Tuesday, March 24, 2015

Tyranny in Vestments

The time has come, the Walrus said, to talk of many things:
Of shoes, and ships, and sealing -wax; of cabbages, and kings.
Yes, indeed -- "of cabbages and kings." The thing you need to know about the former is to "[p]lant [the] recommended variety", and that, as with churches and many other things under the sun,  "[e]xcess water taken up ... causes head to burst." 

As for the latter, let us speak of kings in black robes, and of ministers in bright vestments. We are ruled by five of the former, and from time to time there are more of them -- up to nine, in all. They wield a prodigious power over our society, in both manners and morals. The power they have is a tyrannical one, because once exercised, it cannot easily be thwarted or reversed. And yet, in this democracy of ours, they are not elected, and once in their robes, they serve for life.

This coming April 28, for instance, the nine will take up the knotty question of just what a "marriage" is. Now, it is not as though this will be the first time they have done so. Consider this recitation by the U.S. Supreme Court, from rather long ago, in a case in which an inheritance depended on whether the claimants' mother had been legally married:
The residue of the instructions contained in this exception all involve the question as to what constituted marriage, at the time of this cohabitation, by the laws of Georgia and South Carolina. The question has, of course, no concern with the nature and character of the union of man and wife in a religious point of view. But regarding it (as a court of justice must do) merely as a civil contract, and deciding in what form it ought to have been celebrated in order to give the parties the legal rights of property which belong to the husband or the wife, and to render the issue legitimate, the Circuit Court held, and so instructed the jury, that if they believed that, before any sexual connexion between the parties, they, in the presence of her family and friends, agreed to marry, and did afterwards live together as man and wife, the tie was indissoluble even by mutual consent. (Jewell's Lessee v. Jewell, 42 U.S. 219, 233-34, 11 L. Ed. 108 (1843).)
So regardless of what a church may view as a marriage, a civil court in 1843 regarded it as a species of civil contract, which if expressed and witnessed in proper form would be regarded as indissoluble even by mutual consent.

O tempora! O mores! How have we fallen!

For now, on April 28, the wearers of the nine black robes of the Supreme Court will hear argument on these questions, in the case of Obergefell v. Hodges (linked with three other cases):
1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
The Fourteenth Amendment to the United States Constitution passed Congress in the years immediately following the Civil War. It requires all States to grant to their citizens the "equal protection of the law." What it historically meant is that there could not be one law for blacks and a different one for whites, for example. Since both were persons in the eyes of the law, the same voter eligibility requirements, the same transportation and travel accommodations, and (eventually) the same schools, had to be made available to both races alike.

The advocates for same-sex marriage have portrayed themselves as in the same situation as blacks trying to travel on a train, or get service in a hotel or restaurant. They ask: Why should marriage be between just two people of the opposite sex? And in doing so, they have convinced many of the secular courts to take up their cause.

The premise for their argument is that marriage is defined more as a (lifelong, but not always) relationship between two loving humans than it is a relationship between two who are one of each sex. Introducing the gender dimension into the equation makes the relationship exclusive and discriminatory, they say. Accordingly, laws and even constitutional amendments which limit marriage to two persons of the opposite sex must be struck down by using the "equal protection" clause of the Fourteenth Amendment.

These "equal protection" advocates are not bothered in the slightest by the circularity of their reasoning. If one defines "marriage" at the outset as "any committed relationship between any two human beings," then the definition includes the conclusion one wants to reach: that any two humans are entitled to marry.

Seeing marriage in the traditional way of the courts, as a civil contract, does not resolve the circularity either. The question is: a civil contract between whom? Two human beings, or two humans of the opposite sex? The courts do not allow humans below the age of eighteen to enter into binding contracts, so traditionally minors could not marry. But there are many "committed, loving relationships" today between teenagers. So why should they not be allowed to marry, too, regardless of their age?

I submit that if one's age has something to do with the essence of marriage, then so does one's sex. And in so saying, I am doing nothing more than upholding tradition. Throw away tradition -- throw out sex as a qualifier, and you have no rational basis for retaining age, either. And pretty soon the duality of marriage has to go overboard, too: why stop at a contract between just two people? Can't we have contracts between three or more?

But the U.S. Supreme Court will not address such questions until they are squarely presented in a case before it. It is not in the business of ruling on future cases. It changes the law one brick at a time, but what a change it makes! It is change for the country as a whole. And that is why the same-sex advocates rely on the courts to achieve their goal, rather than upon the popularly elected legislatures. If they can convince the Supreme Court to take away that brick, it is gone for once and for all, in all fifty States, at a single swipe. Legislatures can deal with only the bricks in their own State's walls, and winning State-by-State is an awfully cumbersome (and uncertain) process.

Otto von Bismarck once famously remarked that there were two things which no man should witness being made: one is sausages, and the other is legislation. Well, when it comes to the Supreme Court defining "marriage" for all fifty States, what we are witnessing is massive legislation on a nation-wide scale.

And it is not a pretty sight. Look at this link again. From that one page you can see listed, and have links to, every single brief filed with the Court since the case reached it last November. The bulk of the briefs from non-parties -- called "amicus curiae ['friend of the court'] briefs" -- have been filed just this month. There are nearly eighty of them!

Now look at the "amici" who actually filed the briefs. The ones that argue against redefining marriage can be counted on the fingers of one hand. More than ninety percent of the "friendly" briefs are from people and groups who want the laws against same-sex marriages struck down.

The latter include this particular amicus brief, filed by the Rev. Gay Clark Jennings, President of ECUSA's House of Deputies, and joined by Bishops White and Hahn of Kentucky; Bishops Gibbs,  Houghland, Ray and Ousley from Michigan; Bishops Hollingsworth, Bowman, Persell, Williams, Breidenthal, Price and Rivera from Ohio; and Bishops Johnson and Young of Tennessee, along with other denominations, groups and committees. Moreover, there is a list in Appendix A to the brief of nearly 2,000 priests, many of them Episcopal, who have joined in filing the brief as well. All say that they "support equal treatment for same-sex couples with respect to civil marriage" (Brief, p. 1; emphasis added.)

Now these I have mentioned are all bishops and clergy in the Episcopal Church. What business do they have touting their religious affiliation in endorsing the redefinition of civil marriage? Moreover, look at how -- from they very first page -- they disavow and undermine the very authority of any church to define what marriage is (emphasis again added):
While Amici come from faiths that have approached issues affecting lesbian and gay people and their families in different ways over the years, they are united in the belief that, in our vastly diverse and pluralistic society, particular religious views or definitions of marriage should not be permitted to influence which couples’ marriages the state recognizes or permits.
It is not enough for ECUSA's bishops and clergy to say that the Church's traditional definition of marriage is inadequate for "our vastly diverse and pluralistic society." Not only is that definition no longer serviceable to society at large, but also it should not even be "permitted to influence" what society thinks marriage is!

But if they truly believe what they write, then why do the bishops and clergy join the brief as bishops and clergy of ECUSA, instead of just as private civilians? Bishops and clergy should not seek to impose their religion-based views on secular society, right? Why then tout their titles, if not to pat themselves on the back for being so "broad-minded" as to endorse views at odds with their religion?

Moreover, who gave them permission to speak using the Church's name and offices, anyway?? It was just last year that the Presiding Bishop and several other bishops brought Title IV charges against the Communion Partner bishops and clergy -- the Quincy three and the Fort Worth ten -- for filing affidavits in the Quincy case and an amicus brief with the Texas Supreme Court. The charges were that they misrepresented the polity of the Church, and consisted only of a "minority view" (words which they were forced to acknowledge under duress of more severe punishment).

The official Book of Common Prayer used throughout the Episcopal Church solemnly declares that marriage is "between a man and a woman." Who are these righteous prelates who betray their ordination vows to profess publicly and without shame or apology a marriage doctrine that is contrary to, and that positively undermines, the only one authorized by Holy Scripture and currently recognized by the whole Church? General Convention supposedly offered experimental rites for same-sex blessings (which it had no authority to offer until the Prayer Book was officially changed). But when did General Convention authorize the Rev. Jennings and her episcopal colleagues to appear with all their trappings and titles to offer their experimental views to aid the secular courts?

I do not ever remember, when I was growing up, any bishops in ECUSA trying to influence courts or legislatures in favor of no-fault divorce. The Church addressed the issue only gradually (including through resolutions adopted over the years at Lambeth Conferences), and no small coterie of clergy organized to promote doctrine contrary to its then teaching. Yes, the Church changed the doctrine with time, but it did so at first very reluctantly -- and some (myself included) mark that apostasy as the beginning of the decline of the authority of church in Western society. By relinquishing control of the dissolution of marriage to the State, the Church next will relinquish control of marriage itself to the State. We will reap what earlier generations sowed for us.

Indeed, given the Supreme Court's simple observation in 1843 (quoted above) that a civil marriage contract was indissoluble, even with the parties' mutual consent, one has to say the Church is currently hastening the day when the concept of "marriage" will have been so expanded as to be meaningless: It will mean a relationship between any number of people of any age or gender who want to have a relationship for as long as they want to have one -- with maybe some pets thrown in for good measure. "Marriage" will thus follow "divorce" into meaninglessness, and will be so easy to enter into and to dissolve that churches will be superfluous.

When it happens, it will happen with the Church's active collaboration, as we are witnessing now before the Supreme Court. The brazenness of those Episcopal bishops and clergy in clothing themselves with the Church's ostensible authority is unfortunately of a piece with their self-defeating support for same-sex marriage. And it is also, in miniature, the problem we as a country have with nine (actually, just five) people in black robes who take it upon themselves to tell the rest of us how to define marriage.

The Court will issue its opinion in the Obergefell cases by the end of June. It will be another 5-4 Constitutional wreck of a decision, held together intellectually with band-aids and baling-wire, logically proceeding in an endless circle, and totally unworthy of the august institution from which it proceeds. It will be celebrated totally out of proportion to the number of people it directly affects, and hailed as another "milestone" of our "vastly diverse and pluralistic society."

With five Supreme Court justices and fifteen Episcopal bishops to light the way for us in their respective vestments, how could we ever go wrong? O brave new world, that has such people in it!


  1. I have given up on predicting which way this court will go, but I trust your estimate. It is hard to buck the crowd, and I hope one black robed king will swing.

  2. Will the SCOTUS acknowledge their own ruling of 1879 which ruled on the constitutionality of the 1862 Act of Congress against bigamy? And if not, will that not open the doors to multiple participants in marriage? It seems to me that in 1879 there was no doubt in the court's mind that marriage was defined as between one man and one woman. Your thoughts?

  3. Revrhino, I will provide a link to that opinion for those unfamiliar with the case. The important bits are towards the end, and I doubt that our present SCOTUS would come to the same conclusion because they operate from an entirely different worldview.

    "In connection with the case we are now considering, it is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of [98 U.S. 145, 166] the people, to a greater or less extent, rests."


  4. Regardless of the 1879 SCOTUS ruling, what is disturbing and depressingly misunderstood is that imposing a redefinition of marriage on a state by virtue of the Fourteenth Amendment is argued in terms of fairness and liberty itself. The "goal" is just so important here, doesn't one see, in realizing progress and inclusion, equality and increased participation in societal affairs, etc.,etc.. What happened to this country's basic, and written, Constitutional principles? The federal government was created by states, was created to be a government of limited powers, the Fourteenth Amendment does not revoke other basic principles of the Constitution, and fairness and liberty would dictate that the law live up to all basic Constitutional principles. The issue for the jurists in this matter is really whether there's no limit in reality today to non-recognition by courts of basic Constitutional principles. Are we really this legally "advanced" in the direction of arbitrariness?