How the Government Is Bulldozing Over Conscience Rights to Secure All the “Rights” Associated with Same-Sex Marriage
Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside.
—Supreme Court Justice Clarence Thomas, in his dissent on the Obergefell ruling—
Your rights end where mine begin.
—Rachel Marsden—
Part 5 is available here.
Last week we began to examine Justice Clarence Thomas’s dissent in Obergefell, the case in which five Supreme Court Justices—a razor-thin majority—struck down the all laws in the United States that limited the definition of marriage to one man and one woman. Thomas’s dissent rests on the solid foundation of the Founders’ perspective on liberty and rights. For your convenience and review, here is the first paragraph of his dissent.
The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787 [when the Constitution of the United States was drafted and sent to the states for ratification], liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it.
Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty.
—Supreme Court Justice Clarence Thomas—
It is helpful here to recall our prior discussion about negative and positive rights. Negative rights are the rights we enjoy because government is restricted from forbidding or hindering personal activity. Positive rights are “rights” that are secured when government intervenes in citizens’ lives to give them resources or to otherwise enable them to do certain things. America’s Founders upheld the former and abhorred the latter, and they were right to do both. Accordingly, they drafted and ratified the Bill of Rights to the US Constitution, which secured foundational rights of citizens through government limitations.
The Founders, you see, believed the number one purpose of government was to protect property. Really, they did—yet we need to understand all they meant when they used the word property. Historian David Barton, his son Tim Barton, and former Texas legislator Rick Green discuss this very issue on the May 17, 2016 broadcast of the radio program WallBuilders Live! The elder Barton first cites numerous examples in which individuals’ rights to speak and act according to their convictions are being trampled—and he points to the release of the 2016 edition of Undeniable: The Survey of Hostility to Religion in America, which documents hundreds of examples in which people have been denied their Constitutional rights as Americans. The three-man broadcast team forcefully demonstrates that this is not the America our Founders established. (For your convenience, the entire program is available at the end of this post.)
Tim Barton: [Founding Father] James Madison said government is instituted to protect property of every sort. So the reason government exists is to protect our property. And there are a whole slew of things that are identified as property. In fact, your money was something that was identified as that, as your own private property. So the government cannot come and take your money. That’s your private property. Well, James Madison said conscience is the most sacred of all property. So the property that was the most sacred, that government is instituted to protect…is your right of conscience.
Government is instituted to protect property of every sort…. Conscience is the most sacred of all property.
—Founding Father James Madison—
David Barton: Now, consider that. The most sacred of all property is conscience, so while we look at a store being robbed, a kid going into a store and shoplifting, we say, get the kid, nail him, he can’t take private property. It’s not his property. It belongs to somebody else. We watch a kid take a baseball bat and whack at somebody else’s car, we say he’s got to pay for the damages; he can’t destroy somebody else’s property. We watch a robber go into a house with a gun; we say he can’t do that; that’s not his property. We yell when the government takes private property. Eminent domain. They can’t do that; they’re not allowed [to do that].
More important than all of that is the government can’t take away from you your right to hear from God, to believe what God told you, and to act on what God said. That’s more important than stopping a robber that comes into your home; protecting that right is more important than stopping a shoplifter; protecting that right is more important than keeping a kid at school from stealing stuff out of your locker or taking your billfold—but we don’t look at it that way. But that’s the way the Founding Fathers looked at it.…The number one purpose for government is to protect property, and the number one property to protect is the rights of conscience. Which means there should be no religious hostility going on—
Rick Green: But it’s happening!
David Barton: and yet we have it now [in abundance].
Conscience rights, therefore, are sacred; and they’re essentially rights to exercise your religious beliefs freely, without hindrance from the government. With the founding of America, especially through the First Amendment to the US Constitution, “government essentially said, Yes, be religious. We will not only tolerate it; we will respect it and we will encourage it. But we cannot take sides or put our thumbs on the scales. But the understanding of this has been lost to many in modern America.”1
Against this historical backdrop, we can better understand Justice Thomas’s dissent, and just how extreme and unconstitutional the Obergefell ruling really is. Thomas expounds eloquently and powerfully on his opening paragraph. He writes,
Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically re- strained, petitioners have been left alone to order their lives as they see fit.
Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney.
Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized.
Thus, same-sex marriage by itself violates the Framers’ concept of liberty and rights. This reality is bad enough, but as we have seen in the year since the Obergefell ruling was issued, enshrining this positive right into the practice of American culture has, more than any other governmental action, strengthened the movement for a whole host of additional counterfeit rights—positive rights that trample on the negative—and authentic—rights of ordinary citizens.
This truth was not lost on Justice Thomas (citations have been omitted to enhance readability).
Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect.…
Numerous amici [legal briefs advising this Court]—even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” In our society, marriage is not simply a governmental institution; it is a religious institution as well. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.
The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.
Writing for the majority of justices in Obergefell, Justice Anthony Kennedy had said,
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.
What?! Advocate with utmost, sincere conviction?! Teach the principles that are so fulfilling and so central to their lives and faiths?! The “proper protection” afforded in the First Amendment clearly allows citizens to do things far more substantive than these! Justice Thomas continued in his dissent, poking holes in Kennedy’s weak view of conscience rights and religious liberty.
Religious liberty is about more than just the protection for “religious organizations and persons…as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.
On a side note, we need to be aware that it isn’t just the Supreme Court that is refusing to wholeheartedly affirm freedom of religion. Last year in New York City at the sixth annual Women in The World Summit, Hillary Clinton was talking about abortion when she declared that “deep-seated cultural codes, religious beliefs and structural biases have to be changed” so women can have increased access to “reproductive health care.” One cannot dismiss the idea she feels the same way about convictions that homosexuality is a sin, because she also said, “We move forward when gay and transgendered women are embraced as our colleagues and friends, not fired from their jobs because of who they love.”
Unfortunately, we do not have to look far to find a growing number of examples of what Justice Thomas called “civil restraints…upon religious practice.” Let’s start with this video prepared by Alliance Defending Freedom (ADF).
Erick Erickson and Bill Blankschaen highlight a great many more examples in their book, You Will Be Made to Care: The War on Faith, Family, and Your Freedom to Believe. In the first chapter alone, they tell the stories of
- Atlanta Fire Chief Kelvin Cochran (video);
- Jonathan and Elaine Huguenin, photographer (video);
- Catholic Charities of Boston;
- Aaron and Melissa Klein, bakers (video, video);
- Jack Phillips, baker (video);
- Barronelle Stutzman, florist (video);
- Jews Offering New Alternatives for Healing (JONAH) (video);
- Dick and Betty Odgaard, venue operators (video);
- the Ocean Grove Camp Meeting Association, a Methodist ministry, in Ocean Grove, New Jersey (video);
- Phyllis Young of Aloha Bed and Breakfast;
- Jim and Mary O’Reilly of the Wildflower Inn in Vermont;
- Jennifer Keeton, student at Augusta State University in Georgia;
- Angela McCaskill of Gallaudet University in Maryland;
- the chapter of Inter-Varsity Christian Fellowship on the campus of Vanderbilt University in Nashville, Tennessee;
- the owner of Ralph’s Thriftway in Washington State and two of the store’s pharmacists;
- the Christian Legal Society on the campus of the University of California at Hastings; and
- the Evangelical Child and Family Agency in Illinois.2
The authors also cite two examples with encouraging outcomes, situations involving
- the Christian-owned t-shirt company in Kentucky called Hands On Originals; and
- Julia Ward, a student at Eastern Michigan University.
Although the above list is long, it isn’t exhaustive. Moreover, defenders of religious liberty continue to join the front lines, even since the recent publication of You Will Be Made to Care on February 22 of this year. Read here and here about Brush and Nib Studio and its owners, Joanna Duka and Breanna Kossi. Thankfully, Alliance Defending Freedom works with clients in proactive strategies as well as defensive ones. In this particular case, ADF is standing in opposition to an unjust Phoenix, Arizona law before it is used against these talented business owners.
Truly, these are men, women, and ministries of whom the world is not worthy (see Heb. 11:37-38). We can thank God for their stands!
Nearly all of these cases are about sex. Erickson and Blankschaen are forthright in their assessment:
Progressives are rabidly committed to expanding the freedom to express oneself sexually without consequences and without criticism. In fact, their right to feel good about their sexual expression trumps your right to express your beliefs about it. You are required to approve and even help them celebrate—or you can lose your job, your business, your chosen career, your home, and even your dog. The sexual revolution ideology of the 1960s means that personal feelings outweigh the transhistorical truths that have fostered the flourishing of all humanity.…4
But where are the actual examples of attacks on the rights of gays—to earn a living, to own a business, to finish a college degree, to create and maintain organizations defined by their beliefs, or to work as a pharmacist, baker, or photographer? No sexual identity, no amount or degree of even the most “transgressive” sexual expression makes you unfit for those rights in America today. No right-wing Christian zealot is trying to take them away. The Left cries “discrimination: against homosexuals and makes wild comparisons to Jim Crow Laws—a logically incoherent comparison that insults the great civil rights leaders of the twentieth century. But no one can point to any real incident in which a person has been denied service because of his or her sexual orientation. Refusing to help celebrate a gay wedding or to provide a bed in one’s own home for lesbian sex is simply not the same things as discrimination against persons. It’s simply a refusal to be drafted onto the opposing side. An objection to being made to care.5
All of this is, of course, un-American. It’s even anti-American. Next week, we’ll elaborate on this point. We’ll list several specific ways same-sex marriage and the “rights” that are flowing from it are effectively working against genuine liberty and other American ideals—how they are pushing our nation toward tyranny. In one sense our discussion will be a review, but in another, it will help us put a “handle” on where we are as a nation.
If we understand and heed the warning signs, perhaps we can change course.
Part 7 is available here.
Copyright © 2016 by B. Nathaniel Sullivan. All Rights Reserved.
Websites and videos in this article have been cited for information purposes only. No citation should be construed as an endorsement.
top image: Freedom of Worship by Norman Rockwell, 1943
WallBuilders Live! broadcast, May 17, 2016
Notes:
1Eric Metaxas, If You Can Keep It: The Forgotten Promise of American Liberty, (New York, Viking, 2016), 73.
2Erick Erickson and Bill Blankschaen, (2016-02-22). You Will Be Made to Care: The War on Faith, Family, and Your Freedom to Believe (Kindle Locations 136-314). Regnery Publishing. Kindle Edition.
3Ibid., (Kindle Locations 323-330).
4Ibid., (Kindle Locations 317-320).
5Ibid., (Kindle Locations 332-339).
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