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Democracy Is Dying; Persecution Is Coming

The Supreme Court’s opinions in the Obergefell vs. Hodges case — the majority opinion constitutionalizing same-sex marriage and the dissents — can be read here. [1]You will not be surprised that the majority opinion in Obergefell, written by Justice Anthony Kennedy, is full of gaseous eructations from the judicial pyloric, e.g., “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” And who says a two-person union is unlike any other in its importance? This is groundless assertion.

You really must read the four dissenting opinions in the case. Even I am shocked by the bracing quality of the rhetoric and the analysis. If these justices are correct, this is a dark day for American democracy, and for the practice of traditional religion in America.

Chief Justice John Roberts wrote the lead dissent. He says that he does not, in his dissent, take a position on whether or not we should have same-sex marriage. His contention is that the Constitution doesn’t say anything about it — yet the five-justice majority have invented a right to gay marriage out of whole cloth. Excerpts:

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

More Roberts:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”

As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

We think we are autonomous, willing creatures, who owe nothing to nature, to God, the past, or the future. More Roberts:

The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. 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.

Religious liberty and the future of orthodox Christianity is at stake — and the Chief Justice is not sanguine about it:

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.

There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. [Emphasis mine — RD]

Justice Antonin Scalia, in his dissent, sets the house on fire. As in his past opinions on issues related to homosexuality, Scalia affirms that he does not take a position on whether or not laws liberalizing homosexuality are right or wrong. Instead, he focuses on the right of the judiciary to subvert the political process and impose its own views on the country. Excerpts:

So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. [Emphasis mine. — RD]

Note this sentence:

A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

Scalia points out that the justices who imposed this politically charged decision are drawn from an elite, unrepresentative class:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

This is the language of revolution, pure and simple. That’s how serious this is to Justice Scalia. Boy, is he outraged at the gasbag Anthony Kennedy, author of the majority opinion. Read on:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Pow! More:

Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)

And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”  (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes.

And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.)

I could go on. The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

 

 

Scalia ends ominously:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

This decision does not surprise me, or, I suspect, anybody. What I was looking for is some sense in the majority opinion that religious liberty was important to the decision, and would be safeguarded. I had hoped that the libertarian Justice Kennedy would appreciate the importance of this issue. He did not — and Justice Alito, in his dissent, highlights the dangers facing orthodox Christians:

ALITO:

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. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. [Emphasis mine. — RD]

More:

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights.

The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. [Emphasis mine. — RD]

Another ominous ending by a dissenting justice:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

I will have a lot more to say about the decision later, but I’ll post this now so you readers can start commenting. I will say this: Though the result was expected, the sweeping character of the Obergefell decision, and its unwillingness to do more than nod and smile at the First Amendment, and tell religious believers to hope for the best, is even worse than many of us will have anticipated. The warnings of the dissenting justices about the radical challenge to our democracy, and the threats now faced by religious believers, are absolutely chilling — and indeed, prophetic.

This is not the end of something. For Christians, because of the text of the decision and the means by which the Supreme Court majority arrived at it, this is only the beginning of some very dark and difficult days. It is time to confront this soberly but realistically, and prepare for the resistance.

293 Comments (Open | Close)

293 Comments To "Democracy Is Dying; Persecution Is Coming"

#1 Comment By Eamus Catuli On June 27, 2015 @ 5:48 pm

Further to DD’s call for nullification, here’s your best evidence that it’s not going to happen:

If the Court is unwilling to abide by the specific language of our laws as written, and if it is unhindered by the clear intent of the people’s elected representatives, our constitutional options for reasserting our authority over our government are limited.

That’s Ted Cruz, [2] about both the Obamacare and gay-marriage rulings, questioning the very legitimacy of the current Supreme Court, but then proposing…. legislation and constitutional amendments, neither of which have any hope of passing. He says nothing about nullification or telling the federal government to “pack sand.”

And Cruz is the designated angry guy in the field of GOP hopefuls. The rest of them — certainly the ones who have any remote chance of actually winning a presidential nomination — won’t go any further than he does, and in most cases not as far. So packing sand just is not on the menu. Or rather, the people packing the sand will be a different group than you were hoping for.

In the wise words of that old, old saying that I learned at my grandpappy’s knee: They’re here; they’re queer; they’re married; get used to it.

#2 Comment By VikingLS On June 27, 2015 @ 5:52 pm

“VikingLS or something like that. He would often get exasperated at the way progressive commenters participate on this blog, and asked Rod to start blocking more comments”

I NEVER asked Rod to block more comments. Either you presumed that that just had to be my point, or you’re lying.

My point was that I resented the way that liberal commenters have turned what s supposed to be a publication aimed at an internal discussion on the right and turned it into a tedious back and forth where they don’t even listen to opposing opinions to any degree greater than is required for them to repeat their own orthodoxies.

That is NOT the same thing as asking Rod to censor them.

#3 Comment By Viking LS On June 27, 2015 @ 5:56 pm

And Micheal as I recall your “shooting me down” consisted of telling me that it would be boring here without the liberals to argue with. That’s not exactly a crushing argument.

#4 Comment By Eamus Catuli On June 27, 2015 @ 5:58 pm

Further to Cruz: It’s actually kind of amazing. In Fall 2013, Cruz was calling for shutting down the government to de-fund Obamacare. Now, he’s not even proposing to de-fund the Supreme Court or the Solicitor General’s office (which defended Obamacare before the Court). Compared to his own history, his position this week amounts to abject surrender. And again: he’s about the most militant elected official you’re going to find on issues like these.

#5 Comment By Andrew W On June 27, 2015 @ 6:10 pm

I hope Panda won’t mind me saying this, but while I think he’s more than a bit paranoid about people talking about armed resistance meaning that they need to commit mass murder, as a Russian Jew I can understand why his mind goes to “pogrom” faster than it does Lexington and Concord.

#6 Comment By DeepSouthPopulist On June 27, 2015 @ 6:14 pm

I don’t see any impending persecution. – Bobby

The bigger issue concerns what happens to SSM opponents in white-collar professional environments. In this day and age, support for SSM has become a marker of one’s membership in the professional classes. – Bobby

?

#7 Comment By Eamus Catuli On June 27, 2015 @ 8:36 pm

Erin and Patrick, your evasions are really remarkable. You talk (as if this were the issue) of people who have never heard of Christ or don’t know of Him “through no fault of their own.” You really don’t want to get down to cases, do you? OK, here, I’ll make it real simple: In the First Things symposium that RD linked us to today, the contributors included Shalom Carmy of Yeshiva University and the Rabbinical Council of America, and Rabbi David Novak of the Union for Traditional Judaism. They’re both fully anti-SSM and anti-Obergefell. But they are American Jews who have unquestionably heard of Christ and have the Good News available to them — they even read and contribute to First Things! — and who could accept Him as their Lord and Savior if they chose to. They apparently choose — choose! — not to.

But again, let me stress: They are anti-SSM. So, does that trump refusing to acknowledge the Incarnation, the Resurrection, the Atonement, the Trinity, the Divinity of Christ, or the one Holy, Catholic, and Apostolic Church? What really matters here — what do you people really believe, or believe in? Yes, you make nice word salads, but this should not be a hard question.

@Engineer Scotty, the “rainbow flames” quote was from a post on her own blog that Erin linked us to, not from this thread.

@Turmarion, I meant to add, as one of your RSS followers, thanks for restarting your blog a few days ago.

#8 Comment By Patrick On June 27, 2015 @ 8:42 pm

@ Engineer Scotty:

“Domestic Muslims generally aren’t a violent lot–far more domestic terrorism…”

Serious question: would you rather live in a country that was 70% Muslim or one which is 70% Christian?

“It isn’t about you”

Yeah, well, quote yourself the next time a Christian florist/baker/BandB owner is “left alone” (sued) by a gay couple who can’t find somewhere else to buy flowers/cake/accomodations.

#9 Comment By Andrew W On June 27, 2015 @ 10:46 pm

” Raising up a new elite that will respect the plumbers of the world and that will use their gifts to rule society with a sense of humility and stewardship can and must be done.”

I don’t much like the idea of a ruling class period, but if we want to unseat the current one I would suggest that you not vote for people who went to Ivy League universities for a four or five election cycles. That seems to be where the old boy network that is currently dominating the beltway make their connections.

#10 Comment By antheros On June 27, 2015 @ 11:23 pm

“But the solution to the problem for Christians is to make Christianity compelling again.”

Actually, the solution these viciously homophobic Christians want is to make their brand of Christianity compulsory again.

As I said before, I hope DSP gets his wish and the homophobes ally themselves with the white supremacists and the David Koreshes.

#11 Comment By Isidore the Farmer On June 27, 2015 @ 11:44 pm

Franklin,

Whether you engage me or not is up to you. But you should consider that your promised future defense might not even be necessary were it not for your regular current and past slander. And so long as you continue slandering the Christian dead, I will certainly be engaging you.

You paint Christians with broad strokes of having disregard for the 1st amendment, of having disregarded it since day one. You bolded that portion. And it is simply false.

I doubt you would appreciate it if the Christians on this forum regularly spent 2-3 paragraphs slandering your religious cohorts or ancestors, and then at the end said, “But hey, I’ll defend you if needed.”

How about you begin proving your willingness to defend us by fist discontinuing the slander you direct towards our dead? That would indeed be a nice first step. If you are not willing to do that, then you should stop portraying yourself as one of our unlikely yet heroic defenders.

#12 Comment By Siarlys Jenkins On June 28, 2015 @ 12:39 am

The part you’re missing is the 14th Amendment, which was adopted after the Civil War explicitly to require the states to respect the federal rights of all citizens.

The full deck of facts is a bit more nuanced than that, if you can handle that.

The constitution does indeed leave marriage to the states. That is why Windsor ruled that the federal government cannot have a policy of deferring to the states as to whether someone is married, EXCEPT for certain disfavored criteria duly adopted by state law, but deemed repugnant to federal policy.

The fourteenth amendment covers a lot of ground, but among other things, it certainly does require that in matters of law that states are free to write, as the legislature, or the state courts, in the exercise of their appropriate discretion, may see fit, states must do so in a manner that applies equally to all citizens (similarly situated).

So the real question is, or was, has a state that defines marriage as the union of a man and a woman, you know, like that IS what makes a marriage, denied some citizens the equal protection of the law. I say no, five Supreme Court justices say yes, their writ is law, my opinion is not. But if you really want to rehash the pros and cons…

I am not impressed with the argument “the court over-rode the will of the majority.” It often must do so. If you don’t understand why, read The Federalist Papers. But it only has jurisdiction to do so when the letter of what IS written into the constitution has been transgressed, not merely because the court thinks something is good public policy.

This is not a federal supremacy question — the federal government has no jurisdiction. The federal courts have limited jurisdiction — only if there is a prima facie showing that a state may have denied someone the equal protection of the laws do federal courts have any power to rule.

To say that the Fourteenth Amendment requires state to “respect the federal rights of all citizens” is shallow, incomplete, sloppy, and misleading. Please, try looking at the actual language of the Fourteenth Amendment. It provides that the citizens of any state are citizens of the United States. It provides that no state shall deny any citizen of the United States life, liberty, or property without due process of law. It provides that no state shall deny to any person (not citizen) the equal protection of the laws.

There was already a supremacy clause, so whatever “federal rights” a person had were already the supreme law of the land. The amendment recognized that Madison was correct when he argued at the Constitutional Convention that states could be as great a source of tyranny as the feds could. Sloppy language by half-educated talking heads has been the bane of this debate.

A lot of real power in this society is vested in the hands of what can only be described as a parasite class.

Now you’re talking, DeepSouth! The old time Wobbly songs talked about the capitalists as “parasites” and “shirkers” the way the modern demagogue talks about “welfare queens.” And the parasite class remains exactly that.

#13 Comment By Patrick On June 28, 2015 @ 12:42 am

@ Eamus Catuli:

“Yes, you make nice word salads, but this should not be a hard question.”

Seriously, what’s the question? I mean one sentence here. I’m not trying to evade you. I really can’t tell what you’re asking.

If the question is whether I or Erin Manning can say someone is “definitely damned”, not only can we not, but we’re *commanded by God* not only not to judge someone’s soul but also to positively hope for everyone’s salvation. Moreover, the Catholic Church cannot say with certainty than any soul has ever actually been damned (Satan is damned – there is no hope for Satan. I’m talking about people.) (St. Faustina had a private revelation about people, but it isn’t canon and I’m not sure it’s worthy of belief.)

If it’s something like “does someone’s conservatism matter more than their faith in Christ”, then my question is “for the purposes of building a political coalition or for the purposes of their soul”? Obviously, faith in Christ is more important for their soul, being simpatico on social issues is more important for a political coalition.

So, please ask the question in one sentence if I haven’t answered it in the above two paragraphs.

#14 Comment By Michael Guarino On June 28, 2015 @ 1:09 am

@Viking

My point was that I resented the way that liberal commenters have turned what s supposed to be a publication aimed at an internal discussion on the right and turned it into a tedious back and forth where they don’t even listen to opposing opinions to any degree greater than is required for them to repeat their own orthodoxies.

This is a fair point, and is basically what you typically have argued. I thought you actually did ask for him to block some comments that time, but I could be mistaken. If I was mistaken, I am sorry; other than that time, you are a really solid contributor in my mind.

And there are certainly cases where liberals really are useless here. Especially in the Benedict Option debates where their instincts seem to be to treat it as the moral equivalent of white flight.

#15 Comment By Eamus Catuli On June 28, 2015 @ 6:57 am

Thanks, Patrick. Here’s my shot at putting it in one sentence:

Is it your position (or that of your church) that being Jewish — or Muslim, or Hindu, etc. — is, by itself, mortally sinful and/or merits eternal damnation, even if the person is otherwise deeply religious, of unimpeachably good character and conduct, and a faithful ally in the fight against the world’s immoralities?

Yes, I know, it’s not for you personally to judge any given individual, there might be redemption at the last second, etc. etc. But that’s the question as simply as I can put it.

The immediate context for it is the exchange between Erin and Turmarion about universalism, but it’s come up here before, and it interests me because it goes to the question of what exactly the traditionalists are so anxious about protecting (or losing). They have, in effect, entered the political arena asking that certain beliefs they hold about sex, gender and marriage be given legal deference, even at the possible cost of disadvantaging whole classes of people. They say these beliefs are extremely important, are central to their faith, and indeed represent commands handed down from the God of the whole universe. Hence they reflect the very deepest truths about reality, truths which any society endangers itself by disregarding. And so, the trads tell their fellow citizens, certain implications of these beliefs should be written into (or preserved in) the secular civil law.

Well, their fellow citizens are entitled to ask how serious they really are about all this. Put simply: If the trads themselves seem quite happy to disregard, for their own or their friends’ or political allies’ convenience, other teachings — indeed those most clearly highlighted in their own creeds — then it suggests that the religious claims are not really what this is all about, that they’re basically a pretext or a post facto justification for what is actually a set of social arrangements preferred for other reasons: because of personal psycho-sexual hangups, or because being gay is thought to be “icky,” or out of an authoritarian wish to police the lives of others, or out of idealized nostalgia for the 1950s world of Ozzie and Harriett, or something else — at any rate, some kind of “animus,” as Justice Kennedy would put it, not a sincere and consistent religiously motivated point of view.

And so we see where the federal courts have ultimately come down. Even a Catholic justice like Kennedy is not persuaded that we’re dealing with a serious, conscientious position that should command respect from other citizens or should trump other values like equality under the law. Why not? Kennedy may be focusing on different inconsistencies than I am, but what I’m suggesting is that this cherry-picking among the doctrines of their own that they hold up as all-important has weakened the case that conservative Christians have put before the wider public. Put simply, they seem in practice to think that it’s far more important whether, when and how people have sex than whether they believe that Jesus, the Christ, is the Way, the Truth, and the Life, apart from which no one comes to the Father. It’s an issue of credibility, in short.

#16 Comment By Eamus Catuli On June 28, 2015 @ 7:23 am

Siarlys, you have that charmingly pedantic streak so characteristic of autodidacts. I wasn’t conducting a legal seminar, I was answering a question from one guy who seemed to have heard of the 10th Amendment but not the 14th.

But OK, if you think it’s important to chop the broccoli more finely, let’s go straight to the horse’s mouth, shall we? Here’s the resume of the 14th’s legislative history that Justice Black added to his classic dissent in the Adamson case. Have at it:

The legislative origin of the first section of the Fourteenth Amendment seems to have been in the Joint Committee on Reconstruction.

When, on February 26, the proposed amendment came up for debate, Mr. Bingham stated that “by order … of the committee … I propose the adoption of this amendment.” In support of it he said:

“… the amendment proposed stands in the very words of the Constitution of the United States as it came to us from the hands of its illustrious framers. Every word of the proposed amendment is to-day in the Constitution of our country, save the words conferring the express grant of power upon the Congress of the United States. The residue of the resolution, as the House will see by a reference to the Constitution, is the language of the second section of the fourth article, and of a portion of the fifth amendment adopted by the First Congress in 1789, and made part of the Constitution of the country….

Opposition speakers emphasized that the Amendment would destroy state’s rights and empower Congress to legislate on matters of purely local concern. Some took the position that the Amendment was unnecessary because the Bill of Rights were already secured against state violation. Mr. Bingham joined issue on this contention:

“The gentleman seemed to think that all persons could have remedies for all violations of their rights of ‘life, liberty, and property’ in the Federal courts.

“I ventured to ask him yesterday when any action of that sort was ever maintained in any of the Federal courts of the United States to redress the great wrong which has been practiced, and which is being practiced now in more States than one of the Union under the authority of State laws, denying to citizens therein equal protection or any protection in the rights of life, liberty, and property…..

“… A gentleman on the other side interrupted me and wanted to know if I could cite a decision showing that the power of the Federal Government to enforce in the United States courts the bill of rights under the articles of amendment to the Constitution had been denied. I answered that I was prepared to introduce such decisions; and that is exactly what makes plain the necessity of adopting this amendment.

“Mr. Speaker, it appears to me that this very provision of the bill of rights brought in question this day, upon this trial before the House, more than any other provision of the Constitution, makes that unity of government which constitutes us one people, by which and through which American nationality came to be, and only by the enforcement of which can American nationality continue to be…”What more could have been added to that instrument to secure the enforcement of these provisions of the bill of rights in every State, other than the additional grant of power which we ask this day? …

As one important writer on the adoption of the Fourteenth Amendment has observed, “Bingham’s speech in defense and advocacy of his amendment comprehends practically everything that was said in the press or on the floor of the House in favor of the resolution ….”

In introducing the proposed Amendment to the House on May 8, 1866, Mr. Stevens speaking for the Committee said:

“The first section [of the proposed amendment] prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the ‘equal’ protection of the laws.

“I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate *equally* upon all.”

[Additional remarks by Rep. Bingham:]

“Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be — for they are not and cannot be fully defined in their entire extent and precise nature — to these should be added the personal rights guarantied and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit; the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.

“Now, sir, here is a mass of privileges, immunities, and rights, some of them secured by the second section of the fourth article of the Constitution, which I have recited, some by the first eight amendments of the Constitution; and it is a fact well worthy of attention that the course of decision of our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizens solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for public use without just compensation is not a restriction upon State legislation, but applies only to the legislation of Congress.

“Now, sir, there is no power given in the Constitution to enforce and to carry out any of these guarantees. They are not powers granted by the Constitution to Congress, and of course do not come within the sweeping clause of the Constitution authorizing Congress to pass all laws necessary and proper for carrying out the foregoing or granted powers, but they stand simply as a bill of rights in the Constitution, without power on the part of Congress to give them full effect; while at the same time the States are not restrained from violating the principles embraced in them except by their own local constitutions, which may be altered from year to year. The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

#17 Comment By James On June 28, 2015 @ 8:42 am

Speaking of gaseous eructations……this piece you’ve written is silly.

Are you really shocked by the “bracing quality” of Scalia’s dissent? I mean, you have read other Scalia dissents before, right? Of course he’s prophesying the end of democracy — he’s an alarmist gasbag.

History will be on the side of Kennedy, not Scalia.

#18 Comment By panda On June 28, 2015 @ 10:30 am

“I hope Panda won’t mind me saying this, but while I think he’s more than a bit paranoid about people talking about armed resistance meaning that they need to commit mass murder, as a Russian Jew I can understand why his mind goes to “pogrom” faster than it does Lexington and Concord.

Just to clarify- when I read people like DSP, I don’t think about pogroms, because I know that they are isolated losers with no mass following of the kind one would need to form a pogrom. What worries me about people like him is the strong whiff of Oklahoma City his “writings” are exuding..

#19 Comment By panda On June 28, 2015 @ 10:42 am

“I suppose panda is suggesting in a rather roundabout, pedantic way that if Rod does not ban views like mine, then he is implicating himself in a tiny way in creating friendly cultural waters. Implicit in all that of course is the idea that there is a potentially large audience of people in the wider culture for which views like mine and the others here that panda doesn’t like will resonate. That I suspect is probably true.

Don’t flatter yourself. There is probably no more than 1-2% of Americans who won’t be disgusted with your writings. My only concern is that, as was the case was with Dylann Roof, the writings of the more stable of the 1-2% will make less stable members of that tribe to form militias, go for armed resistance and so on.

[NFR: Panda, this is the third or fourth time in the same thread that you have made this point. We hear you! — RD]

#20 Comment By Patrick On June 28, 2015 @ 1:18 pm

@ Eamus Catuli:

Thanks. I think there is a lot to your “religion as pretext” argument, and it is also possible that many religious use the issue as a way to make themselves feel “better than” the social elite (“at least we don’t support gay marriage like all those limousine liberals!”) In other words, religious orthodoxy used to disguise envy is another thing I’d add to the “possible nefarious reasons people are opposing SS”M”. Though I’ll also point out that neither you, nor I, nor Justice Kennedy are the judge of who is serious and who isn’t because our individual right to free religious exercise and freedom of conscience are guaranteed by the First Amendment. But let’s get to the question rather than argue about that:

As to the question: Firstly, everybody merits damnation. Christians don’t merit damnation for idolatry, but for everything else (like our lack of charity, ha.) Non-Christian religious obviously merit damnation for idolatry under the circumstance of having rejected Christ, but, but, but: only God could possibly know the scope of the person’s actual knowledge of and actual rejection of Christ and His Church. Which is a large disgorgement to the general rule, making it absolutely possible for non-Christians to be saved (as cited in the Catechism). I hope you can see that, in theory, only the Creator *really* knows the creature’s soul and so trying to say “this person has definitely subjectively thought of and rejected Our Lord” merely by adding external facts of their lives isn’t possible. Not because we’re trying to be merciful, but because we can’t actually see someone else’s soul under the light that God can, and couldn’t assess justly given our own sinfulness even were it possible.

So yes, idolatry is a mortal sin meriting damnation. (An interesting side question is whether Jews and Muslims, who *partly* know the Real God, are in a better position than a pagan. I’ve never thought about it.)

I hope that helps, let me know if it is unclear. Also, I’m a trad Catholic and so the Catechism – widely available – is a lot better of a source of what Catholics believe than I am.

#21 Comment By Turmarion On June 28, 2015 @ 1:43 pm

Eamus, glad you like the blog–thanks! 🙂

For just a brief addition re salvation: I had a passing acquaintance with theologian and writer [3], under whom I took a course on the Psalms. She’s a very nice person and worthwhile to read.

Anyway, she’s in her mid-70’s by now, so she grew up pre-Vatican II. She told us once about how she’d been taught that her Presbyterian father, because he was not Catholic, was going to Hell. Period. It was, she said, greatly disturbing to her as a child.

I have also heard tales (both in person and by reading) from pre-Vatican II Catholics of how they used to “buy pagan babies” (make contributions so pagan babies could be baptized); how they were cautioned not even to set foot in a Protestant Church, for fear of their souls; that they were taught that anyone who left the Church and wasn’t reconciled to it before death was damned; and so on and on and on.

It’s also true, as you say, Eamus, that “invincible ignorance” was in those days interpreted very, very narrowly. If you had no way to know of Christ at all (e.g. a Precolumbian Indian) or were–well, simple-minded–you might–might be OK. However, examples such as the rabbis you mention, who are perfectly aware of the Gospel (and who in many cases have read the New Testament) would have been considered culpable in their rejection of Christ, and thus, barring conversion, hell-fodder.

Trads, both schismatics such as the Society of St. Pius X (SSPX) and non-schismatics really have the better argument here. If you actually do the heavy lifting and read the documents, there was a sharp shift in the 1960’s away from the view that almost all non-Catholics, even other Christians, were ipso facto damned, to the current view, expressed by Erin and Patrick, which emphasizes that we don’t know who is damned and which actually comes close to MTD (“Most people are nice, and that’s enough!”)

Now for Trads this means the Popes fell into error and that there are no valid Popes since Pius XII (the sedevacantist view); or that the change is borderline or perhaps formal heresy, but not directly attributable to the Popes, who are thus valid though grievously misguided.

For me, it indicates that there was a wrong turn in the early Middle Ages away from the fairly pervasive universalism of the early Church, and the move back in that direction is a course correction.

The thing is, I can respect a Trad on this, while disagreeing on Hell, because both the Trad and I agree that there was a profound shift on the notion of salvation fifty years ago. Those, like Erin, who argue for a sort of almost-universalism (at least in respect to other churches and religions), and seem to think this view was regnant or uncontroversial, seem to lack historical perspective. Hell, they should ask their grandparents or those of that generation.

Now in fairness, the Catholic Church, at least, has always been willing to make tactical alliances with non-Catholics and even non-Christians–look at the Thirty Years War and the coziness of France with the Ottomans at one time. However, in the current context, when the “Nones” (no professed religion) are increasing in number and society is decried as descending into pagan chaos, it is a logical question to ask why uniting against the supposed harm caused by the 2% of the population who’s gay is more important than the close to 20% of the population that rejects religion altogether; to say nothing of those who, while equally conservative, have other, very much incompatible, beliefs.

#22 Comment By Rob G On June 28, 2015 @ 1:58 pm

“Put simply: If the trads themselves seem quite happy to disregard, for their own or their friends’ or political allies’ convenience, other teachings — indeed those most clearly highlighted in their own creeds — then it suggests that the religious claims are not really what this is all about, that they’re basically a pretext or a post facto justification for what is actually a set of social arrangements preferred for other reasons…some kind of “animus,” as Justice Kennedy would put it, not a sincere and consistent religiously motivated point of view.”

Why do you keep asking this when it’s been answered already by myself and others? I’m beginning to think you’re just a loquacious species of troll. The fact that you do not like the answers does not mean that you’ve not been answered.

#23 Comment By Raskolnik On June 28, 2015 @ 2:51 pm

Turmarion, I’m not trolling. It’s simply not the case that, in orthodox Christian theology (I dunno about your streetcorner Pentecostal), there was ever a strict binary opposition between being a Christian and going to Hell. Yes, Christ is God, “there is no path to the Father but through Me,” etc., but in the orthodox literature it’s just never been that simple. To begin with, it’s impossible to say whether or not anyone in particular is going to Hell, so there’s just no epistemologically reliable way to make that claim.

#24 Comment By Siarlys Jenkins On June 28, 2015 @ 3:18 pm

Eamus, I fail to see the slightest contradiction. Could you point one out?

Also, please elucidate on how insisting (as Black and Scalia have both done on their better days) that the constitution means what it says, not what we would like it to mean or what the government really needs it to mean, and that the precise wording of a rather concise document is of some importance, conforms to dictionary definitions of either “pedantic” or “autodidact,” words I have had no particular occasion to explore.

I should also note that in my experience, Viking has sometimes got into an angry huff and expostulated that someone, sometimes me, should stop responding to Viking’s comments, because Viking is upset at what they wrote. Viking has always employed the modifier “please” when doing so, as I recall. And, in time, Viking has generally found occasions to appreciate those same commenters on other issues (me, at least, when discussing SSM, at least.) Given time, these things tend to work themselves out.

#25 Comment By Andrew W On June 28, 2015 @ 3:40 pm

“If I was mistaken, I am sorry; other than that time, you are a really solid contributor in my mind.”

Thanks

#26 Comment By Erin Manning On June 28, 2015 @ 4:11 pm

Eamus, you’re actually making a couple of specific errors (though common ones) here. Since this post is winding down and Rod is going to be approving comments sporadically I don’t think he’ll mind if I try to untangle things a bit.

First of all, the Church doesn’t teach that merely “hearing” the Gospel places on a person the instant and irrevocable demand to accept it. I know there are some Protestants that make this error–they quite literally believe that if you read aloud from, say, the Gospel of Mark to a Hindu for 15 minutes, and tell them a bit about Jesus, and the Hindu doesn’t instantly beg to be baptized, it’s too late for him (and I don’t mean to pick on the Hindus; I know someone who works with a former Hindu/now Christian who sincerely grieves that his parents are, in his mind, now damned because when he tried to tell them about Jesus and his own conversion to Christianity their reaction was along the lines of, “That’s nice, dear, but don’t bother us with it.”).

Rather, the Church uses words about people accepting the Gospel that imply agency: a person must receive the Gospel, he must not only hear it but believe it and be prepared to be transformed by it, and so on. Conversion can’t be coerced, and the free will of the person to accept the Gospel is not to be squashed.

This is because the Gospel, that is, the Good News of the salvation of all men, is a message for each individual person and contains within it that individual call. The potential believer’s freedom not merely to hear the message of salvation but to ponder it, question it, etc. is to be respected even as the missionary hopes the person will ultimately come to believe.

Now, if we can respect each person’s timetable and reception and so forth when it comes to the Gospel, why do we insist that our religious teachings about marriage be important to society?–that, at least, seems to me to be your second question, and your second error.

The reason it is an error is because, as Siarlys Jenkins and many others have argued here on this blog many times before, the idea that marriage is comprised of one man and one woman is not specific to any religious creed. It is not like Catholics trying to make it illegal to sell meat on Fridays, or Muslims trying to make it illegal to buy bacon, or Jewish people campaigning against surf ’n turf offerings in restaurants. Rather, the idea that marriage is a word that describes a union between a man and a woman, and ONLY that union, is a human one, not a religious one.

In fact, you could make a good case that the religion of secularism has created this thing called “gay marriage” and has imposed it on the whole nation regardless of the consequences because secularists really do believe that there is no difference, none at all, between the union of a man and a woman and the unions of two men or two women. The whole idea of marriage in America has become, in a single weekend, “A legal union between any two people for no apparent reason, to last no apparent length of time, and with no specific duties or responsibilities of the parties except to sign up at a courthouse, at which point they will be given tax benefits for no apparent reason in a way that is inherently unjust and discriminatory against single people.” When Canada enacted gay “marriage,” they immediately changed every single mention of a child’s “natural parents” in the law to the child’s “legal parents,” because gay couples cannot be a child’s natural parents and thus the whole idea of natural parenthood had to be scrubbed from the laws of the land.

As a Catholic, I oppose many modern perversions of marriage: divorce, contraception, premarital cohabitation, and now gay “marriage.” I oppose these things on both religious and secular grounds, but I don’t expect all of society to wake up tomorrow with a full understanding of Church teaching on marriage and a deep respect and appreciation for its philosophical and theological underpinnings. Rather, I look at society and see the visible and growing harms done by perverting marriage so that, as of Friday, it quite literally no longer means anything at all. Things are going to get much, much worse, especially for children. But nobody who supports gay “marriage” can, by definition, care about children, because nobody who supports gay “marriage” can believe that marriage and children are actually connected in some way.

#27 Comment By Eamus Catuli On June 28, 2015 @ 6:34 pm

Patrick, I hear you, and I’m happy to see trads take a relatively moderate line. But please do read Turmarion’s comment, immediately following yours, if you haven’t already. He knows the history much better than I do, and he seems to be explaining how we reached the point — in recent times, roughly just over the past half-century — where even the “agnry trads” among us, like Erin, take a mulligan when it comes to the Hell question as regards Jews and other good, conservative, God-fearing people. Thus, for instance, your comment:

Non-Christian religious obviously merit damnation for idolatry under the circumstance of having rejected Christ, but, but, but: only God could possibly know the scope of the person’s actual knowledge of and actual rejection of Christ and His Church. Which is a large disgorgement to the general rule, making it absolutely possible for non-Christians to be saved (as cited in the Catechism).

That “but, but, but” is what we might call “the Post-Vatican II Stutter,” if Turmarion’s analysis is correct. Historically, Catholics — and many conservative Protestants — were way, way less reticent about these matters than you’re being. And as Turmarion says (I can’t stress enough that you need to read his comment), the issue arises because the trads get all worked up over 2% or so of the population getting gay-married — they claimi this is a major threat to civilization — yet they seem pretty cool with 20% or more telling Christ Himself to go take a hike. That just doesn’t seem to make a whole lot of sense.

@Rob G, appreciate your thoughts, but what I recall hearing when I’ve raised questions like this before aren’t answers but various dodges and evasions. If I’ve been given an actually good answer and forgotten it, well, bear with me, I’m an absent-minded professor — ever more so, it seems, with each passing year. 🙂

#28 Comment By Patrick On June 28, 2015 @ 6:39 pm

@ Tumarion:

“If you actually do the heavy lifting and read the documents, there was a sharp shift in the 1960’s away from the view that almost all non-Catholics, even other Christians, were ipso facto damned…”

The Baltimore catechism (1891) states:

“509. Are all bound to belong to the Church?

A. All are bound to belong to the Church, and he who knows the Church to be the true Church and remains out of it cannot be saved.”

The current catechism states:

“846: …Basing itself on Scripture and Tradition, the Council teaches that the Church, a pilgrim now on earth, is necessary for salvation: the one Christ is the mediator and the way of salvation; he is present to us in his body which is the Church. He himself explicitly asserted the necessity of faith and Baptism, and thereby affirmed at the same time the necessity of the Church which men enter through Baptism as through a door. Hence they could not be saved who, knowing that the Catholic Church was founded as necessary by God through Christ, would refuse either to enter it or to remain in it.”

In brief, both catechisms state people who know the Catholic Church is the one true church and remain out of it cannot be saved, which Erin wrote earlier. The current catechism isn’t a departure from the Baltimore catechism on this point, in other words. (Glad you did the “heavy lifting” to read the documents.)

#29 Comment By Eamus Catuli On June 28, 2015 @ 6:45 pm

Siarlys, I copied out Justice Black’s resume in full because I think the legislative history itself is a better guide to the original intentions of the 14th Amendment than either your opinions or mine. You wanted to get down into the weeds; OK, there’s some weeds for you.

On sober reflection, I honestly don’t know whether the 14th Amendment compels SSM. I can see arguments both ways. Turns out, though, that for various contingent and sometimes bizarre historical reasons, one Anthony Kennedy of Sacramento, California, had the final say on this, and he says it does. So I guess it does. I have nothing to add to that.

#30 Comment By Michael Guarino On June 28, 2015 @ 7:40 pm

@AndrewW

“If I was mistaken, I am sorry; other than that time, you are a really solid contributor in my mind.”

Thanks

Wait, are you and VikingLS the same person?

#31 Comment By Eamus Catuli On June 28, 2015 @ 7:45 pm

Also, please elucidate on how [stuff] conforms to dictionary definitions of either “pedantic” or “autodidact”….

Siarlys, you know who asks for “elucidations” of words based on dictionary definitions? Pedantic autodidacts. 🙂

#32 Comment By The Marrying Kind On June 28, 2015 @ 9:19 pm

My opposition to SSM is not in the least “religious”. And it is gross presumption on Justice Kennedy’s part, amounting to calculated insult, to imply that only the religious are permitted to object and act on their objections to people of the same sex “marrying” each other.

Opponents of the Court’s recent extra-constitutional experiments – religious and non-religious alike – need to elect a government that can use the appointment or impeachment processes to redress the imbalances and excesses of the Supreme Court and more generally work to restore constitutional government.

#33 Comment By Franklin Evans On June 29, 2015 @ 11:29 am

Isadore:

I’m willing to read and ponder your evidential support for my slandering “dead Christians”. In the meantime…

The quotes below have footnote marks removed and do not preserve their links. Go to the pages for those.

[4].

Everson v. Board of Education, 330 U.S. 1 (1947) was a landmark decision of the United States Supreme Court which applied the Establishment Clause in the country’s Bill of Rights to State law. Prior to this decision the First Amendment words, “Congress shall make no law respecting an establishment of religion”[3] imposed limits only on the federal government, while many states continued to grant certain religious denominations legislative or effective privileges.[4] This was the first Supreme Court case incorporating the Establishment Clause of the First Amendment as binding upon the states through the Due Process Clause of the Fourteenth Amendment.

[5].

[6].

This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective, and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra, at 164; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342. Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. Most of them did soon provide similar constitutional protections for religious liberty. But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups.

Tell me, Isadore, which of those states that passed laws with the sole purpose of discriminating against non-Christians or the “wrong” Christians (or both) were not politically dominated by Christians?

Finally, please provide justification of any kind that Christians have the right to legally discriminate in that fashion.

That’s the de jure part. The de facto part must remain anecdotal. I grew up in just such a municipality in a state that has had no established religion since its founding, Pennsylvania. It permits me to beg the further question: my experience was not unique. One can find similar stories all over the U.S. How is my reporting my experience slanderous?

#34 Comment By Franklin Evans On June 29, 2015 @ 11:36 am

Isadore, as for my pledge to protect Christians from persecution of any kind… go pound sand. I neither request nor depend on your trust of my word.

I’ve spent over 40 years reading as Christians on [multiple] forum regularly spent 2-3 paragraphs slandering [my] religious cohorts or ancestors… without a single one of them offering anything remotely like “But hey, I’ll defend you if needed.” Indeed, they frequently offered (in so many words, not expicitly enough to prompt me to report them to law enforcement) to hunt me down. I am, after all, an evil minion of Satan to them. Secular law be damned…

#35 Comment By David C On June 29, 2015 @ 1:21 pm

Scalia says: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

I find it impossible to take Scalia’s concern for democracy seriously when a mere 15 years ago he was part of the unelected committee of nine that decided it was unconstitutional to bother to count the votes in a presidential election.

#36 Comment By Patrick On June 30, 2015 @ 12:19 am

@ Eamus Catuli:

“…is what we might call “the Post-Vatican II Stutter,” if Turmarion’s analysis is correct.”

And Baltimore catechism (Vatican I) uses the exact same phrasing as Erin Manning and the current catechism. On that particular point, the Church has only “shown it’s reasoning”, as it were, which is the main difference between the Baltimore catechism and the VII catechism. Not to be rude, but it would help if either of you were familiar with the catechism before saying something like, “Catholics used to be allowed to buy pagan babies” or “Catholics couldn’t do their laundry on Tuesday” or “Catholics eat their dinner upside down”. As simple look at the Baltimore catechism will show you *exactly* what the official Church teaching was then (not as good as “hearing tales of Catholics drinking their own urine”, with the advantage of being accurate.)

By the way, I attend the Tridentine Mass in Latin and doubt that I would set foot in a Protestant eccelsial community (it’s not a “church”), so the “stutter” is coming from somewhere else.

#37 Comment By Isidore The Farmer On June 30, 2015 @ 7:40 am

Franklin, you are the one that made a very simple statement directed towards Christians about violating the 1st amendment since its inception. You pointed to states and municipalities. The problem for you is that at its inception the 1st amendment was understood to only apply to Congress. So to say that Christians in states and municipalities were directly and, by your tone, intentionally, violating something that wasn’t applied to them is a form of slander, designed to paint them in the absolute worst possible light.

The case you quote was decided in 1948 and the decision was made on the basis of an amendment passed in 1868, well after the inception of the 1st amendment. It’s really very simple.

Secondly, imagine that I made regularl promises to defend you in an audience of people not thoroughly familiar with the full context of American history (and that already have a growing disdain for you and Americans), but before each instance of pledging defense I said, “But you should know Franklin pledges allegiance to a flag that enslaved blacks for about 70 years, slaughtered more native Americans than anyone could imagine, is responsible for dropping the only two atomic bombs ever used on mankind, and invaded multiple countries for years on end.”

I’m guessing that after hearing that defense a few times, you’d grow tired of being painted in the worst possible light and suggest to me that perhaps you could find a stronger defense elsewhere. You might also suggest, after enough times of hearing it, that my defense was doing more harm than good on the intended audience.

You are imposing a 20th and 21st century view of discrimination on earlier centuries. You are holding early American Christians responsible for following the 1st amendment in light of the 14th before it was even passed. Not only is that factually and historically false/unfair, you are doing this in a way that paints them in the worst possible light. Such a thing is a shameful thing to do to the dead, who aren’t here to defend themselves.

Although no Christian may have directly offered you defense using the words I used and you quoted, it is obvious from this very forum that you would have your defenders: Rod, surely for one, Bernie speaks very well of you for two. There are others.

But all that was conveniently forgotten in your last post so that you could again paint Christians in a poor light. It’s sad to observe…

#38 Comment By Franklin Evans On June 30, 2015 @ 10:35 am

Isadore… I must sigh in a complex expression of surrendering to stubbornness and regret, of equal proportion.

Yes, I’m “holding to a standard” from a modern perspective. As Justice Black and others have shown, I’m not alone going back to Madison and Jefferson, a company in which I find some solace for the vast majority of people — not all of whom were Christian, yes, nor to all of whom is it necessary to apply that label, agreed — who took your statement about the (to me, superficial) lack of federal pre-emption as license to do whatever they wanted and were pleased to do.

Timing is critical, to be sure. Hindsight is easily 20-20, no great support for it. I come back to a simple question for you: is that they could do that thing — discriminate on the basis of religion — under laws that offered no recourse to those against whom they discriminated by itself justification for their actions?

I neither desire nor request your trust of my given word. I certainly grow tired of your stubborn insistence of putting thoughts in my mind and words in my mouth. I’ll remind you of two things: first, in the cyber universe, the only valid assumption of silence on any given subject is silence. Second, I am wont to create very long posts (like this one will be), and ascribing to me thoughts and opinions that do not appear in my posts is an invitation to see me hog even more space than I already hog.

In short (ahem): if you want my respect, if you even want bare civility, avoid holding my side of the argument. I’ve earned that respect from Bernie, Rod and others by making an effort to understand what they write, to step back from assumptions and agree that when I make them they are wrong (I find assumptions to be very rarely correct, at least when I make them).

I’ll happily read your direct responses to my direct questions, and make a sincere effort to respond to them respectfully. In that light, it is my sincere perspective that Christians have done a very good job of providing the dark paint you believe I’m using. I’ll break silence on one thing you find important, and assert clearly that most modern Christians of my acquaintance are good people I’m honored to have has neighbors and friends. It’s their leaders, especially the ones most eager for the spotlight, who set out the paint. I’m hardly the only one nor even close to the most active one doing the painting.

#39 Comment By Franklin Evans On June 30, 2015 @ 10:44 am

I normally offer zero respect to having words put in my mouth, but this one is very important, Isadore:

I call myself a patriot. I do so out of an upbringing by survivors of (respectively) the Nazi Holocaust and one of the bloodiest civil wars in modern history (Yugoslavia). They didn’t leave mild to moderate discomfort to head for golden shores. They had their homes, families and cultures destroyed by scorched-earth tactics out of historical hatreds and nationalisms. The U.S. represented an idea and ideal they and their ancestors could only read about.

I am a patriot loyal to the idea and the ideal, and all those who claim that loyalty must prove it. Slavery, the decimation of this continent’s natives, all the rest serve as counterpoints to that proof, and reasons to demand it of our elected officials on a daily basis. I’m not, nor will ever be such an elected official. All I have to offer are those words and one vote.

#40 Comment By Franklin Evans On June 30, 2015 @ 11:16 am

Isadore, one more thing you might want to know about me: I owe my very existence to a Catholic bishop in Zagreb and the denizens of Asti, who risked their lives to save the lives of my mother and her Jewish family. Gratitude is a poor descriptive of my late mother’s and my feelings about them.

#41 Comment By Siarlys Jenkins On June 30, 2015 @ 3:46 pm

Eamus, so glad you have noticed that there are realistic and valid ways to argue that the Fourteenth Amendment does NOT mandate SSM. That was my point. You may or may not have noticed that I have with some complacence noted several times that the recent Supreme Court ruling is good law, and enforceable in all fifty states.

The court could, however, be wrong, as it was in Bowers and Plessy. It remains good law that citizens may point out how and why the court was wrong, until such time as a sufficiently well-grounded case with an actual controversy motivates the court to take another look. You are merely being lazy if you quote one Anthony Kennedy of Sacramento as the Authority to shut down any and all discussion.

Siarlys, you know who asks for “elucidations” of words based on dictionary definitions? Pedantic autodidacts. 🙂

When I use a word, said Eamus Catuli, it means exactly what I choose it to mean.

Elucidation is a good and proper thing to ask for when it is absent. For example, if you want to pile up weeds, you should at least weave them into a discernible pattern, if you wish to provide them with meaning.

#42 Comment By David C On June 30, 2015 @ 6:41 pm

The Marrying Kind says: “And it is gross presumption on Justice Kennedy’s part, amounting to calculated insult, to imply that only the religious are permitted to object and act on their objections to people of the same sex ‘marrying’ each other.”

It would be presumptuous of him to say or imply such a thing. He didn’t. On the contrary:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.

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. The same is true of those who oppose same-sex marriage for other reasons.

#43 Comment By Julien Peter Benney On July 5, 2015 @ 8:28 am

It is a popular conservative myth that “democracy is dying”. In fact, as writers like Hans-Hermann Hoppe in Democracy: The God that Failedand David Harsanyi in The People have Spoken (and They Are Wrong): The Case Against Democracy demonstrate, homosexual marriage, legalised abortion, and crippling debts are an inevitable consequence (excepting in a very few lands with extremely high ratios of flat land and natural resources to population) of what we conventionally call “democracy”.

Hoppe and Harsanyi show that – in contrast to the French Revolution – the American Revolution was radically anti-democratic, arguing for a limited suffrage restricted to landholding males and genuine equality before the law.

Democracy, they show, inevitably succumbs to Main Street’s egalitarian passion, which by nature cannot permit immutable moral standards or distinct gender roles and differences. In democracy (with the exceptions noted previously) moral laws are voted on like everything else, and in practice Hoppe shows democracy favours those who invest least in the future and most in the present – the childless and nonproductive, who can and almost always do vote themselves wealth earned by hard labour or entrepreneurship.