{"id":6384,"date":"2016-10-26T00:00:00","date_gmt":"2016-10-26T00:00:00","guid":{"rendered":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2016\/10\/26\/liberty-and-justice-for-all1\/"},"modified":"2016-10-26T00:00:00","modified_gmt":"2016-10-26T00:00:00","slug":"liberty-and-justice-for-all1","status":"publish","type":"post","link":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2016\/10\/26\/liberty-and-justice-for-all1\/","title":{"rendered":"Liberty and Justice for All"},"content":{"rendered":"

\n\tIt\u2019s been said that \u201cthe Constitution amounts to a prescription for political struggle and an invitation for an ongoing debate about enduring
\n\tconstitutional principles.\u201d1 <\/sup>Never has this been truer than in the intense debate over same-sex marriage. The first round was noneventful, but
\n\tlately the topic has exploded with activity:<\/p>\n


\n\tROUND ONE (1776-1992):<\/strong>\n\t<\/p>\n

\n\tFirst same-sex marriage case—Baker v. Nelson<\/em>, 409 U.S. 810 (1972)—was dismissed. Not another case was brought for 20 years.\n\t<\/p>\n


\n\tROUND TWO (1993-2011):<\/strong>\n\t<\/p>\n

\n\tThe first court to see a valid constitutional question for same-sex marriage came in with Baehr v. Lewin<\/em>.2<\/sup> November 2003: the Supreme
\n\tCourt of Massachusetts ruled a ban on same-sex marriage unconstitutional, paving the way for same-sex marriage. Connecticut, Maine, New Hampshire, the
\n\tDistrict of Columbia, and Vermont followed in 2009. New York adopted same-sex marriages in 2011.
\n\t
\n\t\t3<\/sup><\/p>\n

\n\t Congress passed the Defense of Marriage Act (DOMA), signed by President Bill Clinton in 1996. California voters in 2008 approved Proposition 8,
\n\ttemporarily stopping court-ordered same-sex marriages. Thirty-one states had constitutional bans on same-sex marriages.
\n\t
\n\t\t4<\/sup><\/p>\n


\n\tROUND THREE (2012-2015):<\/strong>\n\t<\/p>\n

\n\tThe U.S. Supreme Court, by a 5-4 decision, gave same-sex marriage advocates three major victories. In 2012 the Ninth U.S. Circuit Court of Appeals upheld
\n\tthe district court\u2019s decision that California\u2019s Proposition 8 was unconstitutional.5 <\/sup>On June 26, 2013, the Supreme Court struck down the federal
\n\tDefense of Marriage Act (DOMA).6<\/sup> By 2015 federal courts had struck down bans on same-sex marriage in the majority of states.
\n\t
\n\t\t7<\/sup><\/p>\n

\n\tTwo years after the above casesthe Supreme Court in Obergefell v. Hodges<\/em>, 576 U.S. ___ (2015), issued the landmark United States Supreme
\n\tCourt decision in which the Court held 5-4 that the fundamental right to marry is guaranteed to same-sex couples by both the due process clause and the
\n\tequal protection clause of the Fourteenth Amendment to the United States Constitution.\n\t<\/p>\n


\n\tROUND FOUR<\/strong>\n\t<\/p>\n

\n\tIs the debate over? Hardly. Both the majority and minority opinions of the Supreme Court indicate the future battleground: Will religion, society, and
\n\tindividuals be forced to recognize same-sex marriage as a matter of public policy or suffer penalties?\n\t<\/p>\n

\n\tChief Justice John Roberts in his dissent points out the hard questions yet to be answered: \u201cHard questions arise when people of faith exercise religion in
\n\tways 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
\n\topposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.
\n\t
\n\t\tIndeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed
\n\t\tsame-sex marriage.\u201d (See transcript of oral argument on question 1, at pp. 36-38
\n\t<\/em>
\n\t[italics originals].) There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no
\n\tcomfort in the treatment they receive from the majority today.
\n\t
\n\t\t8<\/sup><\/p>\n


\n\tBALANCING THE INTERESTS<\/strong>\n\t<\/p>\n

\n\tHow should the rights of same-sex marriage and religious rights be balanced? Paul G. Kauper, law professor at the University of Michigan for 38 years and
\n\tconstitutional law specialist, states: \u201cNo definite rules can be prescribed respecting permissible restrictions on religious liberty and . . . the court
\n\tarrives at a decision by the pragmatic process of examining the burdens placed on that liberty and the nature and importance of the countervailing public
\n\tinterests that are advanced to justify the restriction. The appraisal and balancing of these conflicting interests is a function of the judicial process,
\n\tand the end result is a matter of subjective judgment.
\n\t
\n\t\t9<\/sup><\/p>\n

\n\tReligious liberty rights and same-sex marriage rights must be weighed against each other. The Supreme Court has ruled avoiding racial discrimination in
\n\teducation. Therefore same-sex marriage rights have to be compared to the 150-year legal history and stare decisis of racial discrimination.\n\t<\/p>\n


\n\tRELIGIOUS LIBERTY RIGHTS<\/strong>\n\t<\/p>\n

\n\tFor centuries church and state were combined, resulting in persecution for minority religions. A no-holds-barred struggle took place over which would be
\n\tthe established religion. A new concept was established by the U.S. Constitution. The First Amendment reads \u201cCongress shall make no law respecting an
\n\testablishment of religion, or prohibiting the free exercise thereof.\u201d\n\t<\/p>\n

\n\tThe first principle was that no church or group of churches become the established religion. Nor was \u201catheistic or agnostic philosophy\u201d to become the
\n\testablished belief. Instead, government and religion would flourish best by being separate, with neither controlling the rightful sphere of the other. The
\n\t\u201cfree exercise of religion\u201d was to be our first and most important right.\n\t<\/p>\n

\n\tMarriage is a unique institution with both civil and religious rights and responsibilities. The commitment made is considered sacred in most religious
\n\tcommunities. In changing the definition of marriage, some want to change basic Judeo-Christian beliefs. For example, John Spong, Episcopal bishop of
\n\tNewark, New Jersey, has said, \u201cThe fact remains that these so-called laws of God, which God was supposed to have written on tablets of stone, or the
\n\texcessive claims made for Holy Scripture in general, which involve the assertion that the Bible is somehow \u2018the inerrant word of God,\u2019 are today
\n\tindefensible, regardless of who utters those claims or any variation on them.\u201d10<\/sup>\n\t<\/p>\n

\n\tWhile many same-sex couples want a marriage similar to a traditional marriage, other homosexuals do not. Law professor Nancy D. Polikoff states, \u201cThe
\n\tdesire to marry in the lesbian and gay community is an attempt to mimic the worst of mainstream society, an effort to fit into an inherently problematic
\n\tinstitution that betrays the promise of both lesbian and gay liberation and radical feminism.\u201d
\n\t
\n\t\t11<\/sup><\/p>\n

\n\tThe majority in Obergefell <\/em>recognized the enduring nature of one man, one woman marriages: \u201cThe lifelong union of a man and a woman always has
\n\tpromised nobility and dignity to all persons, without regard to their station in life.\u201d12<\/sup> Then the bare majority go on to redefine public policy
\nso that gender must be deleted from the definition of marriage. How far can the new public policy override religious freedom? The Yoder<\/em> case (\tWisconsin v. Yoder<\/em>) said: \u201cOnly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free
\n\texercise of religion.\u201d13<\/sup> Many cases and the Religious Freedom Restoration Act (RFRA) recognize the importance of preserving freedom of religion
\n\tand making reasonable accommodation.\n\t<\/p>\n


\n\tRIGHTS AGAINST RACIAL DISCRIMINATION<\/strong>\n\t<\/p>\n

\n\tSame-sex marriage and racial discrimination were compared in Obergefell<\/em>. Justice Anthony Kennedy said that denial of either interracial marriage or
\n\tsame-sex marriage deprived \u201cone of the vital personal rights essential to the orderly pursuit of happiness by free men.\u201d14<\/sup>\n\t<\/p>\n

<\/sup><\/p>\n

\n\tChief Justice Roberts drew a sharp contrast between the Loving <\/em>case (Loving v. Virginia<\/em>) and Obergefell<\/em>: \u201cRemoving racial barriers to
\n\tmarriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution
\n\tof \u2018marriage\u2019 discussed in every one of these cases \u2018presumed a relationship involving opposite-sex partners.\u2019\u201d15<\/sup>\n\t<\/p>\n

\n\tJustice Samuel Alito added in dissent: \u201c[This case] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its
\n\topinion, the majority compares traditional marriage laws to laws that denied equal treatment for African Americans and women.\u201d
\n\t
\n\t\t16<\/sup><\/p>\n

\n\tSame-sex marriage rights differ from
\n\t
\n\tthe long history of racial discrimination.\n\t<\/p>\n

\n\tJustice Alito stated: \u201cIt is beyond dispute that the right to same-sex marriage is not deeply rooted in this nation\u2019s history and tradition. In this
\n\tcountry, no state permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples
\n\tviolated the state constitution.\u201d
\n\t
\n\t\t17<\/sup><\/p>\n


\n\t The U.S. History of Racial Discrimination<\/strong>\n\t<\/p>\n

\n\t After the Civil War three constitutional amendments were passed, including the abolition of slavery, having privileges and immunities of citizenship, due
\n\tprocess and equal protection of laws, and voting rights.\n\t<\/p>\n

\n\t Congress considered additional measures necessary, passing the 1866, 1870, 1871, and 1875 acts to combat racial discrimination.\n\t<\/p>\n

\n\t Courts restricted racial rights: \u201cIt is a matter of well-documented history that civil rights legislation passed shortly after the Civil War to combat
\n\t\u2018Black Codes\u2019. . . was, for the most part, strictly construed through a series of cases which all but eradicated the original congressional intent.\u201d
\n\t
\n\t\t18<\/sup><\/p>\n

\n\t The Supreme Court endorsed segregation with inconsistent rationales. Plessy v. Ferguson<\/em> in 1896 upheld segregation because it accorded with the
\n\t\u201cestablished usages, customs and traditions of the people.\u201d In 1908 in Berea College v. Kentucky <\/em>19 <\/sup>the Supreme Court upheld the forcing
\n\tof college students to separate. Justice John M. Harlan was the lone dissenter in both Plessy<\/em> and
\n\t
\n\t\tBerea College.<\/em><\/p>\n

\n\tThe Supreme Court in a 9-0 decision reversed its separate-but-equal doctrine: Brown v. Board of Education<\/em>, 347 U. S. 74 S. Ct. 686 (1954), stated:
\n\t\u201cWe conclude that, in the field of public education, the doctrine of \u2018separate but equal\u2019 has no place. Separate educational facilities are inherently
\n\tunequal.\u201d Ten years later the 1964 Civil Rights Act was passed.\n\t<\/p>\n

\n\tTax-exempt Status and Private and Religious Schools That Racially Discriminate\n\t<\/p>\n

\n\tRacial discrimination in education became one of those interests \u201cof the highest order\u201d that trumped even freedom of religion. The cost of the Civil War
\nand the three constitutional amendments thereafter gave the courts grounds to deny tax exemption to racially segregated schools in the\tGreen v. Connally <\/em>(1971): \u201cThere is a compelling as well as a reasonable government interest in the interdiction of racial discrimination which
\n\tstands on highest constitutional ground, taking into account the provisions and penumbra of the amendments passed in the wake of the Civil War. That
\n\tgovernment interest is dominant over other constitutional interests to the extent that there is complete and unavoidable conflict.\u201d
\n\t
\n\t\t20<\/sup><\/p>\n

\n\tThe Bob Jones<\/em> case (Bob Jones University v. United States<\/em>) withdrew the tax-exempt status of that Christian college. In a footnote the Court
\n\tsaid, \u201cWe deal here only with religious schools—not with churches or other purely religious institutions.\u201d21<\/sup> So churches should be allowed to
\n\tmake their own decisions on same-sex weddings and membership.\n\t<\/p>\n

\n\tBut the rationale of Bob Jones<\/em> is troubling: \u201cAn institution seeking tax-exempt status must serve a public purpose and not be contrary to
\n\testablished public policy.\u201d22<\/sup> The 1983 Supreme Court Review <\/em>of the University of Chicago Law School stated: \u201cThere were satisfactory
\n\treasons for allowing the Bob Jones University tax exemption to be withdrawn. But these were not the Supreme Court\u2019s reasons. It had others that will not
\n\twithstand scrutiny and that will haunt and discomfit future cases.\u201d23<\/sup> Bob Jones<\/em> should not be read as indicating that every public policy
\n\ttrumps religious freedom, but as Yoder<\/em> stated: \u201cOnly those interests of the highest order and those not otherwise served.\u201d\n\t<\/p>\n


\n\tSame\u2013Sex Marriage Rights<\/strong>\n\t<\/p>\n

\nPutting the issue of Round Four into focus:\tIs Same-Sex Marriage one of those \u201cinterests of the highest order\u201d that can overbalance religious freedom rights?<\/em> The majority states: \u201cThe right to
\n\tmarry is a fundamental right inherent in the liberty of the person, and under the due process and equal protection clauses of the Fourteenth Amendment,
\n\tcouples of the same sex may not be deprived of that right and that liberty.24<\/sup>\n\t<\/p>\n

\n\tChief Justice Roberts in dissent does not see any such right or interest: \u201cCelebrate the achievement of a desired goal. Celebrate the opportunity for a new
\nexpression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.\u201d\t25<\/sup> What a difference in this 5-4 decision and the 9-0 decision of Brown<\/em>. Brown\u2019s<\/em> reversal of segregation in schools had the solid
\n\tfooting of three constitutional amendments, and the congressional laws of 1866, 1870, 1871, and 1875, all specifically aimed at racial discrimination.\n\t<\/p>\n

\n\tSolicitor General Donald B. Verrilli, Jr.\u2019s statement on removing tax-exempt status is of real concern: \u201cIt\u2019s certainly going to be an issue. I don\u2019t deny
\n\tthat.\u201d26<\/sup> Not much more assuring is Internal Revenue Commissioner John Koskinen\u2019s statement at a senate hearing that the IRS would not pursue
\n\tremoving tax-exempt now, but would reevaluate it if public policy changed.27<\/sup>\n\t<\/p>\n


\n\tCONCLUSION<\/strong>\n\t<\/p>\n

\n\tAn all-or-nothing approach by either traditional family values or same-sex advocates would seem to be counterproductive at this point. Same-sex couples
\n\thave achieved the right to marry. But churches and their institutions also have rights. They should be able to set their own rules consistent with their
\n\tbeliefs and conscience unless it is a public policy \u201cinterest of the highest order and those not otherwise served.\u201d Where individual conscience is
\n\tinvolved, reasonable accommodation should be explored.\n\t<\/p>\n

\n\tDemeaning terms that do not convey equal worth of all persons should be eliminated. However we might identify ourselves, if we are in a minority
\n\tenvironment, we are all subject to mistreatment. It is worth noting that the Holocaust, which targeted Jews, also affected homosexuals.28<\/sup>\n\t<\/p>\n

\n\tIt is on the proper balancing of interests that our freedoms are maintained. As Christians, we remember that our founder, Jesus Christ, was crucified on
\n\tthe improper balancing of interests: \u201cIt is more to your interest that one man [Christ] should die for the people, than that the whole nation should be
\n\tdestroyed.\u201d
\n\t
\n\t\t29<\/sup><\/p>\n


<\/sup><\/p>\n","protected":false},"excerpt":{"rendered":"

It\u2019s been said that \u201cthe Constitution amounts to a prescription for political struggle and an invitation for an ongoing debate about enduring constitutional principles.\u201d1 Never has this been truer than in the intense debate over same-sex marriage. The first round was noneventful, but lately the topic has exploded with activity: ROUND ONE (1776-1992): First same-sex<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[315],"tags":[147],"class_list":["post-6384","post","type-post","status-publish","format-standard","hentry","category-november-december-2016","tag-november-december-2016"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6384","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6384"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6384\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6384"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6384"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6384"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}