Al Mohler, Pastor and President of the Southern Baptist Theological Seminary, respected leader in the Gospel Coalition gathers his thoughts on the momentous decision with regard to same-sex marriage handed down by the Supreme Court of the United States yesterday.
The following is a transcript of part of his summation. The entire message may be heard in the audio at the bottom of this post:
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 other 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, in 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 14th 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 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 judgement”
The Chief Justice openly accused the majority in this case of imposing their moral judgement not any informed rational or legal judgement 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: “But do not celebrate the Constitution- it had nothing to do with it, I respectfully dissent”At this point in the recorded audio, I could not help but remember a post I had written some weeks ago about a decision handed down by the Lord Chief Justice in the United Kingdom which had similarities to what was happening here. In that instance the counterpart to the U.S. supreme court Lord Chief Justice Thomas of Cwmgiedd (pictured) had handed down a remprimand to a magistrate, and ordered him to be "re-educated" (shades of the Gulag?) for "being influenced by his religious beliefs".
The irony lies in the fact that in the case of the United States Supreme court this Chief Justice made essentially the same claim about the other Judges who formed the majority and thus ruled the day with regard to same sex marriage. According to him, their "moral judgement" had informed their decision, not any rule of law or legal argument and hence his observation that their decision was in point of fact "an act of will- not a legal judgement". In short their worldview (probably philosophical naturalism) had influenced their decision rather than any legal framework to which they should have defferred. The myth of secular neutrality is thus clearly observable in both instances.
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 the 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 judgement 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 five- four 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 judgement for the Constitution of the United States and for the operation of a Representative Constitutional Democracy. Whereas just yesterday in the Obergefell 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.” He goes on to write: “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 judgement.” 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 are 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 judgement 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 Jnr. 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 in 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.”
He then says:” 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” wrote Justice Thomas,”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.” Justice Thomas then wrote: “The majority appears unmoved by that inevitability, it makes only a weak gesture towards religious liberty in a single paragraph”