Supremes Invent a New “Freedom”

Supreme Court extends same-sex marriage nationwide

The U.S. Supreme Court has invented a new kind of “liberty” which threatens the free exercise of religion.

By Rick Brinegar


After the recent U.S. Supreme Court decision legalized same-sex marriage in all 50 states, Associate Justice Anthony Kennedy tried to say that same-sex couples may now not be deprived of “that right and liberty” to marry which is found in the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Justice Kennedy also claimed that it would “disparage their choices and diminish their personhood to deny them this right’.”


By contrast, in his dissenting opinion, Chief Justice Roberts appeared to have some difficulty finding such a “right and liberty” in the Constitution. “Celebrate the availability of new benefits,” he said, “But do not celebrate the Constitution. It had nothing to do with it.”


Did such a “liberty” to marry a member of the same sex even exist when the Constitution was written? Frank Turek, in his One News Now article, “Why the 14th Amendment can’t possibly require same-sex marriage,” notes that when the Fourteenth Amendment was passed in 1868, homosexual behavior was a felony in every state in America. “So if the 14th Amendment was intended to require same-sex marriage,” writes Turek, “then every state in the union intended to throw the new couple into prison as soon as the marriage was consummated!” Up until now, marriage has always been a state, not a federal issue. Justice Antonin Scalia asserted that it is not the place of the Supreme Court to decide, saying, “Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. But the Court ends this debate, in an opinion lacking even a thin veneer of law.”


The context of the passage of the Fourteenth Amendment was the prevention of discrimination on the basis of race. Justice Douglas characterized the Amendment in this manner, saying, “The Fourteenth Amendment was passed to give blacks first-class citizenship.” The Constitution says nothing about same-sex marriage. When the Supreme Court re-defined the ancient exclusively male-female marriage relationship, it did something which is neither allowed by, nor required by, the U.S. Constitution.


As a result of the Supreme Court decision, a new “liberty” was created which now supersedes protections which are already precisely and clearly expressed in the Constitution. Russell Moore, president of the Southern Baptist Ethics and Religious Liberty Commission, believes that it was “improper” for the court to redefine an institution that has existed long before man thought of establishing a government. Moore cautioned, “I believe this action of finding some illusory Fourteenth Amendment right to same-sex marriage will have wide-ranging and perilous consequences for the stability of families and for freedom of religion.”


Presidential candidate Mike Huckabee had previously warned pastors attending a Family Research Council conference of the coming criminalization of Christianity. He told the pastors that if they refuse to perform same-sex marriages because of their convictions, “…your behavior will be criminal.” He said that pastors will not just be expressing a preference, but that they will be “…breaking the law subject to civil, for sure, and possibly criminal penalties for violating the law…” Rod Dreher, writing in Time Magazine, noted that, Justice Samuel Alito explicitly warned religious traditionalists that the decision “will be used to vilify Americans who are unwilling to assent to the new orthodoxy,” and will be used to oppress believers “by those who are determined to stamp out every vestige of dissent.” Dreher added that, we have to accept that we really are living in a “culturally post-Christian nation.”


The sexual revolution asserts that we are all are endowed with a sexual “freedom” to act out on our impulses as we choose without restraint, “as long as we don’t hurt anyone.” We are now living in a godless moral regime, which, with the backing of the court system and the regulatory state, will impose the priority of sexual-revolution liberty over religious liberty.


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