... 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.Yesterday, two Catholic and three Jewish Justices -- two Californians and three New Yorkers, four of them graduates of Harvard and one a graduate of Yale -- purported to discover a constitutional "right" to marriage. This maneuver preempted the various State legislatures who had been dealing with the question, and now makes it impossible for any legislature (Congress included) to change, modify or eliminate the "right", as it is a federal constitutional one. Unless and until the Supreme Court reverses its own decision, or until three-quarters of the States pass an amendment, it will stay as is.
The problem is that with this decision, the not-Supreme-and-not-a-court has set the stage for a monumental conflict between two constitutional rights: the right to exercise one's religion under the First Amendment, and the right to marry (which soon will have to be extended to polygamy and polyandry, since there are no limiting principles to the new "right" just discovered). And the worst part is that the only umpires for this impending conflict will be: you guessed it -- unelected lawyers in black robes.
What may come as news to some is that the United States has been there before -- and the results were not pretty.
Start with a church's tax-exempt status: it can be removed for teaching and holding principles that are contrary to federal law, as happened in the 1983 case of Bob Jones University v. United States, in which the Supreme Court upheld the IRS' refusal to continue the religious university's tax exemption because it forbade -- on sincerely held religious grounds -- interracial dating between its students. (Previously it had refused to admit blacks at all, but changed its policy in 1975 and adopted the ban on dating and marriage between races.)
The same reasoning used in Bob Jones can be used to deny a tax exemption to any church or religious institution that refuses to perform same-sex marriages. "[E]ntitlement to tax exemption depends on meeting certain common-law standards of charity - namely, that an institution seeking tax-exempt status must serve a public purpose and not be contrary to established public policy." (Bob Jones, 461 U.S. 574, at 586; emphasis added.) The italicized language is broad enough to be adapted to the "public policy" as now established in federal constitutional law by the five Harvard-Yale lawyers in their black robes -- as the United States Solicitor General admitted in oral argument.
This is also why ordained clergy in ECUSA will be deluding themselves if they think that the "opt-out" clause that keeps them from being mandated to perform same-sex marriages is going to last beyond the next General Convention. By then, the Church will have to make it mandatory for all clergy to perform same-sex marriages if it wishes to retain its tax-exempt status.
And that is still not the end of it. As my British barrister colleague Neil Addison, writing in his Religious Law Blog (linked at the right, under "Juricannon"), reminds us, the unfettered power of the U.S. government can even extend to seizing and forfeiting the property of churches that advocate religious principles that violate federal law:
In the 19th Century when the Mormon Church practiced polygamy the US Congress passed a series of increasingly draconian anti-Mormon acts culminating in the 1887 Edmunds-Tucker Act which dissolved the Mormon Church and directed the confiscation by the federal government of all church properties. The legality and constitutionality of this act was endorsed by the US Supreme Court in Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). on the basis that the beliefs and practices of the Mormon Church were incompatible with US Law.I agree with my colleague. There are absolutely no signs that the LGBT faction will be moderate in asserting the primacy of their newly-discovered constitutional right -- and the weak "assurance" given in Justice Kennedy's majority opinion provides no solace at all that those in black robes will protect anyone in the exercise of their religion.
Could the same thing happen to Religious Organisations which disagree with same-sex marriage ? The legal precedents are there and certainly on the part of same-sex marriage advocates the will is there to attack and if possible destroy religion, in particular Christianity. Religions in the US are therefore facing a dangerous future where their freedom is far from guaranteed.
In the words said at the opening of every session in the ornate courtroom at 1 First Street:
God save the United States and this honorable court.