The world isn’t coming to an end now that same-sex marriage is legal in all states. But the way that the U.S. Supreme Court forced this historic change on everyone is a clear, present and grave danger.
In Obergefell v. Hodges, the court unnecessarily interrupted the formation of a national consensus approving gay marriage and set the stage for unremitting, costly and fruitless battles over how the high court’s dictum should be applied.
It’s reminiscent of how Americans were forging a middle ground on abortion on demand in their state legislatures decades ago — until the high-handed high court stepped in with unchallengeable, autocratic and poorly argued decisions in Roe v. Wade and Doe v. Bolton.
So, the fight over same-sex marriage isn’t over. Not by a long shot. People on opposite ends of the argument will make sure of that.
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Justice Anthony Kennedy’s majority opinion in Obergefell comes down to the argument that gay marriage is fair and good, not because it conforms to any law passed by Congress. To justify the decision, Kennedy had to twist the equal protection clause of the Constitution into an unrecognizable form that will open the door to many and fantastic claims for equality.
The Supreme Court’s job as set down in the Constitution and case law is to decide what actions are lawful. But in this overreaching decision, the Supreme Court determined that it could exclusively divine what is wise and proper, no matter what a Congress, elected by the American citizens, has determined.
In this, the court has cast its role as the Supreme Leader, like that guy running things in Iran, who can veto any government action he opposes. A pyramid with the Supreme Court sitting atop dangerously deviates from the formula of three co-equal branches of government the Constitution created.
Having taken over the question of marriage, lock, stock and barrel, the Supreme Court now will be the only body allowed to craft the compromises and settle the hair-splitting disagreements about just how the right to same-sex marriage should be applied.
An example of the most immediate issue: Just how much coercion can the government apply to force religions to bend to the will of government.
Obergefell is the beginning of an endless chain of expected challenges to religious liberty, the first of all rights enumerated in the Bill of Rights. How odd that the high court’s slightest majority found an unwritten right in the Constitution that could supersede the First Amendment’s clearly written directive that Congress shall make no law prohibiting the free exercise of religion.
The threat to religion lurking ahead was starkly revealed during oral arguments when Justice Samuel Alito asked the government’s lawyer, Solicitor General Donald Verrilli, if a religious-affiliated college that opposes same-sex marriage could lose government funding, as if it opposed interracial marriage. Verrilli’s response: “It is going to be an issue.”
That prompted the heads of more than 70 religious-affiliated schools to warn that the ruling would endanger those that adhere to “traditional religious and moral values.”
Will the tax-exempt status and government grants be cut off to schools that still respect, teach and uphold those values? What of a college that refuses to provide student housing to married same-sex couples? What of a church that refuses to rent its basement hall for a same-sex wedding reception? Numerous religious charities and hospitals could be targeted. State civil rights commissions and private lawsuits will round out the threat.
About 29,000 religiously affiliated pre-, elementary and high schools and 1,700 colleges and universities are endangered. To punish those institutions for their beliefs is a profound and momentous betrayal of the people who came to this continent hundreds of years before the Constitution was ratified seeking religious liberty.
Then there are the bakers, photographers and other small businesses that decline to provide services for same-sex weddings based on their religious beliefs. They’ve already been found guilty and punished, even though their services are widely available to same-sex couples elsewhere.
In response, Sen. Mike Lee, R-Utah, and Rep. Raul Labrador, R-Idaho, introduced the First Amendment Defense Act that would ban discriminatory government treatment — such as the withholding of government grants — against any person or institution that supports traditional marriage.
That bill would plug the loophole that Obergefell creates in the Religious Freedom Restoration Act, enacted nearly unanimously in 1993 as a response to an earlier Supreme Court case that weakened religious liberties.
Of course, if the law is enacted, the Supreme Court could always, in its infinite wisdom, kill it.
Dennis Byrne, a Chicago writer who blogs in The Barbershop on ChicagoNow.com.
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