Federalism Can Still Save Religious Liberty

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We live in a post-Christian America, broods the insightful “natural pessimist” on morality and religion, Rod Dreher, writing two long pieces on his The American Conservative blog that feature theologian Peter Leithart coming to this dramatic conclusion about government and Christianity in America today:

We’ve fooled ourselves for decades into believing that Christian America was derailed recently and by a small elite. It’s tough medicine to realize that principles inimical to traditional Christian morals are now deeply embedded in our laws, institutions and culture. The only America that actually exists is one in which “marriage” includes same-sex couples and women have a Constitutional right to kill their babies. To be faithful, Christian witness must be witness against America.

Specifically, Leithart had predicted beforehand that “Tax exemption will be challenged, and so will accreditation for Christian colleges and schools that hold to traditional views of marriage. Once opposition to same-sex marriage is judged discriminatory, no institution that opposes it will be unaffected.” He justified his pessimism by Supreme Court Justice Antonin Scalia’s dissent in Windsor:

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Dreher concluded with an even darker insight, from Catholic Cardinal Francis George:

I am (correctly) quoted as saying that I expected to die in bed, my successor will die in prison and his successor will die a martyr in the public square. What is omitted from the reports is a final phrase I added about the bishop who follows a possibly martyred bishop: “His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the church has done so often in human history.”

Dreher bases his grim view from the passion on the matter exercised by the other side of the debate. He recalled that Maggie Gallagher had reported on a 2006 Becket Fund conference about the now EEOC Commissioner Chai Feldblum, who, raised as an Orthodox Jew, was open enough to attend the symposium with the goal of showing gay respect for religion. Yet, it turned out to be a limited type of respect.

To Feldblum the emerging conflicts between free exercise of religion and sexual liberty are real: “When we pass a law that says you may not discriminate on the basis of sexual orientation, we are burdening those who have an alternative moral assessment of gay men and lesbians.” Most of the time, the need to protect the dignity of gay people will justify burdening religious belief, she argues. But that does not make it right to pretend these burdens do not exist in the first place, or that the religious people the law is burdening don’t matter.

Feldblum believes this sincerely and with passion, and clearly (as she reminds me) against the vast majority of opinion of her own community. And yet when push comes to shove, when religious liberty and sexual liberty conflict, she admits, “I’m having a hard time coming up with any case in which religious liberty should win.”

And it appears that public opinion is now on the side of the gay community. Case closed.

Is America really on the verge of a civil war in which Christians replay the early persecutions? Actually, the most recent Pew survey finds only a plurality of 49 percent in the U.S. support gay marriage, but also that 51 percent still think such marriages are sinful. Gays may have won the marriage law, but they still lack the legitimacy they demand. The public is split down the middle on whether caterers and florists who have religious objections should be able to refuse services to gays. As far as political elites, region and urbanization play big roles. California has required churches to purchase insurance that includes abortions. Oregon required bakers to supply gay marriage ceremonies. Washington state sued to require a florist to garnish for a gay marriage. Catholic dioceses in Washington D.C. and Boston have left adoption services because they were forced to refer children to gay couples against church policy. The city of Coeur d’Alene, Idaho, demanded that married, ordained Christian ministers running a wedding chapel marry gays. The New England Association of Schools and Colleges threatened to revoke their accreditation of Massachusetts’ evangelical Gordon College if it did not change its policy on homosexuals.

This division reflects that of U.S. politics and culture generally: left and right coasts verses middle America, blue verses red states, sophisticates verses rednecks, religious against secularists, conservatives against liberals. The difference is that power has shifted radically left through the Ivy League elite-dominated Supreme and lower federal courts. But does this mean civil strife? Leithart recommends that discriminated-against Christians witness peacefully even at the cost of reputation, economic opportunity, and income or even more serious repression. James Davidson Hunter has long recommended shunning politics and especially national policy and going local to reconnect with Jesus and community. Are the catacombs, then, the only remedy for traditionalists determined to follow their faith as courts take decision-making from local control?

Fortunately, federalism is not that brittle. While granting national appeal courts a strong hand against the states on gay marriage, the most recent Supreme Court decision actually turned the matter back to the states for administrative disposition. National courts have limited ability to write their own marriage laws; and even with their oversight, there is much room for state action to limit the damage as traditionalists await future changes in the complexion of federal courts and law-making.

Before the Supreme Court ruled, 24 states more-or-less voluntarily adopted or accepted same sex marriage. That means that remedies are potentially available in the other 26 states to consider legislative remedies to preserve, in some manner or another, marriage between one man and one woman as a unique relationship. The fact that Republicans now control two-thirds of state legislative bodies makes this possible. At least some gay marriage supporters—for example, law professor James G. Dwyer–recognize there is a sufficient state interest to pass federal judicial rational-basis review in treating traditional marriage distinctively based upon the unique biological composition of such unions in producing children–and perhaps even because children may benefit more under such relationships.

State regulation of marriage itself could remain minimal as at present, being basically a contract between the couple being married. Only with children and the possibility of their abuse, or in separation or divorce, is state regulation of marriage per se common. Marriage could even be a purely private or religious contract without government controls other than offering an alternative state contract for those who might prefer one and for all of them being enforceable in state courts. Divorce and separation options could be specified in the original contract, perhaps with limited additional state oversight. When children are involved, the law could distinguish between different child situations: most sections of traditional state child protection law could be re-organized under the title of biological family law–and new titles added for adoption and artificial insemination for other child custody originations, which clearly present different issues. Rational differences could be deduced and the state interest in each identified, including any empirical benefits to children under different relationships.

Significant privatization is essential for marriage and social policy generally if force and severe civil conflict are to be avoided. Justice Anthony Kennedy’s main concern was to provide equal material benefits to homosexuals as granted to heterosexual couples under Federal laws. That can easily be achieved by granting all welfare benefits to individuals, to children through whoever has legal custody. As far as anti-discrimination laws, these were adopted as an extreme means to combat the extreme evils of slavery and legal segregation. Over time, new aggrieved groups demanded equal remedy for less cause. Applying such laws to sexual preferences and religious disagreements on morality would be momentous. The European religious wars of the past are not appealing futures, and make no mistake: a secular demand for moral equality is a religious claim under a different label. One need only look to the Middle East to see what we should want to avoid. Any real reform of marriage must take place freely in what future pope Joseph Ratzinger then called an attitude of “non-conformity” toward the dictates of current fashion.

Conditions change. Christian marriage did not even require clerical witnesses for its first millennium. The state did not control marriage in Britain until 1754 or in France until the Revolution, before America broke free of both. Catholic marriages were not recognized in the United Kingdom until 1836. Meanwhile, American federalism provided the means for cooling things off. It managed tensions well enough to take extremely diverse colonies, from Puritan New England, to Anglican Virginia, to Quaker Pennsylvania, to Catholic Maryland, to mixes of these and others throughout the colonies and early states finally developing into a nation by allowing each to develop independently and freely. It failed in 1860 with a civil war but slowly arose again to a reasonably peaceful, just, and prosperous America in modern times.

The U.S. is divided once again by strong views on social policy; and wisdom suggests the solution once again is regional diversity, federalism, and a live-and-let-live culture. Without them, Dreher, Leithart, and George might just be proven prophetic.

 

This commentary originally appeared at The American Conservative.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Conflict Between The Circuits: Gay Marriage Back On The Supreme Court’s Table

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A month ago, the U.S. Supreme Court refused to hear a collection of cases that raised the question of traditional marriage vs. same-sex unions. Now, a Sixth Circuit Court of Appeals decision may have changed all of that. By voting 2-1 to uphold same-sex marriage bans in four states under the appellate jurisdiction of the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee—the panel has now created a conflict between the circuits. This conflict exists because four other federal circuit courts had found bans on same-sex unions to be unconstitutional. We know now, at least according to statements from Justice Ruth Bader Ginsburg, that a lack of a conflict between the circuits was the reason the Supreme Court balked at hearing the earlier cases from five other states.

The Sixth Circuit majority opinion in DeBoer v. Snyder, written by Judge Jeffrey Sutton, is worth reading because it carefully discusses the major points of disagreement. The key question is whether “the 14th Amendment prohibits a State from defining marriage as a relationship between one man and one woman.” Judge Sutton zeroes in on the essential issue:  “Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic process?” The majority answer is quite clear. Today’s marriage laws should be allowed “to stand until the democratic processes say they should stand no more.”

Sutton’s opinion uses a “rational basis” review in assessing the marriage laws of Michigan, Ohio, Kentucky, and Tennessee. This is a common approach followed by courts to evaluate if state laws pass constitutional muster. Basically, the court must determine if there are good reasons for a state to protect traditional marriage. Does the law “rationally advance a legitimate government policy?” Yes, clearly, says the opinion. The states in question established “ground rules” needed to create “stable family units for the planned and unplanned creation of children.”  The court continues, saying that “one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.”

The court acknowledges that in this day and age, that is not the only way some view marriage. Yet, the fact that there are other more expansive or inclusive views of marriage does not dictate that states “suddenly must look at this policy issue in just one way on pain of violating the Constitution.” Sutton later writes that “[o]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.” Sutton writes that the States are wise to exercise a “Burkean sense of caution” when it comes to redefining such a fundamental and long-standing institution as marriage–and that, ultimately, such decisions are better left to “elected legislators, not life-tenured judges.”

In DeBoer v. Snyder the court addresses the claim, sometimes raised by supporters of same-sex unions, that the resulting state laws or constitutional initiatives succeed because of “animus” against homosexuals; and those motivations make the resulting bans on gay unions constitutionally suspect. Judge Sutton reminds readers that assessing the motivations of millions of citizens who voted for gay marriage bans in Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million) “strains judicial competence.” Some favored the ban for some reasons, others for other reasons; but the courts are ill-suited to delve into the complicated “aggregation of factors” that motivates voters.

It is likely that the Supreme Court will abide by its own rules and accept one or more of the traditional marriage/same-sex union cases for review. Then the question becomes whether there will be five justices who: 1) graciously defer to democratically determined outcomes on this issue; 2.) respect American federalism, which recognizes that states retain the power to act in this highly-charged area; and 3) will be reluctant to judicially remake two of the central institutions of organized society: marriage and family.

Editor’s Note:  The Chief Judge of the Sixth Circuit, the Honorable Alice Batchelder, is a trustee of Grove City College.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Hollow Justice And Courts Of Order In An Age Of Government-Sanctioned Tyranny

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“The Constitution is not neutral. It was designed to take the government off the backs of the people.”—Justice William O. Douglas

Justice in America makes less sense with each passing day.

A Michigan couple that has been raising chickens in their backyard as a source of healthy food for their family could get up to 90 days in jail for violating a local ban on backyard hens. A Kentucky prison guard who was charged with 25 counts of sexual abuse against female inmates, trafficking controlled substances, and 50 counts of official misconduct walks away with no jail time and seven years’ probation. A 53-year-old Virginia man is facing 20 years in jail for kidnapping, despite the fact that key evidence shows him to be innocent and his accuser a liar; yet the courts claim they’re unable to do anything about it. Meanwhile, thanks to the U.S. Supreme Court’s recent refusal to hear the case of Jones v. U.S., judges can now punish individuals for crimes of which they may never have been convicted or even charged.

With every ruling handed down, it becomes more apparent that we live in an age of hollow justice, with government courts, largely lacking in vision and scope, rendering narrow rulings focused on the letter of the law. This is true at all levels of the judiciary, but especially so in the highest court of the land, the U.S. Supreme Court, which is seemingly more concerned with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.

Given the turbulence of our age, with its police overreach, military training drills on American soil, domestic surveillance, SWAT team raids, asset forfeiture, wrongful convictions, and corporate corruption, the need for a guardian of the people’s rights has never been greater.

Yet when presented with an opportunity to weigh in on these issues, what does our current Supreme Court usually do? It ducks. Prevaricates. Remains silent. Speaks to the narrowest possible concern. More often than not, it gives the government and its corporate sponsors the benefit of the doubt. Rarely do the concerns of the populace prevail.

In this way, preoccupied with their personal politics; cocooned in a priggish world of privilege; partial to those with power, money, and influence; and narrowly focused on a shrinking docket (the court accepts on average 80 cases out of 8,000 each year), the justices of the current Supreme Court rarely venture beyond their rarefied comfort zones.

Every so often, the justices toss a bone to those who fear they have abdicated their allegiance to the Constitution. In Riley v. California, for instance, a unanimous Court ruled that police need warrants in order to physically search the cellphones of people they arrest. Even in that instance, the victory rang hollow to those who understand that government agents, equipped with military-grade surveillance equipment, don’t need physical access to our phones in order to know who we’ve been talking to or texting and what we’ve been saying.

Too often, however, as I document in A Government of Wolves: The Emerging American Police State, the Supreme Court tends to march in lockstep with the police state.

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This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

What The ‘Gay Marriage’ Debate Is Really About

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It’s called Pandora’s Box.

And the Supreme Court just opened it.

Did you actually think the debate over “gay marriage” was about marriage? Have you really come to believe that this cultural kerfuffle has anything to do with “civil rights” or “equality”? Have you bought into the popular premise that this is a legitimate discussion on federalism – that it’s a reasonable disagreement over whether the U.S. Constitution’s equal protection clause requires that newfangled “gay marriage,” something rooted in same-sex sodomy, a deviant and disease-prone behavior our Constitution’s framers officially declared “the infamous crime against nature,” be made law of the land?

A lot of people have, so don’t feel bad. A lot of reasonable, well-meaning, and even, at times, intelligent people have taken the bait.

But that’s all window dressing. It’s superficial. It’s collateral. It’s chaff, a diversion, a squirrel. Don’t chase it.

At its core, this increasingly heated fight over “gay marriage” is about two diametrically opposed and profoundly incompatible views of reality (or lack thereof). It’s the modern manifestation of a millennia-old clash between worldviews. This ugly cultural conflict is, in reality, neither legal nor political in nature, but, rather, is fundamentally a philosophical debate. Ultimately, it derives from, and is illustrative of, deep-seated spiritual warfare. Quite simply, the clash over “gay marriage” is emblematic of the larger, and much older, clash between good and evil.

And it’s reaching critical mass.

On the one hand, on the natural marriage side, we have a worldview that recognizes absolute truth – that acknowledges the fixed moral and natural law, authored and enforced from time immemorial by the sovereign and loving Creator of the universe. This same Creator, incidentally, just happened to design and define the very institution over which we quarrel. Those with this worldview concede that every man, woman, and child is accountable to this sovereign Creator and will, one day, stand before Him to face final judgment for what they did or did not do during their infinitesimally short-lived stint here on earth.

This, though not a comprehensive representation, is the biblical worldview.

On the other hand, on the unnatural marriage side (or the “marriage equality” side as these self-styled “progressives” euphemistically prefer), we have a worldview that denies absolute truth. It imagines there are no fixed lines of demarcation between right and wrong – that morality and reality is entirely relative and, therefore, the very notions of good and evil, right and wrong, and sin and repentance are but false and limiting constructs concocted in the narrow minds of a dull bevy of sheepherders some thousands of years ago.

Since those with this worldview either deny God’s very existence altogether or, alternatively, believe that some version of god, like marriage, can be defined, or redefined, in the mind of the beholder, they claim accountability to no one (except goddess political correctness) and, thus, declare reality to be that which they, the secular-”progressive” intelligentsia, proclaim it to be (e.g., that manmade, credulity-straining, reality-warping, and oxymoronic counterfeit called “same-sex marriage”).

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This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Oligarchy In America-Tyranny Of The Federal Judiciary

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Two key decisions rendered by the Federal Judiciary this week severely challenge not only the foundational institutions of our society, but the fundamental operation of our republic.

The U.S. Supreme Court announced this week that it opted to not hear appeals by five states regarding their traditional marriage laws. Utah, Virginia, Indiana, Wisconsin, and Oklahoma all had laws on the books defining marriage as a contractual institution including a man and a woman that had been appealed to the Supreme Court from lower courts. The net effect is that judicial decisions at lower levels against those state laws will now stand, opening the way for same-sex marriages in those states.

The Supreme Court’s rationale to not hear the cases may well have been portended by Justice Antonin Scalia last month in Bozeman, MT, when he said, “It’s not up to the courts to invent new minorities that get special protections that are not subject to the usual rule that you have to get the majority to agree with it.”

Even more disconcerting is the decision by three judges from the 9th Circuit Court of Appeals regarding Idaho and Nevada’s laws supporting traditional marriage. A three-judge panel from the 9th Circuit, consisting of Judges Stephen Reinhardt, a Carter appointee from Los Angeles, Ronald M Gould, a Clinton appointee from Seattle, and Marsha S. Berzon, a Clinton appointee from San Francisco, struck down state laws reaffirming marriage between a man and a woman. Since the Supreme Court will not hear states’ appeals on the issue, same-sex marriage is a fait accompli, not only for Idaho and Nevada, but inevitably in all 50 states.

Our federal judiciary has become, arguably and disturbingly, an oligarchy. When they rule on the “constitutionality” of an issue, it is assumed to be the final say in whether a vote of Congress or the vote of the people via referendum or initiative is legitimized or annulled. This is not how the Supreme Court and its substrata of appellate courts were intended to operate, nor is it de facto the way it should be.

The federal judiciary, as it has evolved, has unchecked and unlimited power over the nation by either of the other branches–the executive or the legislative–or even the people. Its members are not accountable to the citizenry, since most of their appointments are for life, and they cannot be removed from the bench by a vote of the people they purportedly serve. Their ruminations and the results of their decisions are insular, and they often trump the will of the people with regard to key social issues. Their decisions are presumed to be final, even though they may be at odds with the democratic majority of our citizens.

Herein lies the fundamental problem about the present construct of our federal judiciary as it has evolved since the founding. If, as stated in the 10th Amendment, all “rights and powers” not specifically itemized in the Constitution are held by the people collectively or by the states, what right does a court have to negate the will of the people? As it relates especially to key cultural issues like abortion, public religious displays, and definitions of marriage, should not the final court be the court of public opinion, rather than an oligarchy of judges insulated from, and not accountable to, the citizenry? In most of these cases, state courts have ruled, and appeals are then made to the federal judiciary.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom