been claimed that equality demands that the rights of married persons be held by all persons (which would really abolish marriage if consistently applied, as indeed, many years later, seems to be happening). All of the concern for personal feelings and dignity in the most intimate matters of life of the original Griswold decision (1965) was carried over in later decisions from an argument about the private nature of marriage into arguments about personal freedom and dignity for all persons in making choices about sexual behavior.
It is from this viewpoint that we now are confronted with the claim that the demands of the sexual revolution override the classic freedoms of the First Amendment. Freedom of religion is disregarded where SOGI (sexual orientation and gender identity) laws apply; freedom of association is threatened by campus non-discrimination requirements and barely survived in the Boy Scouts of America vs. Dale decision of a decade and a half ago; freedom of speech and of the press are in much better shape in this country, with hate speech laws not allowed by the Supreme Court. Nevertheless, the hate speech doctrine, in which truth is no defense, is a doctrine used by the cultural left in advancing the sexual revolution, and has been enacted into law in other countries. In an appallingly perverse twist, the right of privacy, which is the legal weapon of sexual license, and was supposed to guarantee personal dignity, is now the ultimate justification for denying privacy and dignity to most persons in public rest rooms, lest a tiny minority be subjected to indignity (in their own minds).
The Supreme Court’s edicts, which have the effect of constitutional amendments, have substantially brought this deplorable loss of freedom and democracy to pass. While it is sometimes possible to enact laws that defend religious freedom, liberty of conscience, and unborn children into law, they can only be very modest, even when passed by Congress, and even then are faced with legal challenges in an environment in which protecting conscience and life is held to be aggressive, irrational, and a personal attack. To repeat, the Supreme Court’s decisions on sexuality have no basis in the text of the Constitution, which does not mention marriage, the family, or sexual behavior, and which was enacted by people who considered that traditional Judeo-Christian sexual morality was correct for all mankind for all time. The court’s contrary reasoning is that freedom and equality are constitutional ideals, and now we know better about sexuality than the framers of the Constitution (although a large part of the public disagrees, including many very well informed people).
The court’s real claim to power rests on “substantive review” of laws, which is based on the claim that the Fifth Amendment (guaranteeing liberty), and the Fourteenth Amendment (guaranteeing the equal protection of the laws) mandate not only the equal application of laws to all citizens, but also fair law. Used by the court in the era of laissez-faire capitalism to invalidate laws aimed at restraining that view of economics, it was repudiated by the court appointed by Franklin Roosevelt in order to protect the New Deal, only to be practically revived in the second half of the twentieth century to protect the sexual revolution. While Justice William O. Douglas, the author of the Griswold decision, “declined” the “invitation” to revive substantive review generally, he effectively did so on sexual issues. The only other Roosevelt appointed justice remaining on the court, Hugo Black, commonly regarded as a liberal, delivered a devastating rebuke in his dissent:
“I repeat so as not to be misunderstood that this Court does have the power, which it should exercise, to hold laws unconstitutional where they are forbidden by the Federal Constitution. My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of the States to govern themselves which the Constitution plainly intended them to have.”
Doesn’t the Ninth Amendment say that there are rights not mentioned in the Constitution? It has to be kept in mind that this amendment was enacted shortly before judicial review made its very modest appearance in the Marbury vs. Madison decision (1803; in which the Court actually declared unconstitutional a law expanding its own authority), and certainly well before the doctrine developed into its monstrous form of today. The Founders certainly did not intend for the Supreme Court or other courts to invalidate state laws they thought violated rights not mentioned in the Constitution. Justice Black explained in his dissent that the framers were warning that the Constitution was not to be understood as saying that:
“those rights which were not singled out [by the Bill of Rights] were intended to be assigned into the hands of the General Government [the United States], and were consequently insecure.”
The Tenth Amendment speaks of powers (saying that the federal government has only the powers explicitly granted it), while the Ninth Amendment speaks of rights (saying that there are rights held against the federal government, enumerated in the Bill of Rights, but these do not mean that any power unaffected by the Bill of Rights is held by the federal government).
One may ask where the Supreme Court finds the audacity to impose its own moral intuition on the country. The real power held by the court is that of an authority with a sacred power to discern moral truth. That is the way in which its decisions are treated by much of our society, and yet everyone, including the court, would deny that it has any sacred power. Chief Justice Earl Warren, the author much of the liberal judicial activism imposed on the country, said quite honestly in an interview with the reporter Harry Reasoner after his retirement that the Supreme Court had “only its conscience” to appeal to. This sounds noble, but why is the conscience of the Supreme Court justices superior to the very different consciences of other people, some of them very well informed?
Christians do believe that there is an authority with a sacred power to declare moral truth, namely God, and that He has spoken in the Bible. There was a time when the nation sufficiently shared this view that it was not unreasonable to enact Biblical precepts into law without further justification, but today, one can understand that people want to know why certain Biblical precepts make good laws for the state. Social conservatives endeavor to give good reasons as to why traditional morality is the best basis for society, and is a reasonable basis for law. Yet on sexual issues, the court’s finding of a right to sexual choice which is fundamental to personhood really means that Biblical doctrine cannot be enacted into law, because it would violate a right to personal dignity the court has found by its own moral intuition.
The morality of personal autonomy the Supreme Court mandates is inimical to the Biblical morality of sin and salvation, indeed, the first move in either evangelism or the religious instruction of children is to say that people are sinners who should feel ashamed and be punished. Only then is there “good news.” But it is precisely this morality and message of personal responsibility, judgment and punishment which the court’s morality of autonomy holds to be oppressive. And since it is the Supreme Court and lower courts that are decreeing a morality of personal autonomy, the wider society is now being organized around a principle of self-law (which is finally lawlessness) inimical to God’s revelation in the Bible.
This stark conflict of moralities, between the Biblical condemnation of sin and the liberationist condemnation of Biblical morality as oppressive, explains the intensity of the culture war over Biblical morality. The Supreme Court’s decisions advancing homosexual liberation, Romer vs. Evans (1996), Lawrence vs. Texas (2003), and Windsor vs. United States (2013) are all intensely hostile to Biblical morality, attacking it as hateful, demeaning, and an attack on personal dignity. While the court found it necessary to refer to such constitutional doctrines as liberty and equality, it is obvious that the real controlling consideration is the claim of personal pain. That being the object of moral condemnation is painful is certainly true, but that it is therefore wrong requires the further demonstration that the condemnation is unjust. And any examination of the justice of the claims of Biblical sexual morality, one widely held from time immemorial and reinforced by the devastation wrought by promiscuity in our day, are precluded by the claim of moral autonomy.
American Christians who are serious about obeying God now have a very difficult future. Not only will they be penalized in business and the professions by the requirement that they contribute to sinful behavior in the provision of goods and services, consideration of employment, and housing, but the Christian subculture itself, established to enable Christians to obey God in the world and provide a refuge from secularization, will be attacked as contrary to the public good and impaired or destroyed through such devices as the loss of tax exemption, loss of accreditation, and the instituting of requirements that a Biblically faithful organization cannot meet. This ominous prospect, already in some measure occurring, was outlined in a recent article discussing Senator Mike Lee’s proposed legislation to protect religious organizations.
The first and overriding consideration of disciples of Christ is to obey God, regardless of the consequences. That may mean the loss of business and professional opportunity, the loss of laudable Christian achievement already existing in these areas (as witness Catholic adoption services), and the destruction of the much of the Christian subculture. But we need to stress to the larger society when and if it does happen, that the reason is not to be found in any false analogy to racism, which rested on superficial differences between people with no firm basis in Christian doctrine, or any threat of a religion dominating society (not a serious possibility in the contemporary West), and certainly not on the text of the Constitution, but on the sensibilities of the secular left, which managed over several decades to convert its desire for sexual license into constitutional law on the basis of the moral intuition a Supreme Court receptive to its wishes. We know that the future belongs to God, and will be to His glory, but we may reasonably hope that future generations will not see sensibilities as a worthy justification of the judicially enforced sexual revolution. (“Dignity, the Constitution, and the Bible”, originally posted HERE)
Follow Joe Miller on Twitter HERE and Facebook HERE.
