Everything has changed and nothing has changed. The Supreme Court’s decision yesterday is a central assault upon marriage as the conjugal union of a man and a woman and in a five to four decision the nation’s highest court has now imposed its mandate redefining marriage on all fifty states.
As Chief Justice Roberts said in his dissent, “The majority’s decision is an act of will, not a legal judgment.”
The majority’s argument, expressed by Justice Kennedy, is that the right of same-sex couples to marry is based in individual autonomy as related to sexuality, in marriage as a fundamental right, in marriage as a privileged context for raising children, and in upholding marriage as central to civilization. But at every one of these points, the majority had to reinvent marriage in order to make its case. The Court has not merely ordered that same-sex couples be allowed to marry – it has fundamentally redefined marriage itself.
The inventive legal argument set forth by the majority is clearly traceable in Justice Kennedy’s previous decisions including Lawrence (2003) and Windsor (2013), and he cites his own decisions as legal precedent. As the Chief Justice makes clear, Justice Kennedy and his fellow justices in the majority wanted to legalize same-sex marriage and they invented a constitutional theory to achieve their purpose. It was indeed an act of will disguised as a legal judgment.
Justice Kennedy declared 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 cannot be deprived of that right and that liberty.” But marriage is nowhere to be found in the Constitution. As the Chief Justice asserted in his dissent, the majority opinion did not really make any serious constitutional argument at all. It was, as the Chief Justice insisted, an argument based in philosophy rather than in law.
The Supreme Court’s over-reach in this case is more astounding as the decision is reviewed in full, and as the dissenting justices voiced their own urgent concerns. The Chief Justice accused the majority of “judicial policymaking” that endangers our democratic form of government. “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,” he asserted. Further: “Over and over, the majority exalts the role of the judiciary in delivering social change.”
“The majority,” he made clear, “lays out a tantalizing vision for the future for Members of this Court. If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”
That is a haunting question. This Chief Justice’s point is an urgent warning: If the Supreme Court will arrogate to itself the right to redefine marriage, there is no restraint on the judiciary whatsoever.
Justice Antonin Scalia offered a stinging rebuke to the majority. “This is a naked judicial claim to legislative–indeed super-legislative–power; a claim fundamentally at odds with our system of government,” he stated. Justice Scalia then offered these stunning words of judgment: “A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The Chief Justice also pointed to another very telling aspect of the majority opinion. The Kennedy opinion opens wide a door that basically invites looming demands for the legalization of polygamy and polyamory. As Chief Justice Roberts observed: “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.” Striking, indeed. What is perhaps even more striking is that the majority did not even appear concerned about the extension of its logic to polygamy.
As the decision approached, those of us who have warned that the redefinition of marriage will not stop with same-sex unions were told that we were offering a fallacious slippery-slope argument. Now, the Chief Justice of the United States verifies that these concerns were fully valid. You can count on the fact that advocates for legalized polygamy found great encouragement in this decision.
The Supreme Court of the United States is the highest court in the land, and its decisions cannot be appealed to a higher court of law. But the Supreme Court, like every human institution and individual, will eventually face two higher courts. The first is the court of history, which will render a judgment that I believe will embarrass this court and reveal its dangerous trajectory. The precedents and arguments set forth in this decision cannot be limited to the right of same-sex couples to marry. If individual autonomy and equal protection mean that same-sex couples cannot be denied what is now defined as a fundamental right of marriage, then others will arrive to make the same argument. This Court will find itself in a trap of its own making, and one that will bring great harm to this nation and its families. The second court we all must face is the court of divine judgment. For centuries, marriage ceremonies in the English-speaking world have included the admonition that what God has put together, no human being – or human court – should tear asunder. That is exactly what the Supreme Court of the United States has now done.
The threat to religious liberty represented by this decision is clear, present, and inevitable. Assurances to the contrary, the majority in this decision has placed every religious institution in legal jeopardy if that institution intends to uphold its theological convictions limiting marriage to the union of a man and a woman. This threat is extended to every religious citizen or congregation that would uphold the convictions held by believers for millennia. Justice Clarence Thomas warned in his dissent of “ruinous consequences for religious liberty.”
One of the most dangerous dimensions of this decision is evident in what can only be described as the majority’s vilification of those who hold to a traditional view of marriage as exclusively the union of a man and a woman. Justice Samuel Alito stated bluntly that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy.” According to the argument offered by the majority, any opposition to same-sex marriage is rooted in moral animus against homosexuals. In offering this argument the majority slanders any defender of traditional marriage and openly rejects and vilifies those who, on the grounds of theological conviction, cannot affirm same-sex marriage.
In a very real sense, everything has now changed. The highest court of the land has redefined marriage. Those who cannot accept this redefinition of marriage as a matter of morality and ultimate truth, must acknowledge that the laws of this nation concerning marriage will indeed be defined against our will. We must acknowledge the authority of the Supreme Court in matters of law. Christians must be committed to be good citizens and good neighbors, even as we cannot accept this redefinition of marriage in our churches and in our lives.
We must contend for marriage as God’s gift to humanity – a gift central and essential to human flourishing and a gift that is limited to the conjugal union of a man and a woman. We must contend for religious liberty for all, and focus our energies on protecting the rights of Christian citizens and Christian institutions to teach and operate on the basis of Christian conviction.
We cannot be silent, and we cannot join the moral revolution that stands in direct opposition to what we believe the Creator has designed, given, and intended for us. We cannot be silent, and we cannot fail to contend for marriage as the union of a man and a woman.
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.
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R. Albert Mohler Jr.