Coming Attractions at the Supreme Court Theater of the Absurd

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As usual in mid-June, the hearts of Supreme Court junkies beat ever more rapidly as they eagerly await “blockbuster” ex cathedra diktats from on high. Of great interest is whether Justice Anthony Kennedy meant what he said just two years ago, when five justices overpowered and insulted (Scalia, pp. 21, 25) four justices to declare unconstitutional an overwhelmingly enacted federal law restricting marriage to opposite sex couples. Writing for the five justices, Kennedy promised (pp. 25-26) that they had “confined” their ruling to requiring federal recognition of same-sex marriages in states choosing to make them lawful. However, what is now awaited is whether five justices will further abuse their power by barring any State from making same-sex marriage unlawful.

Justice Scalia added yet another warning (24) regarding a Kennedy promise. “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”

The five-justice fiat two years ago was itself predicted (5-6) by Scalia a decade earlier: “… Every single one of these State laws … against bigamy, same-sex marriage, adult incest, prostitution … bestiality, and obscenity … is called into question by today’s decision….” His then scoffed-at prediction was vindicated in 2013.

If five justices, including Kennedy, again prove Scalia prescient, this “raw judicial power” spectacle will not be over.

Organizations long-advocating sex between men and boys, and between humans and animals (see also) doubtless anticipate their turn at having five human beings who happen to sit on the Supreme Court proclaim that the Constitution protects their “lifestyle choices”—regardless of duly enacted laws, historic beliefs and traditions, and the wishes of millions of Americans, often majorities, who still adhere to those beliefs.

Fanciful you say? Shortly after the last “confined” gay marriage decision, a group wedding for police dogs took place halfway round the world, as

nine pairs of police sniffer dogs dressed in shawls, hats and socks were placed on a decorated platform like those used in traditional Buddhist weddings.

* * * *

The dog marriages were registered by an official in the presence of a crowd of veterinary surgeons, medical doctors, top police officers and the public at a ceremony …. Local television showed the dog couples later being driven away in a decorated police jeep for their “honeymoons.”

Yes, it did take place halfway round the world. But in this age of instant worldwide communication, rest assured that once anyone anywhere concocts any far-out scheme, it will arrive here sooner or later, probably sooner.

And don’t be surprised if five justices give it serious consideration.

What is NOT Stated Here

The probable coming same-sex marriage decision will be but the latest illustration of a long history of judicial abuse of power. Nothing above should be misconstrued or—more likely—misrepresented as endorsing or opposing either side’s position(s) in the same-sex marriage decision by likely no more than five out of nine human beings who happen to be Supreme Court justices. Rather, the position taken here is that these five power-wielding mere mortals have no business deciding this at all. They have absolutely no legitimate Constitutional authority whatsoever to impose their personal moral values upon well over 300 million people in what was founded as a representative democracy.*

Dog-marriage is a reductio ad absurdum of what all too often has been perpetrated by justices, whose happenstance occupancy of high court black robes does not confer upon them superior morality, wisdom or rationality—contrary to their inflated opinion of themselves. Justices Scalia and Thomas and Chief Justice Rehnquist were once left breathless (p. 12) by fellow justices’ “arrogance.” More recently, Scalia objected to (2) five justices’ “jaw-dropping … assertion of judicial supremacy over the people’s Representatives in Congress and the Executive.”

Not infrequently, judicial arrogance is accompanied by absurdity. With little effort, one can write a long article, or perhaps even a book, filled with examples of justices’ absurdities. A few should suffice to show that these are not confined to same-sex marriage, not by a long shot.

First, justices once declared (p. 41n) that raping a sixteen-year-old, under threat of death three weeks after she gave birth, was—unharmful! Second, few Americans realize that justices have created what they call a constitutional right exclusively for depraved human beings already convicted of the most gruesome acts to commit additional depraved violence free from any punishment whatsoever. (If five justices want something, they label it a “constitutional right,” regardless of whether or not highly literate people can find it in the actual Constitution.) Third, justices declared that a young man, who sexually assaulted four elderly women—including his grandmother—and murdered one of them, should be allowed to “succeed with the argument” that he should not be executed because he was only dangerous to old ladies (pp. 9-10) and would not be a threat if sentenced to life without parole (which, in reality, cannot be guaranteed). Even so, three out of four opinions on behalf of the rapist-murderer, occupying 19 pages, did not mention “grandmother” at all! Fourth, it is beyond absurd for justices to decree that no judge or jury can ever find (15-19) that a young man nearly 18 years old is mature enough to fully understand that premeditated torture-murder is immoral and unlawful, but that judges may rule (pp. 899, 970) that 12-year-old girls are mature enough to decide to have an abortion. (It should not surprise anyone if, not long from now, five justices rule that 12-year-old boys can be mature enough to validly consent to have sex with 45-year-old men.)

Popular Support Seeking Judicial Fiats

If popular support for same-sex marriage is growing, as advocates claim, why don’t they just ask elected legislators rather than unelected judges to write or re-write laws? Moreover, in states with initiative and referendum, a popular majority can change the law without legislators. After a California majority voted for Proposition 8 to restrict marriage to one man and one woman, it was beyond passing strange when opponents of that proposition went to court seeking its nullification by judicial fiat while, at the same time, claiming that a majority of voters now supported same-sex marriage. Why wasn’t another referendum sought for repeal? Recently, Catholic Ireland adopted same-sex marriage by referendum. Also, advocates already have obtained much from elected officials. If support is as widespread as claimed, it should be unnecessary to short-circuit the political process through judicial fiat, whose legitimacy is neither respected nor accepted by millions. (Of course, polls are always open to manipulation, and at least one recent poll was recently exposed as a fraud, in purporting to show wider than actual support for same-sex marriage.)

The advantage of legislative over judicial lawmaking is that justices “pre-empt [p. 20] the democratic debate” by “inscribing… current preferences…into our Basic Law.” These are made unchangeable (p. 567) by “remov[ing them] from the democratic process and writ[ing them] into the Constitution,” which is thus judicially amended to include sweeping rules embodying any five justices’ personal values.

For example, when they constitutionalized a right to homosexual sodomy, justices declared (p. 11): “liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” As quoted above, Justice Scalia objected that this called into question all state laws concerning sex. More recently, Justice Alito suggested that, if States are constitutionally prohibited from restricting marriage to one man and one woman, the same constitutional rule would require the States to permit incest (p. 33) and group marriage (pp. 17-19).

These examples illustrate Judge (and later Justice) Benjamin Cardozo’s famous reference to the “tendency of a principle to expand itself to the limit of its logic.” That often happens when justices usurp the prerogatives of elected officials by deciding hotly contested political issues about which the Constitution is silent. By contrast, if these issues are left to elected officials to resolve after public debate, the law can be adjusted and re-adjusted. Some laws can then be left in place and others changed, without trying to turn them into irrational one-size-fits-all legislation. To have same-sex marriage, there is no need for blanket principles that apply to all sex matters, including man/boy and human/animal sex, incest, bigamy, polygamy—or dog weddings.

Justice Scalia repeatedly has told audiences that, when the Constitution says nothing about an issue, “persuade your fellow citizens.” Instead, many activists, apparently lacking confidence in their own persuasiveness, prefer to short circuit the process. Two decades ago, Scalia (joined by Rehnquist, White and Thomas) warned (p. 1002):

[B]y foreclosing all democratic outlet for the deep passions [abortion] arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

And two years ago, Scalia repeated (p. 26):

We might have let the People decide. But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.

For decades, justices have been arrogantly, illegitimately —and absurdly—usurping legislative prerogatives, forcing their personal morality down the throats of everyone else.

Justice Thurgood Marshall’s former law clerk, Harvard Professor Mark Tushnet, asks: “Why do we let them get away with it?”

Why indeed!!

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Same-Sex Marriage: The Sanctity of an Oath and the Duty to Disregard

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The U.S. Supreme Court will issue its opinion in the Obergefell v. Hodges case later this month. The complainants in the four cases consolidated under Obergefell ask the Supreme Court to, in effect, strike down state laws limiting recognition of “marriage” to the union of one man and one woman. Their complaints allege violation of equal protection and/or due process safeguards found in the Fourteenth Amendment of the U.S. Constitution. State officials in my home state of Indiana, as well as the other sovereign states, are duty-bound, as a result of their oath of office, to disregard such meddling in state marriage policy by the federal government – especially by the Supreme Court.

It’s a well-established principle in government that personnel subordinate to a higher command authority are required to follow only “lawful” orders directed to them. This principle is made express in the military, where the Uniform Code of Military Justice (Title 10 of the U.S. Code) requires that “any person subject to this chapter who … violates or fails to obey any lawful general order or regulation … shall be punished as a court-martial may direct.”

Note that a member of the Armed Services of the United States is subject to court-martial if he “violates or fails to obey” a “lawful” precept directed to him. The obvious inference is that a member of the armed services is not subject to punishment for his refusal to obey an order which is not “lawful.” At least since Nuremburg, military law does not allow a soldier to argue in a court martial proceeding that he was “just following orders” if those orders were unlawful.

How do these principles apply in the context of the judiciary? Article III of the U.S. Constitution expressly only creates “one supreme Court,” and then authorizes Congress to create courts “inferior” to the Supreme Court. Section 27 of the Judiciary Act of 1789 mandated that “a marshal shall be appointed in and for each [judicial] district …, whose duty it shall be … to execute throughout the district, all lawful precepts directed to him, and issued under the authority of the United States.” Once again, marshals are empowered to execute only “lawful” orders issued by the judiciary. If in enacting the Judiciary Act of 1789, Congress considered all judicial orders to be lawful, it would have not included the word “lawful” in that statute. If federal officials are bound to execute only those “precepts” which are “lawful,” how then should state officials consider their duty to faithfully execute their offices under the U.S. Constitution?

In order to understand the duty of a state official, it is necessary to understand the doctrine of federal “preemption.” Constitutional law scholars and lawyers routinely assert that federal law and federal judicial edicts “preempt” state and local law and state judicial edicts. That is, whenever the federal government takes an action, any state or local action to the contrary is “preempted” by the federal action. The doctrine of preemption is grounded in the Supremacy Clause in Article VI of the Constitution. The Supremacy Clause states:

“This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land;… any thing in the constitution or laws of any state to the contrary notwithstanding.”

Should the majority of Supreme Court justices believe that the U.S. Constitution prohibits states from defining marriage as only between one man and one woman, it will be widely assumed that the Supremacy Clause of the U.S. Constitution “preempts” the “constitution or laws of any state to the contrary” solely because of the opinion issued by the High Court. However, the doctrine of preemption is not unlimited, as those lawyers and politicians who embrace the doctrine of judicial supremacy seem to believe. Let’s re-examine the original plan.

In explaining the supportive role that the states would play in the proper operation of the federal government, Alexander Hamilton put it this way in Federalist Paper No. 27:

“the legislatures, courts and magistrates of the respective members [i.e., states] will be incorporated into the operations of the national government, AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws.” [Capitalization original.]

Thus, properly understood, preemption only applies to the “JUST and CONSTITUTIONAL authority” of the federal government. Given that (i) the law of domestic relations and marriage policy has never been made the “JUST and CONSTITUTIONAL AUTHORITY” of the federal government (except for the District of Columbia and federal territories) and (ii) the Equal Protection Clause of the Fourteenth Amendment applies only to a limited set of protections in state-administered legal processes, there is no “lawful” basis for a claim of preemption in this case.

The duty to disregard any federal judicial usurpation of the states’ lawful jurisdiction of marriage policy flows from another constitutional clause which invokes a duty to an even higher authority than any temporal legal system, federal or state. Immediately following the Supremacy Clause, Article VI of the Constitution provides that “the members of the several state legislatures, and all executive and judicial officers … of the several states, shall be bound by oath or affirmation, to support this constitution.” Known as the “Oath or Affirmation Clause,” this provision requires every state official to swear or affirm their fidelity to the U.S. Constitution. In explaining the profound relationship between the Supremacy and the Oath or Affirmation Clauses, Alexander Hamilton highlighted the limited application of both. Once again in Federalist Paper No. 27, Hamilton remarked,

“the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which, all officers legislative, executive and judicial in each State, will be bound by the sanctity of an oath.” [Capitalization original.]

It’s clear that state officials are “bound by the sanctity of an oath” to observe “the laws of the Confederacy.” However, that oath is limited in its application to the “ENUMERATED and LEGITIMATE objects of” the Confederacy’s jurisdiction. The power to overrule the states’ restrictions on marriage policy has never been added to the “ENUMERATED and LEGITIMATE objects of” the jurisdiction of the United States. Therefore, without the future addition of such authority through the process set out in Article V for amending the federal Constitution, no order pursuant to any such opinion is “lawful.”

Finally, it cannot be overemphasized at this juncture that no provision of the U.S. Constitution elevates an opinion issued by the federal judiciary — including an opinion issued by the U.S. Supreme Court — to the level of the “supreme law of the land.” Indeed, there is only one time that I have ever heard that the U.S. Supreme Court was so consumed with pride to have even uttered such a radical principle. See Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“[T]hat the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’”).

This aberrational statement of the Supreme Court should be viewed as a very lonely exception to the view of Blackstone as embraced generally by our Framers that “the law and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law.” I. W. Blackstone, Commentaries on the Laws of England 71 (Univ. Chi. facsimile ed. 1765).

Additionally, no provision of the U.S. Constitution obligates any elected official — federal or state — to “be bound by oath or affirmation, to support” an opinion issued by the federal judiciary.

If it had been the intention of the Constitution’s framers to exclusively delegate all questions of Constitutional finality to the unelected, life-tenured members of the U.S. Supreme Court — and to relegate every other elected office — federal and state — to a position of subservience to the decisions of that Court, Article VI of the United States Constitution would have been the place in the U.S. Constitution where this peculiar doctrine would have been made obvious. From its omission, it is clear that this was never the Framers’ intent.

Therefore, state officeholders remain bound by the sanctity of the oath they took which binds them to uphold their respective state constitutions and the laws which define and regulate marriage in their particular member of the Confederacy. They cannot be considered “good soldiers” by doing anything else.

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John Hostettler served in the U.S. House of Representatives from 1995-2007; he is author of Ordained and Established: A Statesman-Citizen’s Guide to the United States Constitution (www.ordainedandestablished.com).

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

You Will Be Assimilated: The Same-Sex Marriage Bait-And-Switch

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You may recall Brendan Eich. The cofounder and CEO of Mozilla was dismissed from his company in 2014 when it was discovered that, six years earlier, he had donated $1,000 to California’s Proposition 8 campaign. That ballot initiative, limiting marriage to one man and one woman, passed with a larger percentage of the vote in California than Barack Obama received nationally in 2012. No one who knew Eich accused him of treating his gay coworkers badly—by all accounts he was kind and generous to his colleagues. Nonetheless, having provided modest financial support to a lawful ballot initiative that passed with a majority vote was deemed horrible enough to deprive Eich of his livelihood. Which is one thing.

What is quite another is the manner in which Eich has been treated since. A year after Eich’s firing, for instance, Hampton Catlin, a Silicon Valley programmer who was one of the first to demand Eich’s resignation, took to Twitter to bait Eich:

Hampton @hcatlin Apr 2

It had been a couple weeks since I’d gotten some sort of @BrendanEich related hate mail. How things going over there on your side, Brendan? BrendanEich @BrendanEich

@hcatlin You demanded I be “completely removed from any day to day activities at Mozilla” & got your wish. I’m still unemployed. How’re you? Hampton @hcatlin Apr 2

@BrendanEich married and able to live in the USA! and working together on open source stuff! In like, a loving, happy gay married way!

It’s a small thing, to be sure. But telling. Because it shows that the same-sex marriage movement is interested in a great deal more than just the freedom to form marital unions. It is also interested, quite keenly, in punishing dissenters. But the ambitions of the movement go further than that, even. It’s about revisiting legal notions of freedom of speech and association, constitutional protections for religious freedom, and cultural norms concerning the family. And most Americans are only just realizing that these are the societal compacts that have been pried open for negotiation. (Read more from “You Will Be Assimilated: The Same-Sex Marriage Bait-And-Switch” HERE)

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The Profound Consequences of Same-Sex Marriage for Business and the Professions

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I was a law student when I first learned of the consequences of not being politically correct concerning homosexuality. A former Miss America’s contract as the citrus growers’ brand-ambassador was allowed to lapse because she had successfully campaigned for the repeal of a pro-homosexual ordinance in Miami-Dade County. She was quoted as saying, “What these people really want, hidden behind obscure legal phrases, is the legal right to propose to our children that theirs is an acceptable, alternate way of life.” She was publicly humiliated — “pied” on national television — and her name — Anita Bryant — became synonymous with something called “homophobia” and “hate speech.”

As a new Air Force J.A.G. officer, my first court assignment was to represent the United States in an administrative discharge proceeding concerning a female service member. She was being kicked out of the service for allegedly engaging in homosexual acts. Even as an inexperienced young lawyer, I managed to prove that she had committed the requisite two homosexual acts. She was given a “general” discharge and sent back to the United States.

I don’t remember when thereafter I first noticed that there are only two instances in which “sex” occurs in the “ethics” rules for lawyers. Both are in the same, “anti-discrimination” provision: “A lawyer shall not willfully, in connection with an adjudicatory proceeding … manifest, by words or conduct, bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation towards any person involved in that proceeding in any capacity.” There it was — right there with the prohibition racial discrimination; a lawyer could not “manifest” any “bias or prejudice” based on “sexual orientation.” Hadn’t I done precisely that just a few years earlier? Hadn’t I done that on behalf of the United States government? And yet in that case, I hadn’t set out to prove that the female service-member was a homosexual. My task was limited to proving that she had engaged in homosexual conduct.

Then, suddenly, the issue of homosexual rights — that is, not the right to be a homosexual — but the right to openly engage in homosexual practices and be insulated from any push back from the rest of society — was everywhere. Suddenly it had become a daily staple of bar journals and legal news sources. I don’t remember when I first noticed that. Was it when California’s voters approved a referendum that “only marriage between a man and a woman is valid or recognized in California”? It must have been before then. It must have been as early as 1993 when I first noticed the enormous consequences of this new so-called right. That was the year Travis County, Texas legalized “domestic partnerships,” in order to attract business investment to Austin, the state capitol.

Not until the spring of 2015, however, did the consequences of this new “right” really began to sink in for me. That’s when I knew that people who for years had thought that the emerging collection of special protections for homosexual behavior was, “no big deal,” were flat wrong. Indiana Gov. Mike Pence had signed a “religious freedom” bill. The backlash, in the name of homosexual rights, was ferocious with the now infamous threats and boycott of a small-town pizza joint whose owners had the temerity to volunteer that they would decline to cater a homosexual marriage celebration.

So, now we know that Anita Bryant was right — at least partly so — when she embarked on her doomed campaign nearly 40 years ago. Ms. Bryant primarily worried about children being confronted with a dangerous alternative way of life. Today, all opponents of special homosexual rights have cause to be worried about their very survival — legal and economic. Anyone who opposes the new Manifesto of homosexuality and gender neutrality/gender identity is at risk.

Using statutes originally and primarily (if not exclusively) designed to protect blacks from discrimination, activist homosexuals have targeted bakers, photographers, and florists, seeking to force all of them to promote a “marriage” that they believe to be immoral. One day, such laws probably will be deployed against writers of articles like this one.

In Washington State, a judge ruled that a florist violated the state’s anti-discrimination laws when she referred a longtime customer to another florist for the wedding flowers for his homosexual marriage. In New York, a husband and wife shut the doors to their business hosting weddings on their family farm, after a court fined them $13,000 for refusing to host gay marriages in their home. In Colorado, a baker faced jail time and stopped baking wedding cakes entirely, after a court ruled that he discriminated against a gay couple when he refused to bake them a cake for their wedding. In Oregon, a court found similarly against another baker, and he may be forced to pay a homosexual couple up to $150,000 as penalty. The New Mexico Supreme Court held that a photographer violated the state’s anti-discrimination statutes by refusing to photograph a gay wedding. Newspapers likely will be forced to publish homosexual wedding announcements, in violation of their existing editorial control over what they publish.

Even pro-same sex marriage, libertarian, John Stossel has said that the gay marriage movement “has moved from tolerance to totalitarianism.”

To homosexual activists and their political supporters, it matters not one whit that homosexuality is not consistent with Biblical sexual morality.

In this brave, new, homosexual-friendly world, every licensed professional would be required to embrace the new orthodoxy — to bow down to the idol of “non-discrimination,” or be cast out of his profession. I was co-counsel on an amicus brief against same-sex marriage in the Obergefell case; the Texas Attorney General also filed an amicus brief on behalf of the State of Texas against same-sex marriage. Does that put us in violation of the ethics rule previously quoted?

If the U.S. Supreme Court forces same-sex marriage on the states, unless the states resist such a ruling, the legal system will be employed to squash resistance to the new order. Lawyers who oppose this not-so-brave new world will begin to lose their right to practice law for violation of the new so-called “ethics” of the profession. An Obama Department of Health and Human Services will push for all physicians who stand up for Christian morality to be stripped of their hospital privileges and medical licenses.

According to the advocates of homosexual marriage in the U.S. Supreme Court, the right to a homosexual way of life is enshrined in the penumbras and emanations of the Fourteenth Amendment’s guarantee of Equal Protection — or is it Due Process — or both. (Apparently, this even explains why the Civil War itself was fought.) In fact, this new right is said by these advocates to be so deeply embedded in the Constitution that it trumps the First Amendment’s guarantees of freedom of speech, freedom of religion, and freedom of association. And it empowers government to run aspects of our lives that it has no business controlling.

The same people who first claimed only to only want tolerance of their behavior will allow no toleration for other views. Will a physician be forced to perform an artificial insemination for a lesbian couple? Will a lawyer be forced to take a case defending gay marriage? Lawyers are already losing their “traditional prerogative to exercise absolute discretion in the selection of clients….” Provisions designed to advance the homosexual agenda have been incorporated into many state legal ethics codes. In California, for example, it is unethical to “discriminat[e] on the basis of … sexual orientation [in] employment … or [client] representation….” State Bar of California, Rules of Professional Conduct: Rule 2-400B. If you doubt this view of the future, read R. Beg, License to Discriminate Revoked: How a Dentist Put Teeth In New York’s Anti-Discrimination Disciplinary Rule,” 64 Albany L. Rev. 154 (2000).

I fear that the legal system has lost its way, and the case now before the U.S. Supreme Court could well lay the groundwork for government to assume the sort of totalitarian powers required to force everyone to yield to what most of us hopefully still believe to be immoral. But it doesn’t have to be that way. Instead, right-thinking people can and should not be afraid to assert their God-given rights. They should not — must not – fail in their duty to teach Biblical sexual morality to their children despite state-sponsored interference. They should accept the challenge and obey their conscience — even if that means refusing totalitarian orders to bow down at the altar of homosexuality. We did not seek this war, but if it comes, we must not shirk from it.

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J. Mark Brewer, a former U.S. Air Force JAG officer, is a lawyer in Houston, Texas. He was co-counsel on an amicus brief filed in the Obergefell case before the Supreme Court.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Candidly Speaking: American Jewish Leaders Fail to Respond to Obama’s Threats

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It is time to stop making excuses for American Jewish leaders and their failure to respond to US President Barack Obama’s latest charm offensive, expressing “admiration” for Jews and “love” of Israel as a mantle to cast moral aspersions against the democratically elected government of Israel.

Obama is clearly determined to undermine the standing of the newly elected Israeli government by embarking on a campaign to promote an utterly fictional narrative of the Arab-Israeli conflict, even in advance of the June 30 deadline of the “negotiations” with Iran.

He orchestrated interviews with journalists Jeffrey Goldberg and Tom Friedman, whom he uses regularly to convey his distaste for Israeli policies – and Ilana Dayan of Israel’s Channel 2 TV. Considered a tough investigative journalist, Dayan on this occasion acted as though she were launching an Obama fan club.

She failed to pose any challenging questions and instead provided openings for him to benevolently display his loathing for Prime Minister Benjamin Netanyahu. Obama also gave a major address to a Jewish audience at Washington’s Conservative Adas Israel congregation.

One of his acolytes, David Axelrod, recalls Obama – who for many years belonged to a church with an anti-Semitic pastor – describing himself as “the closest thing to a Jew” who has ever served as an American president. At Adas Israel, Obama even described himself as “an honorary member of the tribe” and called on Israelis and Jews to concentrate on “tikkun olam – repairing the world,” implying that universal humanistic values are more in keeping with Judaism than nationalism. (Read more from “Candidly Speaking: American Jewish Leaders Fail to Respond to Obama’s Threats” HERE)

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Marriage: It’s Not Political, It’s Biblical‏

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Dozens of books have been written in recent years by liberal theologians in an attempt to demonstrate that homosexuality, homosexual relationships, and homosexual marriage are fully consistent with Biblical Christianity. I have grown weary of reading that King David was a homosexual because he loved Jonathan, or that Sodom and Gomorrah were destroyed because of a lack of hospitality, or — my personal favorite — that the Bible never actually addresses the issue of homosexual behavior. I would suggest that the fact that some of such foolishness comes from persons who once professed to be Christians is yet further evidence of the fact that the nation — indeed the world — is well along in the Biblically-foretold age of apostasy. During such a period, we are warned about the prevalence of false teachers. How can we tell whether a teacher is false? Who can rely on? But for the fact that we have the Word of God, we would be adrift on such matters.

One ubiquitous question asked among Christians for a decade has been: What Would Jesus Do? A recent article by Dave Daubenmire thoughtfully addressed the topic: Would Jesus Officiate at a Same Sex Marriage? His article discusses how we can know, for certain, the answer to this question by studying exactly what His Father has revealed to us through the Holy Scriptures as to what He intended marriage to be. If you do not believe that the Bible is the Word of God, this article may mean nothing to you. But even if you don’t believe the Bible, I challenge you to read through it, so that you at least you can say you have heard the other side.

Before we address homosexual marriage it is imperative that we seek to know how the Definer of marriage identifies marriage. We begin in Genesis 2:18-25 18Then the LORD God said, “It is not good for the man to be alone; I will make him a helper suitable for him.” 19Out of the ground the LORD God formed every beast of the field and every bird of the sky, and brought them to the man to see what he would call them; and whatever the man called a living creature, that was its name. 20The man gave names to all the cattle, and to the birds of the sky, and to every beast of the field, but for Adam there was not found a helper suitable for him. 21So the LORD God caused a deep sleep to fall upon the man, and he slept; then He took one of his ribs and closed up the flesh at that place. 22The LORD God fashioned into a woman the rib which He had taken from the man, and brought her to the man. 23The man said, “This is now bone of my bones, And flesh of my flesh; She shall be called Woman, Because she was taken out of Man.” 24For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh. 25And the man and his wife were both naked and were not ashamed.

God is the one who said that it was not good for man to be alone. So when He created a helper for man He created a woman — not another man. God established monogamy as the pattern for marriage. From Genesis 1:1 1In the beginning God…. We know that the universe is not a chance happening. God is intimately involved with our existence. God putting His stamp on creation in a unique way creates man. Genesis 1:26-28 26Then God said, let Us make man in Our image, according to Our likeness; and let them rule over the fish of the sea and over the birds of the sky and over the cattle and over all the earth, and over every creeping thing that creeps on the earth. 27And God created man in His own image, in the image of God He created him; male and female He created them. 28And God blessed them, and God said to them, “Be fruitful and multiply, and fill the earth, and subdue it; and rule over the fish of the sea and over the birds of the sky and over every living thing that moves on the earth.4

Man is created to have dominion over the earth. Before family comes purpose. The purpose was that mankind would have dominion. Remember, the fall of man has not occurred, yet. Man is still in a perfect environment. Genesis 1:31 And God saw all that He had made, and behold, it was very good. When God created man, He created the capstone of His creation whose job it is to run His creation.

In Genesis 2:18 the woman comes on to the scene. 18Then the Lord God said, it is not good for man to be alone, I will make him a helper suitable for him. Woman was conceived in the mind of God not Adam’s. Please note that this is different than the creation of male and female animals. Male and female animals were all created at the same time. The first creation of man and woman occurred at different times. I believe the reason why this happened is because male and female human beings were given the responsibility of dominion. Animals were not. Whenever you delegate dominion you necessarily have hierarchy.

Genesis 2:21 21So the LORD God caused a deep sleep to fall upon the man, and he slept; then He took one of his ribs and closed up the flesh at that place. Eve is created out of Adam. So Adam is only half the man he used to be because he loses one side. In order for him to become a whole man he has to get his rib back. But his rib is now located in somebody else. He can’t take the rib out of somebody else and put it back. So in order to get his rib back he has to take hold of somebody else’s life, and make this somebody part of his life to get the rib back that he lost. But getting his rib back means he gets another half he didn’t count on, because he not only gets his rib, he gets her rib, too.

That means, gentlemen, that what marriage does is bring back what you lost, with a bonus. That is why she is different from you. And, that means, ladies, if you are going to understand your rib, you have got to understand Adam because half of your ribs belong to him. So in order for you to understand who you are, in the marriage relationship, you need to understand who he is, because half of what makes you you, is part of what makes him him. So in order for both of you to become all that both of you were meant to be, both of you have to merge into each other. If you don’t take from your mate their strengths you do not become all you were created to be.

God performs the marriage ceremony and Adam says Genesis 2:23 23This is now (he doesn’t say “she” is now) he says “This is now” meaning this new relationship, he is talking about marriage. This is now bone of my bone, flesh of my flesh, she shall be called woman because she was taken from man. Adam names her. He names her after himself. His name in Hebrew is Eish. The Hebrew word for woman is Eisha. In the first marriage, she takes his name. All Eve knows when she is created is that she is there. She doesn’t know who she fully is until she receives his name. That is why in marriage there is a transfer of names from the woman’s last name to the man’s last name, because she is now merged into another purpose.

There are at least six purposes for which God create marriage and family. The first reason for marriage is procreation: having babies. The Bible makes grand statements about having babies, the more the merrier. Why the big deal? Remember God told Adam and Eve to be fruitful and multiply so that you will have dominion over the earth, the reason was not just to have people that looked like them, it had to do with the theology of dominion. Dominion meant to reproduce yourself and spread out all over the earth, so that all over this planet there would be somebody ruling under God’s authority. Mankind cannot perpetuate itself based on homosexual marriage.

Secondly, marriage is self-realization. “Adam I will make a helpmate for you.” As long as you are single, God is your completeness. When it is time to marry, God is in the process of bringing someone along to fix up the rest of us to make us complete. The reason Adam was given a wife was to complete him. God doesn’t give you somebody just like you. For if both of you are the same, then one of you would be unnecessary. He gives someone who is different from you so that you can make up the differences, so that you can fulfill the complete purpose of God that He has ordained.

Thirdly, marriage is a divine Illustration. You are a type of Christ in the church. The Bible says that you are the bride and Christ is the bridegroom. You are to illustrate a greater reality of God to His people. So a bad marriage means a bad illustration. Ephesians 5:32 tells us that this is an illustration of the relationship of Christ. Homosexual marriage is not a reflection of divine illustration. In fact, one could make an argument that it borderlines on blasphemy.

Fourthly, marriage brings about companionship. God created marriage for companionship. Genesis 2:18 Then the Lord God said, “It is not good for the man to be alone.” There is a great blessing in sharing life with the one you love — your companion. God created Adam and Eve when He declared that it was not good for man to be alone.

Fifthly, marriage brings enjoyment. God created sex for enjoyment, in the context of marriage. I Corinthians 7:5 Stop depriving one another, except by agreement for a time, so that you may devote yourselves to prayer, and come together again so that Satan will not tempt you because of your lack of self-control. Outside of the context of heterosexual marriage there might be “pleasure for a season,” (Hebrews 11:25) but there can be no true, lasting enjoyment.

Sixthly, marriage is for protection. God desires a godly seed. Malachi 2:15 15But not one has done so who has a remnant of the Spirit. And what did that one do while he was seeking a godly offspring? Take heed then to your spirit, and let no one deal treacherously against the wife of your youth. God knows that marriage provides protection for the family.

But we now live in a lost and fallen world. And America is not exempt from this broken world. In fact, there are many reasons to believe that America, far from being an example for the nations, is now leading the nations in the wrong direction. A recent article on systemic corruption in America is an eye-opening compendium of the near complete fallenness of government, corporations, and the people.

The Book of Romans gives us a description of the end-times society when Jesus will return and God will pour out His wrath, beginning with Chapter 1. 21For even though they knew God, they did not honor Him as God, or give thanks; but they became futile in their speculations and their foolish hearts were darkened. 22Professing to be wise they became fools. I have seen men with degrees, piled on top of degrees that get up and say how you and I evolved from monkeys. Maybe they did, but I sure didn’t! Some of the greatest intellectual minds of the universe talk about how we evolved from a single cell protoplasmic blob! That is beyond the comprehension of the mind. If you saw a Boeing 747 flying across the sky, wouldn’t you assume that because it could fly, it can carry people, its seats are placed in rows, and that it can do all the things it can do; wouldn’t you assume that somebody thought it up, and somebody put it together? Certainly you would not conclude that it was the accidental product of a tornado blowing through a junkyard. Yet, the same mind can look in the sky and see a bird fly by and say, “product of chance.”

23And they exchanged the glory of the incorruptible God for an image in the form of corruptible man and of birds and four-footed animals and crawling creatures. They worshiped the creature rather than the Creator. We have the worship of the creature going on around us on a global scale. Then look what happened — here is the tragic payoff. 24Therefore God gave them over in the lust of their hearts to impurity, that their bodies might be dishonored among them. 25For they exchanged the truth of God for a lie, and worshiped and served the creature rather than the Creator, who is blessed forever, Amen. Now look what God did, because they worshiped the creature rather than the Creator, God steps back. It is as if God has parameters, or limits, as to how far evil can go. He says that evil can only go so far. But, God says if you are going to knock against those limits, and if you knock against them long enough I am going to step back. I will let you foul your own nest and if you want to live like a pagan, you can. When He steps back what happened? There was an outbreak of immorality. Does that sound familiar?

26For this reason God gave them over to degrading passions; for their women exchanged the natural function for that which is unnatural, 27and in the same way the men abandoned that natural function of the woman and burned in their desire towards one another, men committing indecent acts and receiving in their own person the due penalty of their error.5 God says if you are going to live like that I am going to step back. What happens? An outbreak of sexual immorality begins. It culminates in an outbreak of homosexuality. We are there! We have arrived!

28And just as they did not see fit to acknowledge God any longer, God gave them over to a depraved mind, to do those things which are not proper. When God steps back there is an outbreak of immorality. When we continue to push up against those limits God will step back again, and there is an outbreak of homosexuality. When we continue to push those limits, God steps back again and turns us over to a depraved mind, to do those things which are not proper. It is a time when lawlessness begins to rule and mankind does not have any standards by which they live by. Paul finishes the chapter by listing signs of depravity.

29being filled with all unrighteousness, wickedness, greed, evil; full of envy, murder, strife, deceit, malice; they are gossips, 30slanderers, haters of God, insolent, arrogant, boastful, inventors of evil, disobedient to parents, 31without understanding, untrustworthy, unloving, unmerciful; 32and although they know the ordinance of God, that those who practice such things are worthy of death, they not only do the same, but also give hearty approval to those who practice them. With all the attention given to homosexuality in the media, it is no wonder that Gallup recently found that the American public estimates that 23 percent of Americans are gay or lesbian, while the actual number Gallup finds to be 3.8 percent. And the Williams Institute finds a total of 390,000 married same-sex couples. However, regardless of the number of homosexuals in America, the definition of marriage is not decided by plebiscite. God has defined marriage as between one man and one woman. If a man and a man or a woman and a woman desire to be together, that is not marriage. Marriage has been defined from the beginning, by the One who created us male and female.

Most people know the story of Jonah: he was a prophet whom God told to go to Nineveh and preach a message of repentance. Nineveh was the capitol of Assyria which was located 550 miles Northeast of Israel. But Jonah decides he would go to Tarshish, which was 2,500 miles to the Northwest. Jonah is a renegade preacher who does not want to do what God called him to do. In his rebellion, he is tossed overboard of a ship and is swallowed by a big fish. He was there three days and three nights and was regurgitated on to dry land.

After Jonah goes on the first submarine ride in history, he agrees to do what God asked him to do. Jonah goes to Nineveh and preaches to the city, and in one day the entire city repents. Jonah 3:5-9 5Then the people of Nineveh believed in God; and they called a fast and put on sackcloth from the greatest to the least of them. 6When the word reached the king of Nineveh, he arose from his throne, laid aside his robe from him, covered himself with sackcloth and sat on the ashes. 7He issued a proclamation and it said, “In Nineveh by the decree of the king and his nobles: Do not let man, beast, herd, or flocks taste a thing. Do not let them eat or drink water. 8“But both man and beast must be covered with sackcloth; and let men call on God earnestly that each may turn from his wicked way and from the violence which is in his hands. 9“Who knows, God may turn and relent and withdraw His burning anger so that we will not perish.”

Notice this about the people of Nineveh. Conversion changed the political environment of Nineveh. It didn’t happen because they made better laws, hired more policemen, or provided more arms for the people to reduce the violence. The violence was removed because the people met a living God. The thing that changes people and brings about peace to an environment is when men repent before a living God. Nineveh still had the same King, the same Congress, the same Supreme Court, and the same city Council. The difference now was there was a heart transformation and that translated into actions and behavior. That is the only thing that will help America change. When the people of America, leaders of America, and Supreme Court Justices of America encounter the Living God who has the power to forgive, and to transform our hearts, then we will see a new America. It doesn’t matter who is in public office; it matters if their hearts are committed to the Living God.

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Dr. James Taylor, Senior Pastor at Christ’s Church of Norman in Norman, Oklahoma. https://www.ccnonline.biz. He is the author of the forthcoming book “It’s Biblical, Not Political: How to Line Candidates up Biblically.”

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Fail to Make the Morality Argument in the Case for Natural Marriage and Prepare to Lose

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Photo Credit: APWhy have the pro-natural family forces been losing in court? Intentionally or not, Judge Richard Posner explained the reason in a 7th Circuit Court ruling (Sept. 4, 2014), in which he decided against the Indiana and Wisconsin laws restricting marriage to a man and a woman:

“The state [Wisconsin] does not mention Justice Alito’s invocation [in the Windsor case] of a moral case against same-sex marriage, when he states in his dissent that ‘others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.’ [U.S. v. Windsor, 133 S.Ct. 2675, 2718 (2013).] That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said, it mounts no moral arguments against same-sex marriage.” Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014) (emphasis added).

While Justice Alito recognizes that there is a moral argument for limiting marriage to heterosexuals, it was not only the State of Wisconsin that failed to make such a case. Neither have the States of Michigan, Kentucky, Ohio, or Tennessee in Obergefell, the decisive case now before the U.S. Supreme Court. I believe that this is one of the key reasons that the pro-natural family position has been losing in most of the cases thus far.

With the moral foundation missing, an air of unreality pervades the federal court system. Let us see how unreal by looking at a couple of examples. When invalidating Oregon’s constitutional ban on same-sex marriage (May 19, 2014), U.S. District Judge Michael McShane wrote in his opinion,

“I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families. Families who we would expect our constitution to protect, if not exalt, in equal measure.” Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1147 (D. Or. 2014).

This is an extraordinary remark. What Judge McShane calls “gender and sexuality” is the only means by which families are generated. Since families come from parents, you cannot look past parents and still have a family — because there would be no family there. Homosexual acts cannot generate families; therefore, their “families” cannot be the same. If there are children present, we may be sure that both parents of the children are not present in that family. That is a lot to look past.

In Virginia, U.S. District Judge Arenda L. Wright Allen voided as unconstitutional that part of the Virginia state constitution and the Code of Virginia that define marriage as between one man and one woman. Ineptly, she began her decision on February 13, 2014, by confusing the basic texts of the American Founding (since corrected by her). She apparently thought that the phrase “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous line in the Declaration of Independence. Judge Wright Allen appealed to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples who brought suit against Virginia.

Why did Virginia have laws against unnatural marriage in the first place? One would have to conclude from Judge Wright Allen that it was motivated by sheer prejudice and that only now has the light dawned upon the court that this is unfair. In fact, like Justice Anthony Kennedy in the Windsor decision, she asserted that there was a lack of “any rational basis” in Virginia’s exclusion of same-sex couples from marriage. In fact, she inaccurately stated that, “These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Actually, they limit marriage much further than that — to exclude minors, the already married, immediate kin, and others. But why might this limitation exist in respect to same-sex couples? Judge Wright Allen never says, though she could have drawn upon several thousand years of Western and other civilizations to do so.

Here is part of what she neglected to say. In 1885, in Murphy v. Ramsey, which upheld the ban against polygamy in the Utah territory, The U.S. Supreme Court eloquently put forth the “legitimate purpose” of marriage:

“For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.”

However, Judge Wright Allen might believe that this is exactly what same-sex couples want in marriage, as well. Perhaps my favorite line from her ruling is that the “[homosexual persons] meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender.” This is like saying that the only thing that prevents ten year olds from marrying is that they are too young. Or, the only thing that prevents a giraffe from being a donkey is the fact that it is a giraffe.

Homosexuals cannot be “married” — not for reasons having anything to do with heartless conservatives or with the law, but everything to do with how human beings are made. The ultimate, inbuilt end of sex is to make “one flesh,” which is what happens in marriage between a man and a woman. Two becoming “one flesh” encompasses both the generative and unitive nature of sex. Only men and women are physically capable of becoming “one flesh.” Only a unitive act can be generative, and only a generative act can be unitive — in that only it makes two “one flesh.” That is why the unitive and procreative aspects of sex are essentially inseparable, and why they find the fulfilment only in the unique station of marriage.

For homosexual couples, the marital act is physically impossible — the pieces don’t fit — and the attempt to imitate it through sodomy is incapable in any circumstances of generating new life.

One thing that same-sex couples all share is a unique disability to express either the unitive or procreative essence of conjugal relations. For these reasons, among many others, common law has held through the centuries that marriage can be only between a man and a woman. Common law also held that if a marriage is not consummated, it could be declared to be a legal nullity. It is astonishing that Judge Wright Allen seemed to be unaware of these basic facts. In some states, entering into a marriage with the intent of never consummating it is considered marital fraud. Since same-sex marriages cannot be consummated, why aren’t they considered marital fraud?

One can expect such constitutional and moral illiteracy from the opponents of natural marriage, but what about from its defenders? For instance, in 2009, California’s Proposition 8, a constitutional amendment restricting marriage to one man and woman, was challenged in the U.S. District Court for the Northern District of California before then closeted homosexual District Judge Vaughn Walker. Since the State Attorney General and the Governor had refused to defend their State’s own constitution, other groups stepped in, hiring attorney Charles Cooper to plead their case. Here is what Cooper argued to the U.S. Supreme Court in the Hollingsworth v. Perry case as a defense of California’s Proposition 8:

“But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of – of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.”

This is risibly weak. Wait for additional information? Cooper suggested that it was a lack of knowledge concerning the outcome of unnatural marriage that led to skepticism as to its soundness, rather than the moral knowledge that such an arrangement was against the “Laws of Nature and of Nature’s God,” and therefore could not possibly be advanced as a right. Since chastity is the moral principle of marriage, how could an unchaste act — such as sodomy or any other homosexual act — be the basis of marriage? Something cannot be its opposite.

Cooper studiously avoided saying anything like this. He was at pains to portray the issue of marriage as one of states’ rights. However in doing so, he assumed a moral equivalence of traditional marriage and same sex marriage. This left him in the position of Stephen A. Douglas in the Lincoln/Douglas debates. Douglas said that the slavery issue should be left to the states to decide, as there was nothing inherently right or wrong in slavery. Popular sovereignty should reign. Cooper adopted an analogous position concerning marriage — it is a states’ rights issue. However, homosexual proponents have taken on themselves the mantle of civil rights; they claim (inappropriately) to be Lincoln in this debate. This left Cooper in a sure-to-lose position — taking, analogously, the slavery position in an antislavery fight. Does that sound too harsh? Here is Cooper’s own statement, posted on National Review Online, 5/2/14, setting out his legal strategy:

“The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges. Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned — if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.”

In other words, the lawyer hired to defend traditional marriage conceded that sodomitical marriage can be a positive good, so long as it is approved by a majority.

Later we learned why Cooper was not prepared to make the moral case for marriage. The deeper underlying reason for his incapacity surfaced in 2014, when he revealed that he actually has taken sides: “My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks.” Cooper stated that, “I told Ashley that what matters most is that I love her and she loves me.” However, as Edith Stein said, “Do not accept anything as love which lacks truth.” Love contains an obligation to the truth — especially transcendent truths regarding the ordering of our souls to the Good. Is this Good not compromised by unnatural marriage? Love seeks the well-being of the other person. An unchaste act, which is any homosexual act, harms the person on whom it is performed and the person performing it. Cooper explains that his “views evolve on issues of this kind the same way as other people’s do, and how I view this down the road may not be the way I view it now, or how I viewed it 10 years ago.” Let us be clear as to how one can “evolve” in this way: one is historicism, the other positivism — both are inimical to America’s Founding and to understanding our Constitution correctly.

Many homosexual “marriage” opponents seem to suffer a sense of moral illegitimacy — and this includes many Republicans. They have the right instinct, but do not know how to express their view. When they are put on the spot to defend their position, they really have no way to explain it. Since they do not want to be embarrassed, they simply shut up or retreat. Most of these people have no background in moral philosophy or ethics. They are products of our modern educational system which denudes the mind of any notion of natural law, which is the fundamental point from which unnatural “marriage” should be opposed, and replaces it with moral and cultural relativism.

The reason for the kind of backpedaling exhibited in Indiana, whose Governor Michael Pence could not adequately support the religious freedom protection law he had signed, is that so many refuse to recognize what this conflict is really about. The retreat to the position of defending religious freedom means that the issue of the immorality of sodomy and other homosexual acts has been abandoned – both in and out of court. That is a terrible substantive and strategic error. Giving up on the moral issue basically gives the whole issue away — because if sodomy is not wrong, then not allowing it to serve as the basis of marriage must be bigotry. One must forthrightly say and show that sodomitical behavior is against the “Laws of Nature and of Nature’s God” and that, therefore, it cannot be advanced as a right. If sodomy is wrong, then it cannot be the basis of marriage.

Alas, one will not be able to find any such moral principles set out in the parties’ briefs filed in the marriage case to be decided by the U.S. Supreme Court later this month. For example, the State of Michigan’s brief states that: “This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy…” Yes, it is partly about how things are decided, but it is also about what is being decided. It is not simply a procedural issue; it is also a substantive one.

After giving a thoroughly inadequate description of what marriage is, the Michigan brief gives the characterization of the same-sex view “that marriage is primarily about commitment, with gender and biological procreation taking less prominent roles. From this perspective, marriage is a commitment that grounds couples and provides familial stability.” What, I wonder, is the purpose of participating in your opponent’s denial of reality? Do grapes in the process of winemaking take a “less prominent role” in a winemaking process that uses no grapes? One of those processes produces wine; the other one does not. Is a non-grape simply a “less prominent” grape? Is an empty glass the same as a full one? Then this asinine observation is added: “Importantly, neither view stigmatizes the other; they are simply different conceptions of what the marriage institution should be.” Well, yes, they are different, in fact, contradictory. If there is something the marriage institution “should” be, shouldn’t a conception of marriage antithetical to it be stigmatized?

Next we learn from the Michigan brief that voters should be able to decide such issues “on decent and rational grounds.” After giving away those “rational grounds” in the brief’s introduction, it is not surprising that the petitioners nowhere present those grounds. Instead we hear that, “The difference in these views is not that one side promotes equality, justice, and tolerance while the other endorses inequality, injustice, and intolerance.” Well, then, what is the difference? Are right and wrong simply two different views of morality, neither of which is false? This is the path to insanity, and to another loss in court. Natural marriage and unnatural “marriage” are not two kinds of marriage: one is marriage, and the other is not. If you’re not willing to say at least this much, why bother saying anything? Michigan is tying the noose around its own neck, but at least it is consistent, with Judge Posner’s words, in giving “no moral arguments against same-sex marriage.”

That is not to say that the moral arguments have not been made to the Court – but that job fell to the amici curiae. The moral and Biblical cases against same-sex marriage were made by Foundation for Moral Law, and Public Advocate, U.S. Justice Foundation, and certain other amici.

Kentucky’s brief seeks to “urge this Court to resolve the issues creating the legal chaos that has resulted since Windsor.” Unfortunately, what the Court is going to do in the way of resolution is pretty much a foregone conclusion. The question will soon arise: what, then, are we going to do?

The homosexual movement will not succeed in the long run. Dream worlds do not last. They invariably turn into nightmares from which people eventually wake themselves. How long that takes and how much damage it incurs in the meantime will depend partly on us.

Reflecting on his experiences in Nazi Germany where he had been imprisoned, Heinrich Rommen wrote: “When one of the relativist theories is made the basis of a totalitarian state, man is stirred to free himself from the pessimistic resignation that characterizes these relativist theories and to return to his principles.” We have the means at hand to return to this country’s first principles: they are called “the Laws of Nature and of Nature’s God.” We need them now as much as did our Founders. Let us return to them forthwith — before it is too late.

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Robert R. Reilly is the author of Making Gay Okay: How Rationalizing Homosexual Behavior Is Changing Everything. He served as a Special Assistant to President Ronald Reagan and was the Director of the Voice of America.

This article is part of a series on “Building Resistance to Same-Sex Marriage.” Should you want to help support this important work, contributions may be made to the U.S. Justice Foundation.

Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.

Cruz, Lee Move to Defend Marriage and Religious Liberty [+video]

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There is a deep sense of urgency among the GOP elite in Washington to implement “an Obamacare fix” and place the Republican stamp of approval on subsidies in the event that the Supreme Court invalidates them in King v. Burwell. Unfortunately, but not surprisingly, there is no such urgency to implement a religious liberty fix in the event that the Court mandates a new civil right for homosexual couples.

However, if nothing is done to block the impeding onslaught of discrimination against private institutions that believe in marriage, their status will be in just as much jeopardy from Obergefell v. Hodges as the Obamacare subsidies are from King v. Burwell.

As I noted before the oral arguments in the marriage case, there is no constitutional right or rationale basis to support a decision forcing states to recognize same-sex relationships as marriages more than any other relationship. The only way the court can arrive at such a decision is by creating special rights for same-sex relationships on par with civil rights that were granted to African Americans in the ‘60s. This will necessarily preclude everyone, including religious institutions, from upholding their beliefs about marriage on their private property.

This point was illustrated by an appalling yet predictable admission from Solicitor General Donald Verrilli in response to a line of questioning by Chief Justice John Roberts and Justice Sam Alito during oral arguments in April. Roberts asked Verrilli if a religious school that has on-campus housing for married couples would be required to afford such housing to same-sex couples, given that the pro-gay marriage side wants the Court to invent a fundamental constitutional right. Verrilli refused to give a straight answer. Then when Alito followed up and asked him if private schools that oppose gay marriage would lose their tax-exempt status, he admitted, “it’s certainly going to be an issue. I don’t deny that.”

Obviously, there is no need to parse out Verrilli’s statement in order to understand that the Rainbow Jihad movement will not stop when they secure universal marriage licenses. Over the past few years, it has become clear that they will not stop until every citizen and private institution is forced to accommodate their lifestyle.

In comes Sen. Mike Lee (R-UT) with a bill to protect religious institutions from any discrimination or reprisal from the federal government in the event that a new constitutional right is invented. In the coming days, he plans to reintroduce his Marriage and Religious Liberty Act from last year with some additions. In addition to protecting religious institutions from “adverse action,” this bill prevents the federal government from denying tax-exempt status to charitable groups, invalidating employee benefit plans that fail to accommodate same-sex relationships, or discriminate against them in any contractual relationship with the government.

Sen. Ted Cruz (R-TX) has already introduced legislation to mitigate the damage of an impending ‘Roe v Wade-style’ ruling in the marriage case. The Protect Marriage from the Courts Act of 2015 would freeze any action implementing the court’s decision by stripping the federal courts from any jurisdiction over marriage. It also invokes Congress’ power to make exceptions to the appellate jurisdiction of the Supreme Court by making it clear that the judgment only applies to the parties in the current case and cannot be applied to other cases. This will allow states like Alabama to invoke their plenary power over marriage and withhold licenses for same-sex couples – without the federal courts attempting to use this case as precedent for invalidating further state actions.

In the event that the Supreme Court strikes down marriage as an institution in the coming weeks, there will be a stampede for the doors in Republican circles to wash their hands of defending marriage and religious liberty once and for all. Cruz and Lee are making it clear that the fight is just beginning. Where is Sen. Mitch McConnell? Will he join with them to bring these bills to the floor instead of focusing on growing government or rubber stamping Obama’s agenda? Will all the presidential candidates promise to continue the fight even after the Supreme Court’s decision and sign these bills into law?

This nation was originally founded as a haven for religious liberty. It was not founded for the purpose of universal health care subsidies. Shouldn’t Republicans exhibit the same zeal to protect marriage and religious liberty from the courts as they plan to do with Obamacare subsidies? (See “Cruz, Lee Move to Defend Marriage and Religious Liberty”, originally posted HERE)

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Revolution by Judicial Fiat

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While a common view is that social conservatives have “lost” the culture war, little other result was possible due to the power of the U.S. Supreme Court. This point was made clear at a presentation at the Family Research Council on May 8, which reviewed the judicial decisions issued, political moves made, and ideological positions taken in the mid-twentieth century that led to the current collapse of marriage, morality, and the family.

William Duncan , Director of the Marriage Law Foundation (with a mission of re-affirming traditional definition of marriage as union of one man and one woman), offered one of three presentations, his focusing on the Supreme Court’s decisions which preceded its decisions on homosexuality in the 1990s and 2000s.

Duncan began by noting common judicial opinion about marriage and the family before the sexual revolution, citing a 1952 decision from the California Supreme Court in which marriage was held to be “a great deal more than a contract, ‘the family is the basic unit of our society, the center of personal affections … it channels biological drives that might otherwise become destructive, it insures the care and education of children in a stable environment, it established continuity from one generation to another.’” Although it would be the 1970s before there was a radical departure from this understanding, the 1960s saw the decisive shift that made everything that came after it possible.

Language such as that of the 1952 California decision dropped out of usage at the U.S. Supreme Court, and a new understanding of marriage and the family was foreshadowed in the 1965 Griswold vs. Connecticut decision. This decision, the result of a lawsuit by Planned Parenthood, declared a Connecticut law prohibiting artificial contraception to be unconstitutional. This was found to violate a “right of privacy” which was held to exist in a marital relationship. Although speaking favorably of marriage, Duncan noted that the Griswold decision backed away from the concept of marriage as a permanent union of man and woman, and referring to it as an “association” which would “hopefully” endure. Earlier court decisions would have referred to marriage as a “union” or an “institution,” Duncan said. In addition to downgrading the understanding of marriage from a vital union which forms “the basic unit of society,” and concerned with children, the Griswold decision strengthened the right of sexual choice, saying that the choice of a married couple to use contraception is protected by the intimate nature of marriage, and is grounded in a law “older than the Bill of Rights” (and thus presumably older than the Constitution), although it was buttressed with broad statements held to point to a right to privacy drawn from the First, Fourth, Fifth, and Ninth Amendments to the Constitution. The right of privacy was thus made a constitutional doctrine, and violation of it a violation of the person, although at this point, this powerful new constitutional doctrine was kept within the marriage relationship, indeed, it was in some measure justified by being a right that pertained to marriage.

The truly radical departure from the traditional understanding of marriage and morality occurred in 1972, Duncan observed, in the Eisenstadt vs. Baird decision. This decision extended the constitutional “right of privacy,” which gave a right to use contraception, to cases of non-marital intercourse. This was done by declaring the “right of privacy” to be an individual right, not one that could be restricted to marriage. And to do that, the court deconstructed the traditional idea of marriage. The court denied that a marriage was an “independent entity, with a mind and heart of its own,” but remains the association of two individuals, a radical departure from the traditional Christian doctrine, derived from the words of Jesus, that two persons become one in the union of marriage (Matt. 19:4-6; Mk. 10:6-9). To state the obvious, giving any sort of rights or dignity or respect to non-marital intercourse, which in Christian and other traditional morality is regarded as among the gravest of sins, was a truly radical departure from the past. The decision did not directly invalidate laws against fornication or adultery, however, but the right to contraception becomes a right fundamental to personhood whether a person is married or not. Thus, Duncan claimed, the Eisenstadt decision reduced marriage and the family to “a mere lifestyle choice.” The right of sexual choice that the Eisenstadt decision introduced is “an individual right, not the right of an entity of two people who have joined together in a binding union.”

The Supreme Court’s subsequent decisions pertaining to sexual relations were shocking to a large part of the American public, but “the logic relentlessly follows from” this radical departure from the traditional understanding of marriage and morality, according to Duncan. Some of the most radical decisions of great import today quickly followed. The Roe vs. Wade and Doe vs. Bolton decisions (both issued in 1973), which established a constitutional right to abortion were based on the (now individual) right to privacy, a right to choice in child bearing the state was held to infringe upon by prohibiting abortion. In the Department of Agriculture vs. Moreno case, (also issued in 1973), the court voided a Congressional provision restricting food stamps to only those families composed of members related to one another. Nontraditional (“hippie”) families were excluded. The court did not challenge the use of families, rather than individuals, as the recipients of food stamps, but found unconstitutional the restriction of food stamps to natural families. Although use of the natural family as a criterion to receive food stamps would be very reasonable in a pre-1960s environment, both to prevent fraud and to reinforce the ideal of the natural family, the court held the law resulted from “a bare desire to harm” persons living in these non-traditional relationships. With traditional marriage and the family no longer an ideal in law due to the Eisenstadt decision, it was held that only unwarranted hostility could explain Congressional intent. This decision was crucial to decisions in recent years finding laws resisting the advance of homosexuality to be based on “impermissible animus.” Other decisions found laws requiring spousal consent to abortion to be unconstitutional, and laws which tend to inhibit access to contraceptives (including abortion) to be unconstitutional. This, Duncan said, shifted the right to abortion from a “negative right” (not to be restrained from aborting a child) to a positive right (to have access to abortion guaranteed).

The concept of marriage as nothing more than a personal expression of autonomous individuals reached an apogee in the Planned Parenthood vs. Casey decision (1992), which sustained the earlier Roe vs. Wade decision, and which infamously declared that the liberty guaranteed by the Constitution involves the right to define one’s own reality and existence. A completely unworkable principle as regards life in general, it is used by the court to protect the individual from the consequences of his or her sexual choices. Marriage becomes simply a choice of “two autonomous individuals” to engage in a joint project of “self expression and self creation.” Today’s “contraceptive mandate,” imposed by the Health and Human Services Administration as part of the implementation of the Affordable Care Act (Obamacare), which requires employers to pay for contraceptives and abortion inducing drugs regardless of their conscience convictions, follows the earlier issued court decisions aimed at protecting individuals from the consequences their sexual choices, Duncan noted.

It might be added to Duncan’s comments that this understanding of sexual choice as a “positive right” highlights the most disturbing aspect of the post-1960s marriage and morality jurisprudence, namely that is animated by a moral spirit which is not merely non-Christian, but really anti-Christian. By reasonably claiming that what violates marriage violates the person, and then dubiously claiming that the choice of contraception is obviously derived from that, the court made denial and punishment of sexual choice to be immoral and oppressive, an attack on the person. By extending this right outside of marriage as an individual right, a wholesale attack on Christian sexual morality was possible, since in Biblical morality, all sexual activity outside of marriage is shameful and due punishment. The court’s later (1990s and beyond) abortion and homosexuality decisions especially are notable for their tone of scolding the American public; the Casey decision implying that the public is lawless if it doesn’t accept court prescribed morality, the Romer, Lawrence and Windsor cases pertaining to homosexuality attacking the public for “irrational hate” and impermissibly enshrining Judeo-Christian morality in law. But holding sexual choice to be a matter above public decision making is a natural result of holding that any restriction on this choice is a personal attack, forbidden by a law “older than the Bill of Rights.”

Through these decisions, the Supreme Court has made itself “the ultimate arbiter of what marriage and family means, and what policies the states are allowed to pursue, and the federal government as well.” Duncan held that the true principle the Supreme Court has followed in its sex, marriage, and family decisions since the 1960s is the principle annunciated by Vladimir Lenin: “the success of the revolution is the supreme law.”

While Christians and social conservatives may lament national apostasy from God and His revelation, we need to remember that the result of the sexual revolution is only partly, and not decisively, the result of changing public beliefs and practices. The reason the sexual revolution prevailed is that it was imposed on the nation by the Supreme Court, and the inability of social conservatives over a number of years to decisively change the composition of the court. But however the sexual revolutionaries prevailed, and they did so undemocratically, it cannot change the truth of God’s revelation. For the non-religious or nominally religious, the success of the sexual revolution may be welcomed or regretted, but in any case accepted as final. But what Christians have always been involved in is not a mere political struggle, or even a cultural struggle. In those cases, there comes a time to accept defeat. Our non-negotiable commitment is to obey God, and so what we are engaged in is a religious struggle, which can therefore never be abandoned. The imposition of a sexual ethic hostile to the Biblical revelation gives believers the possibility of displaying the truth about marriage, sexuality, and the family as, Duncan concluded, “a pearl against a black background.” (See “Revolution by Judicial Fiat”, originally posted HERE)

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Anarchy, Tyranny and the 2016 Election [+video]

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Like most of you, I haven’t settled on a presidential candidate. I’d like to say that each of the Republican contenders has something to recommend him. But then I’d remember four of the most terrifying words in the English language: “George Pataki” and “Lindsey Graham,” and I’d have to go splash some cold water on my face and mutter a prayer.

Nobody’s perfect. The only candidates who check off each box on my list of “non-negotiable” issues (abortion, marriage, religious liberty, and immigration control) carry other attributes that render them less appealing, such as “laughably unelectable” or “only running to land a book deal and a talk show.”

In an ideal world, we’d be permitted to take the most valuable stance from each contender, and assimilate them all into a single, flawless entity whom we could follow. Like the Borg. But neither the Borg nor Cthulhu has announced this year, so we must go with some lesser evil.

Welcome to life. The desires, delusions and legitimate idiosyncrasies of other sovereign human beings are constant barriers to our grabbing everything we want and hoarding it in our basement, or putting our neighbors into drab matching uniforms and forcing them to do patriotic gymnastics. We must learn to tolerate other people’s “absurd” beliefs and “disgusting” choices in return for their putting up with ours. We rely on good manners and common decency most of the time to blunt the clashes among us, and only when those civil habits fail us must we turn to the cops and the lawyers, and the threat of fines and prison.

Our country’s founders called such an arrangement “ordered liberty.” Think of it as the golden mean, or the sweet spot somewhere between “Somali warlords fighting over who gets to steal your farm” and “North Korean soldiers staring coldly at you through the barbed wire.”

But for Americans in 2015, neither total anarchy nor absolute tyranny are the real dangers. The real danger is rather a creative amalgam of both, in which the government doesn’t do the short list of things that it’s supposed to, but steps right up and takes over a long list of tasks it has no business trying. A nation ruled by such a hybrid system would:

Leave its borders porous to human traffickers, but keep troops in dozens of other countries, guaranteeing their security.

Use the state to grind down the basic institutions of civil society on which its own democracy was built, while pouring money into civil society initiatives in foreign autocracies to try to build up democracy there.

Try to restrict political speech aimed at influencing elections and legislation, but allow all kinds of pornography to wash over its young people.

Permit and even fund the termination of innocent children, but refuse to execute murderers and terrorists.

Meddle in the child-rearing choices of well-ordered married couples, but lavishly subsidize teenagers who got pregnant.

Admit thousands of refugees who belonged to a religion incompatible with its constitution and culture, while rejecting those with the tolerant faith of its founding.

Accept thousands of immigrants holding that intolerant faith, which teaches them the duty of religious war, then deal with the imported threat by spying on the private conversations and correspondence of all its citizens.

Help to overthrow foreign regimes that repress that hostile religion, and put into power extremist movements that wish to impose it everywhere by force.

Batter and recklessly redefine the most basic institution of society, marriage, and make the legal covenant on which it’s based completely unenforceable through no-fault divorce — while luring millions of young people, as the price of getting educated, into inescapable, sacred commitments of crippling debt to the government.

Does any of that sound familiar?

It would take a radical candidate, one who saw back to the roots (radix) of the American system, to cut through the sick tangle of sentimental bad ideas and counterproductive policies that have made our government a dangerous parasite upon the country. Just a few days ago, here at The Stream, Jason Jones called for a leader with exactly such a vision, and laid out some criteria we could use to recognize him if he steps forward.

Such a candidate won’t be “perfect.” His priorities might be confused. But if he sees clearly that progressive ideology has made our government itself America’s most intractable, ruinous problem, he will be solidly on the right track. Then it’s our job to educate him and keep him honest. We will do that through old-fashioned politics, putting pressure even on our friends when they are tempted to sell out our interests. Every one of our nation’s founders considered the growth of our own government more dangerous because more likely than an invasion by foreign powers. It is time to admit that they were right. (See “Anarchy, Tyranny and the 2016 Election”, originally posted HERE)

[Listen to this recent interview with the article’s author]

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