Special Edition of The Briefing
June 26, 2015
This is a rush transcript. This copy may not be in its final form and may be updated.
It’s Friday, June 26, 2015. I’m Albert Mohler and this is a special edition of The Briefing.
1) Supreme Court affirms gay marriage as constitutional right, disregards democratic process
Released after this morning, the Supreme Court of the United States handed down its decision in the same-sex marriage issue in the case of Obergefell v. Hodges. By a 5-4 decision, the United States Supreme Court effectively today redefined marriage in all 50 states. By that 5-4 decision the court found that there was a constitutional right for same-sex couples to marry, a right to which all of the 50 states are obligated in terms of the legalization and full recognition of same-sex unions as marriage. As we had anticipated, the decision was written by Justice Anthony Kennedy who was joined in the majority by Justices Ginsburg, Breyer, Sotomayor and Kagan. This majority of five, that is five out of the nine justices, effectively and largely single-handedly as one branch of government redefined marriage for the entire nation.
The decision in this case was of course expected by the end of the court’s term early next week but it wasn’t exactly expected today. Part of the reason why it may been released today is because June 26 was the anniversary of the 2003 Lawrence decision on gay rights also with the opinion written by Justice Kennedy and it was the second anniversary of the Windsor case, released June 26, 2013, with the majority opinion also written by Justice Kennedy. Most informed observers looking at the case and listening to the oral arguments looking at the trajectory on the court and in the larger culture had expected the basic shape of the decision that was released today. It was anticipated, signals had been sent by justices both as they sat in the court and as they spoke outside the court’s operations indicating that this result was likely and yet in the final analysis the decision is far more damaging, far more devastating, far more significant than even we had expected.
In one sense that’s because this decision isn’t only about marriage. That’s not its only importance. It’s hard to overestimate just what it means that the court has redefined marriage. But in the larger sense, as Justice Scalia joined by three of the dissenters made very clear, what the court effectively did in this decision was to change the way the United States government operates and how we as a nation of laws come to have the laws under which we operate. That is a more ominous development even than just the redefinition of marriage because it will not stop with the redefinition of marriage.
Justice Kennedy’s opinion follows directly in the line of his opinions written in 2003 in the Lawrence case and 2013 in the Windsor case. In the most crucial section of the argument on page 22 Kennedy writes,
“These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.”
Now what we need to note there is the assertion of certain things that have never been asserted before. In the first place, that marriage is a fundamental right in this sense. In the sense that it would include or even could include same-sex couples. The other thing we need to note is that the actual wording of the 14th Amendment to the United States Constitution, the actual wording of its due process and equal protection clauses that were cited here, the actual wording never cites marriage at all. Not only does it not cite anything that would include so-called same-sex marriage, it doesn’t address marriage at all. The most important aspect of the majority opinion in this case is that it isn’t actually much of a legal argument at all. It certainly isn’t a constitutional argument and no one made that point more eloquently than the Chief Justice of the United States when he wrote in his dissent,
“The majority’s decision is an act of will, not a legal judgment. The right it announces has no basis in the Constitution.”
The Chief Justice openly accused the majority in this case of imposing their moral judgment, not any informed or rational legal judgment on the Constitution of the United States and thus on the nation. At the very end of his very eloquent dissent in a paragraph that indicates that the Chief Justice actually is for same-sex marriage, he just didn’t believe it was a constitutional right. He acknowledges that there will be those who will celebrate this decision. But then he writes quote,
“But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent.”
Elsewhere in his dissent, the Chief Justice says that the majority’s reasoning has far more to do with philosophy than with the law. The Chief said,
“The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now.”
The Chief Justice of the United States joined by other dissenters points to the fact that one of the most devastating aspects of today’s decision is the fact that the majority actually vilifies the opposition. It declares here that there is no rational basis for any opposition to same-sex marriage, to the right of same-sex couples to marry, and not only that, the majority claims that the only basis for opposing same-sex marriage is moral animus, that is an irrational moral judgment that should have no public consequence and should not be allowed to have any influence in terms of the life of the nation. And thus, as the Chief Justice and the other dissenters pointed out, the majority basically says that every previous Supreme Court, every previous justice of that court, every previous American and the majority of the states of the United States of America right now are operating out of a moral animus that must be corrected by the action of a 5-4 majority of the United States Supreme Court.
In so doing, as Justice Scalia was very clear, the majority on this court has simply substituted its own moral judgment for the Constitution of the United States and for the operation of a representative constitutional democracy. Whereas, just yesterday, in the Burwell decision the Supreme Court said that it was acting in deference to the legislature as Justice Scalia made very clear today in the case of same-sex marriage the court has decided to be the legislature. He then writes,
“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment,” speaking of the majority.”
He then wrote these very chilling words,
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Getting right to the point, Justice Samuel Alito wrote in his dissent to the majority opinion,
“Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.”
He then writes these words of clear warning,
“It will be used to vilify Americans who are unwilling to assent to the new orthodoxy.”
Once again, we’re not talking about someone on the margins of American political life. We’re talking about a sitting justice of the United States Supreme Court saying that this judgment will be used to vilify Americans who are unwilling to assent to the new orthodoxy and not only was it said by Justice Alito, it was said by Justice Thomas, it was said by Justice Scalia, it was said by the Chief Justice of the United States, John G. Roberts Jr. All four of those justices, three Associate Justices and the Chief Justice of the United States have told us that this decision handed down today will be used to vilify those who will not join the new moral orthodoxy. Further words of warning from Justice Alito included these,
“Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”
Even in the days leading up to the release of today’s decision, it was interesting that many in the mainstream secular media all of a sudden began publicly to acknowledge the inevitable conflict between same-sex marriage and religious liberty. Justice Thomas in his dissent wrote these words,
“In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
“The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph.”
So we should look carefully at that single paragraph that Justice Thomas mentions as being so inadequate. If anything, his estimation of its inadequacy is an understatement. Justice Kennedy wrote,
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Now notice very closely how Justice Kennedy in writing that paragraph limited religious liberty merely to teaching the precepts of our faith. That’s all it represents. We need to note that is not religious liberty as guaranteed in the free exercise and non-establishment clauses of the United States Constitution. The free exercise of our faith is not limited by the first amendment to the Constitution to merely teaching. Once again, it is very hard to overestimate the meaning of this decision just as it is related to the institution of marriage. That’s because in a 5-4 decision, the Supreme Court of United States effectively redefined marriage all across this nation in all 50 states. It states that there is a constitutional right for same-sex couples to demand to be married and thus there is no right for a state to define marriage in any way that would limit the access to same-sex couples to that institution. And so what we’re going to see, virtually immediately, is the fact that marriage is going to be redefined right before our eyes and as we have so often discussed on The Briefing when it comes to the redefinition of marriage, it is not simply a matter of including same-sex couples in an otherwise exclusively heterosexual institution. What the majority of the court did in the decision today in the name actually, stunningly enough, of acting on behalf of children was to make children incidental to marriage because what the court requires today is a definition, a redefinition of marriage, in which procreation is no longer necessarily a part of the picture at all. Not even in terms of potential or possibility.
As damaging as that legal argument is, we need to consider it’s more damaging even then it appears on its face and that was made clear by the Chief Justice when he wrote this section of his dissent,
“It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?”
Directly aiming himself at Justice Kennedy and his opinion with the majority, the chief then says,
“I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners,” that is, those who brought the case arguing for the legalization of same-sex marriage, have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.”
The Chief then said,
“But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.”
That means that the Chief Justice of the United States has set a clear warning that the logic of this case will not stop with the affirmation of same-sex marriage. That is a case that we have been making for months and for years. And now, once again, it’s not being said by someone as an observer of the court, those words were written by the Chief Justice of the United States of America. And thus, the decision handed down today by the Supreme Court of the United States of America not only is devastating to the institution of marriage, it is also devastating to the very existence of democracy in the United States of America. And we’re talking about the unexpected arrival and impact of a decision that was even worse than we might have imagined. And we’re talking about dissents offered by four sitting justices of the United States Supreme Court, including the Chief Justice of the United States warning that nothing less than democracy is at stake.
The most important development today was the decision handed down by the Supreme Court. But the other most interesting developments related to this are found in the responses that came to the decision once it was announced this morning. The President of the United States immediately celebrated the decision. Even as you’ll recall in 2008 he had run on a platform opposed to the legalization of same-sex marriage, he came to affirm it by his own process of what he called evolution by the time he ran for reelection in 2012. But the White House website today, that is the official website of the President of the United States through the White House, the White House website today openly celebrated in every way imaginable the decision handed down today by the United States Supreme Court. President Obama had put the power of his administration behind the case for same-sex marriage. His own chief lawyer, the Solicitor General of the United States, made the administration’s case before the court and almost immediately after the decision was handed down today, a portrait of the White House in rainbow colors was released on the official website of the President of the United States.
For Christians looking at these developments, there are many reasons for concern and for prayer for our nation. There is also a very clear alarm telling us that the context of our own lives, families, marriages and ministries has changed utterly before our eyes. That process of change did not begin with the decision handed down today. But today is a moment of undeniable importance. What happened today will change the course of history when it comes to the United States of America and as we have seen not only on the urgent question of marriage, the essential question of marriage, the question as to whether or for how long the United States of America will operate as a Constitutional Republic. But Christians also have to understand that the law, important as it is, was never the most important issue here. Even as the Chief Justice said that the majority opinion was actually a moral judgment disguised as a constitutional argument, we need to understand that it was the moral issue that was always paramount here.
The quest on the part of those who were seeking same-sex marriage was not just, it was never just, limited to access to the institution of marriage and to the any number of legal privileges that come with the institution of marriage. It was always rooted in a quest for the affirmation of their own sexual orientation and lifestyle, the affirmation of their relationships. Writing almost immediately after the opinion was released, Frank Bruni, a columnist for the New York Times, in a rather lengthy essay came down to the final paragraph, which I now read, he says,
“The Supreme Court’s decision wasn’t simply about weddings. It was about worth. From the highest of this nation’s perches, in the most authoritative of this nation’s voices, a majority of justices told a minority of Americans that they’re normal and that they belong — fully, joyously and with cake.”
Christians looking at a statement like that have to be not only concerned, but heartbroken. When we understand what is behind the quest for the legalization of same-sex marriage. It’s never been just about marriage. That’s been abundantly clear. It’s about moral sanction. It’s about moral approval. It’s about celebration of same-sex relationships. And now, Frank Bruni, writing on behalf of no doubt millions of others says, that the Supreme Court’s ruling will lead to that celebration and make no mistake, there are those in the society who would do everything within their power to coerce that celebration and to coerce it from churches, and Christian institutions, and Christian schools, and Christian citizens. But the thing we need to note with the greatest heartbreak is that declaring something normal doesn’t make it normal. Not when it runs into a head-on collision with God’s intention in creation and with God’s authority in his word, and with the gospel of Jesus Christ. One of the most devastating aspects of this is not just the damage this will do to marriage and to marriages, to children and the society at large, not only the direct religious liberty threat this now represents in the collision between same-sex marriage and Christian conviction. One of the saddest aspects is that this simply can’t deliver on the promises of those who were behind the effort in the first place. Our society may now, by virtue of the authority of the United States Supreme Court declare the legal reality of same-sex marriage, but it can’t, it can’t possibly actually normalize same-sex relationships as being the same as the conjugal union of a man and a woman in marriage.
Finally, when it comes to coercing the new moral regime, one of the most interesting developments that again came very shortly after the decision of Supreme Court was released today was an editorial statement that came from a newspaper in Harrisburg, Pennsylvania. The headline of their editorial,
“The Supremes got it right – It’s no longer ‘gay marriage.’ It’s ‘marriage.’ And we’re better for it”
What’s most remarkable about this editorial is how it concludes. The paper writes this,
“As a result of Friday’s ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage.”
They went on to say,
“These unions are now the law of the land and we would not entertain such criticisms that these unions are morally wrong or unnatural, any more than we would entertain criticisms of interracial marriage or those claiming that women are less equal than men in the eyes of the law.”
That paragraph is actually a somewhat softer version of the immediate statement made by the paper in which it said there would be no publication of any such letters or op-eds at all. Now they say the use of such arguments will be strictly limited and for a limited time and we need to note exactly what’s going on here. We’re being told that the Supreme Court of United States in its ruling today ended the argument. The debate is over. Same-sex marriage is now a fact. And as this newspaper says, so far as the United States Supreme Court is concerned, there is no such thing as same-sex marriage. There is only marriage and it may be enjoyed by same-sex couples or opposite sex couples. It really doesn’t matter. And this is where the church of the Lord Jesus Christ has to understand that as much as the society around us, for any number of reasons, is going to be saying the debate is over, the issue is settled. It isn’t. It can’t be. It won’t be.
Christians operating out of a biblical worldview have to understand all that is at stake here, far more than the society around us recognizes and far more even than we made anticipated just 24 hours ago. In a statement I released to the media immediately after the decision, I wrote these words with which I will conclude the special edition of The Briefing.
“In one sense, everything has changed. And yet, nothing has changed. The cultural and legal landscape has changed, as we believe this will lead to very real harms to our neighbors. But our Christian responsibility has not changed. We are charged to uphold marriage as the union of a man and a woman and to speak the truth in love. We are also commanded to uphold the truth about marriage in our own lives, in our own marriages, in our own families, and in our own churches.
“We are called to be the people of the truth, even when the truth is not popular and even when the truth is denied by the culture around us. Christians have found themselves in this position before, and we will again. God’s truth has not changed. The Holy Scriptures have not changed. The Gospel of Jesus Christ has not changed. The church’s mission has not changed. Jesus Christ is the same, yesterday, today, and forever.”
Thanks for listening to this special edition of The Briefing. For more information go to my website at AlbertMohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary go to sbts.edu. For information on Boyce College just go to BoyceCollege.com.
I’ll meet you again on Monday for The Briefing.
