By now the SCOTUS (Supreme Court of the United States) ruling in Obergefell v. Hodges to make same-sex marriage a constitutional right has made a few rounds in the news. Some will be satisfied with the ruling, but there are others like Mark Oppenheimer of the New York Times who immediately began calling for religious organizations to lose their tax exempt status. As a pastor who also works to provide for my family, I’d rather keep more of my hard earned money than send it to Washington. And by the way, people keeping their own money is not a government subsidy, though Oppenheimer uses that language. But I don’t give to get a tax break. My giving, like most Christians I know, is out of gratitude and recognition of what the Lord Jesus Christ has done in our own lives. So while the tax break on charitable giving is nice, it doesn’t affect our giving.
But charitable donations are not why I’m writing this. This decision is a turning point in our history as a nation further dismantling our governmental structure. Here are the problems I believe this ruling poses.
The Court is now an unelected legislature.
Several States have opted for gay marriage licensure which was their right to do, but now it is not their right to do or not to do. The court is authorized to exercise “neither force nor will but merely judgment,” as Roberts quoted the Federalist No. 78, p. 465. This is a case that should never have made it to the Supreme Court. The constitution recognized that this was an individual State issue and not a federal one. The majority decision stepped outside of the boundaries of saying what the law is into saying what the law should be. That is not the duty of an unelected judge.
The Court is now a creator of rights.
The role of the Court is to apply law. Our country was founded on, among other things, the free exercise of religion. The Constitution is a document that provides governing principles for people who disagree. It is not a document that seeks to conform all people into one image, but to provide unity for a diverse group of people who remain diverse. Justice Kennedy in the majority decision did say,
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.
But as it’s been said, a government that can create rights can also take them away. In this decision, we aren’t even talking about elected officials creating rights, but we are talking about unelected judges creating and taking away rights of citizens.
The Court can redefine relationships as needed.
The opinion of the Court redefines a relationship that did not originate with the Court. The relationship of marriage was not dreamed up by guys in wigs for the purpose of excluding some element of society. Marriage is a natural relationship that was created by God; as all relationships were. The Lord Jesus Christ said, For this cause shall a man leave father and mother, and shall cleave to his wife: and they twain shall be one flesh (Matthew 19:5). The problem with removing the Creator of marriage out of the equation is that opens the door for anything to be defined as a marriage. It removes the value and purpose of marriage as we see in the Obergefell v. Hodges case; marriage was reduced to financial benefits. But why limit a marriage to two people now that it is being redefined? Why not multiple people? Why not include animals? Why not include children? If you remove the Creator and redefine marriage then where do you stop and why? The answer is that you have no more basis to stop redefining marriage: marriage is anything and marriage is nothing.
The Court has made the gospel a political issue and put its stamp of approval on Sodomy.
The other day I invited a man to church and gave him a Bible. He volunteered to me that he was gay and told me he always felt judged in church. I told him I often do too and if the judgements were coming from a preacher preaching the Bible it’s always been good for me. As a pastor preparing sermons the Lord convicts me of sin in my life and things that need changing, and the Lord does that for my own good. A holy God who authored a Holy Bible accompanied by his Holy Spirit is trying to make holy changes in our lives.
We talked about the gospel of the Lord Jesus Christ and how Jesus Christ had taken away my sin and offered to take away his sin as he offers the same for anyone who will receive him as Savior. As sinners without Jesus Christ we all die. Only Jesus Christ said, “I am the resurrection and the life” and then proved it by leaving an empty tomb behind. We talked about lots of people feeling uncomfortable in church. If you like to gossip, when God speaks against gossip it ought to make you feel uncomfortable. If you like to lie and the preacher preaches from God’s words about lying then you would be uncomfortable. Conviction or discomfort are not necessarily bad things.
One nice thing about our conversation is that none of it entertained politics, but now it will have to. The words of God are clear about Sodomy from Genesis 19 (Sodom and Gomorrah) of which it is said in Jude 7, Even as Sodom and Gomorrah, and the cities about them in like manner, giving themselves over to fornication, and going after strange flesh, are set forth for an example, suffering the vengeance of eternal fire. And again in Romans 1:26-27 For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature: and likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompense of their error which was meet.
For these reasons I side with the dissenting judges against those who decree unrighteousness.
The Court’s history of rulings on “free exercise”
The trouble most churches concern themselves with now is the ability to freely exercise their Biblically held beliefs at some point in the future. The “free exercise clause” reads as follows, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” and technically congress didn’t I suppose. The history of this “free exercise clause” may give some indication of the future. Of course all of this is null and void with a Supreme Court that makes its own laws.
In 1879, Reynolds v. United States, a case about polygamy, the ruling stated: “Congress cannot pass a law for the government of the Territory which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation.” But of federal territorial laws, the Court said: “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.”
In the 1960’s, Chief Justice Earl Warren introduced the phrase “compelling interest” that gave the Court authority over certain religious exercise based on the state’s ability to show a “compelling interest.”
The “compelling interest” doctrine was applied in 1990 in the Employment Division v. Smith case. The decision stated as long as a law does not target a particular religious practice, it does not violate the Free Exercise Clause. An example would be targeting a church who distributes tracts with a littering law, but not applying that littering law to anyone else. The Supreme Court says that would be unconstitutional.
The Religious Freedom Restoration Act (RFRA) was passed in 1993 which sought to restore the “compelling interest” standard. According to the court’s ruling in Gonzales v. UDV in 2006, RFRA remains applicable to federal statutes, which must therefore still meet the “compelling interest” standard in free exercise cases.