NOM BLOG

Category Archives: Law

Volokh on Coeur d'Alene Ordinance: "Inconsistent with the Free Speech Clause and the Idaho RFRA"

UCLA Law Professor and Washington Post blogger Eugene Volokh has posted an analysis of the controversy surrounding the Hitching Post Wedding Chapel in Coeur d'Alene, Idaho.

If you haven't heard about the outrageous case, click here for more information.

The basic situation is this, as explained by Alliance Defending Freedom, one of whose allied attorneys will be representing the couple that runs the chapel:

City officials told Donald Knapp that he and his wife Evelyn, both ordained ministers who run Hitching Post Wedding Chapel, are required to perform such ceremonies or face months in jail and/or thousands of dollars in fines. The city claims its “non-discrimination” ordinance requires the Knapps to perform same-sex wedding ceremonies now that the courts have overridden Idaho’s voter-approved constitutional amendment that affirmed marriage as the union of a man and a woman.

Silenced

As ADF Senior Legal Counsel Jeremy Tedesco notes, "Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here – and it’s happened this quickly."

Volokh, in his piece, seems to agree with ADF that "he city is on seriously flawed legal ground." He writes:

The First Amendment protects the right to speak the words in a wedding ceremony — words that have deep meaning to many officiants as well as to the parties — and the right to refrain from speaking the words. A system which secures the right to spread religious and moral messages inherent in the wedding vows must also guarantee the right not to convey those messages (including the message of approval of the wedding inherent in the act of officiating at it) in contexts that the officiant thinks unholy and immoral rather than sacred and right.

187643976We hope and pray that the Knapps are successful in their lawsuit. But the fact that such a lawsuit is needed at all is a sobering reminder of why we must continue to fight to roll back the damaging and unconstitutional imposition of same-sex 'marriage' that has been forced on so many States' citizens by ideologically-driven and unconscionable judges playing to a powerful special interest group.

More than the definition of marriage is at stake: the fundamental contours of our democratic republic, such as the right to self-determination and the rights of religion, speech, and assembly imbricated in the First Amendment, are also at risk of being radically redefined.

"Putting to Rest a Bad Argument"

Sherif Girgis, one of the co-authors of What is Marriage? Man and Woman: A Defense, opines at Public Discourse about a "bad argument" that needs to be put to rest - namely, the argument that "laws defining marriage as a male-female union should be treated as forms of sex discrimination".

Girgis writes:

126982681The Supreme Court closely scrutinizes policies involving racial, sexual, and other "suspect" classifications. But unlike almost every other classification imaginable, marriage laws use a criterion necessarily linked to an inherently good social purpose that we didn't just invent. This criterion isn't truly suspect and shouldn't get heightened scrutiny.

[...]

The primary question regarding the definition of marriage is not whether any particular class of individuals (gay, straight, male, female) has a special link to the common good, but whether certain couples do. And it shifts the burden of proof onto those who would find no such link.

Read Girgis's whole outstanding essay today.

"This Isn't How the Constitution Works"

In The Daily Signal, Ryan Anderson looks at the latest "evolution" on the issue of same-sex 'marriage' undergone by President Obama, and explains why with recent waves of political 'evolutions' and activist judicial rulings, "we’re not only redefining marriage, we’re redefining our Constitution." He writes:

Constitution“Ultimately, I think the Equal Protection Clause does guarantee same-sex marriage in all fifty states,” Obama told the New Yorker.

This is a case study in how liberals “evolve” on policy. First they embrace a policy change. If they can’t convince a majority of Americans to vote for their preferred policy, they discover that the Constitution requires their preferred policy. So, according to the Obama of today, the Obama of early 2012 held an unconstitutional view of marriage. Or, perhaps, it wasn’t unconstitutional back then but it is now.

But this isn't how the Constitution works.

[...]  Judges should not insert their own policy preferences about marriage and declare them to be required by the Constitution [emphasis added].

Read the rest here.

Christian Bakers Face Increasing Fines for Standing by Beliefs on Marriage

You may remember the story of Aaron and Melissa Klein, the Christian bakery owners in Oregon who declined to make a wedding cake for a same-sex couple last year.  Not only have they been forced to close their successful family business, but they are now facing hundreds of thousands of dollars in fines. The Kleins ascertain that the $150,000 fine would be enough to completely bankrupt the couple and their 5 children.

The penalty hit the couple after they were found “guilty” of violating the same-sex couple’s civil rights, but what about their own civil rights? During an interview with the The Daily Signal, Aaron Klein said that he believed that he was “well within” his legal rights to decide not to take the couple’s business, citing his belief that marriage can only be between a man and a woman.

In an excerpt from ChristianNews, Klein recounts the interaction that led to this heavy fine being levied on him:

Melissa Klein“My first question was what’s the wedding date,” Klein told television station KTW in Portland. “My next question was [the] bride and groom’s name. … The girl giggled a little bit and said, ‘It’s two brides.’”

He stated that he then informed the women that the bakery does not make cakes for homosexual events.

“I apologized for wasting their time and said that unfortunately, we do not do same-sex marriages,” Klein explained.
The women then left Sweet Cakes upset about the incident, and later, one of them filed a complaint with the state.

But Klein states that he regularly serves homosexuals. He believes that there is a difference between serving homosexuals in general, and having to personally facilitate same-sex ceremonies, which is an act of participation.”

“I have customers come in almost on a weekly basis that are homosexual,” he said. “They can buy my stuff. I sell stuff. I talk with them. That’s fine. … This was not the first time we’ve served these girls.”

“We were being asked to participate in something that we could not participate in,” Klein’s wife, Melissa, noted.

In January, the Oregon Bureau of Labor and Industries (BOLI) announced that it had concluded that the Klein’s broke the law when they declined to make the cake.”

The same-sex couple in question subsequently filed a civil rights complaint against the couple, ignoring the fact that the Kleins had filled other orders for the woman who had requested the “wedding” cake. Other homosexual activists also reacted with bitterness, threatening emails, harassment of their vendors, as well as ransacking the Klein’s bakery truck.

But when the Kleins appeared at the Value Voters Summit earlier this month, they were anything but bitter. Melissa Klein even broke down in tears when she described how special the process of making wedding cake is to her:

“For me personally, when I would sit down with [a customer], I just would want to know everything about her wedding,” she tearfully stated ... about the intimate involvement she would have in the matter if she accepted the order. “I’d want to know about the flowers, her dress, the centerpieces, her colors, the way her hair is going to be. I would even want to talk about ‘where are you going on your honeymoon?'”

The couple posted the following message on Facebook:

“Our culture has accepted 2 huge lies. The first is that if you disagree with someone’s lifestyle, you must fear or hate them. Second is that to love someone means that you must agree with everything they believe or do. Both are nonsense. You don’t have to compromise convictions to be compassionate.

Sweet Cakes Facebook Message

It is tragic to see our government employing discrimination in the name of “anti-discrimination.”

Aaron and Melissa are true champions of the freedom of religion, and are an inspiring example of how in our morally unstable country, we're often faced with the choice to do either what is right or what is easy. Bravo to the Kleins for courageously defending marriage as the union between one man and woman.

Senator Cruz: "This is Judicial Activism at its Worst."

Today Senator Ted Cruz (R-Texas) released a strongly worded statement following the news of the Supreme Court's decision to deny requests from five States to review lower court decisions striking down their marriage definitions.

The statement reads, in part:

Broken Legal SystemThe Supreme Court’s decision to let rulings by lower court judges stand that redefine marriage is both tragic and indefensible. By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing.

This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislatures.

[...]

Marriage is a question for the States. That is why I have introduced legislation, S. 2024, to protect the authority of state legislatures to define marriage. And that is why, when Congress returns to session, I will be introducing a constitutional amendment to prevent the federal government or the courts from attacking or striking down state marriage laws.

Read the entire thing here at the Senator's website.

We thank Senator Cruz for his strong leadership on this issue, and we hope that he and his colleagues in Congress will continue to work to right the wrong done by activists judges and by the Supreme Court's misguided choice to ignore the issue.0

Ryan Anderson: "This is an unfortunate setback for sound Constitutional self-government"

Ryan T. Anderson at The Daily Signal comments on today's move by the Supreme Court to decline hearing appeals to cases overturning the marriage laws in several states.

He writes:

Ryan AndersonToday the U.S. Supreme Court declined to review appeals from Utah, Oklahoma, Virginia, Indiana and Wisconsin on the definition of marriage. This means that lower court rulings that struck down state marriage laws will now go into effect, forcing the redefinition of marriage in these states, and potentially in other states in the 4th, 7th, and 10th circuits.

This is an unfortunate setback for sound Constitutional self-government and a setback for a healthy marriage culture.

The truth of the matter is that the marriage laws in these five states—as in many states across our nation—are good laws that reflect the truth about marriage. Frequently they were passed with overwhelming democratic support. The Supreme Court should have reviewed these cases and should have upheld the authority of citizens and their elected representatives to make good marriage policy. Instead, the Supreme Court left standing bad rulings from lower federal courts that usurped authority from the people by striking down good laws.

Ryan ends with a call to action which we all must hear, and heed!

Declining to review these cases does not speak one way or the other to the merits of the cases. But it does leave in place bad rulings from lower courts—and it will make it harder for courts to do the right thing in the future.

Nevertheless, as citizens, we must rally in support of our constitutional authority to pass laws making marriage policy. We must insist that law and culture promote the truth about marriage [emphasis added].

[SOURCE].

NOM Keeping Up Fight for the People of Oregon

Oregon State CapitolOregonians have been so far shamefully denied their fundamental rights and role as citizens in a self-determinative democracy by a system of judicial tyranny run amok, but NOM is continuing our fight there to get the people of Oregon their day in court and ensure that they values are represented in the matter of how marriage is defined.

OregonLive reports:

Despite a string of legal defeats, the National Organization for Marriage is continuing its battle against the May 19 federal court decision overturning Oregon's ban on same-sex marriage.

Two weeks after a three-judge panel of the Ninth Circuit Court of Appeals rejected the group's attempt to intervene in the case, the National Organization for Marriage on Wednesday asked the full Ninth Circuit Court to reconsider the decision.

You can read the rest of the article here.

ICYMI: Slovakia Amends Constitution to Protect Marriage

SlovakiaThe Slovakia National Council voted June 4 to define marriage as the unique bond between one man and one woman in its Constitution. The amendment states, "it will be impossible for the rights and duties associated with marriage to be conferred in any way other than a legally recognised union between a man and a woman."

One hundred and two lawmakers supported the marriage amendment and 18 voted against it.

This should put to rest some of the silly claims that we've lost the marriage fight in the United States and abroad.  Slovakia's newest Constitutional amendment is evidence of the support that marriage enjoys.

Croatian voters similarly protected the definition of marriage back in 2013.

National Organization for Marriage Expresses Concern Over New Executive Order, Calls on Congress to Protect People of Faith Against 'Reverse Discrimination'

FOR IMMEDIATE RELEASE: July 21, 2014
Contact: Elizabeth Ray or Matille Thebolt (703-683-5004)


"The fact is that non-discrimination rules like the order issued by President Obama can become a weapon used to punish and harass individuals and groups who support marriage as the union of one man and one woman." — Brian Brown, NOM president —

nom_logo

Washington, D.C. — The National Organization for Marriage (NOM) expressed concern over President Obama's signing today of a new executive order ostensibly aimed at preventing workplace discrimination against LGBT persons but that in reality could target Christians and other people of faith for reverse discrimination and harassing lawsuits. The executive order applies to all groups, including religious employers, who contract with the federal government.

"The fact is that non-discrimination rules like the order issued by President Obama can become a weapon used to punish and harass individuals and groups who support marriage as the union of one man and one woman," said Brian S. Brown, NOM's president. "As with the flawed ENDA (Employee Non-Discrimination Act) legislation that was rejected by Congress, President Obama's order has the great potential of putting employers in the position of standing up for their faith values or violating the new order. This will unnecessarily subject people of faith to harassing complaints and lawsuits."

Brown surmised that this executive order could lead to Christians and others with belief in marriage as the union of a man and a woman facing reprisal and even punishment simply for expressing their views in the workplace.

"All manner of frivolous lawsuits could result from an action like this, and that's a dangerous thing when the courts have already shown such a lack of restraint when it comes to the question of the definition of marriage," Brown maintained. "This is nothing more than an agenda to create a cultural narrative wherein the belief in marriage as the union of one man and one woman becomes the legal and social equivalent of bigotry or hate speech. It is the next step on a path we've already seen this administration proudly pursuing, a path toward a new thought-policing state where those who hold traditional values about marriage and family are to be marginalized."

Brown called on Congress to pass legislation overturning the new executive order and to revisit the issues of conscience protection and religious freedom for believers in traditional marriage. He urged citizens to contact their Senators and Representatives about these concerns.

###

To schedule an interview with Brian Brown, president of the National Organization for Marriage, please contact Elizabeth Ray, [email protected], or Matille Thebolt, mthebolt@crcpublicrelatio[email protected], at 703-683-5004

Paid for by The National Organization for Marriage, Brian Brown, president. 2029 K Street NW, Suite 300 Washington, DC 20006, not authorized by any candidate or candidate's committee. New § 68A.405(1)(f) & (h).

California Senator: 'Husband' and 'Wife' are "Outdated, Biased" Terms

From FoxNews:

Husband-Wife-StrikethroughThe terms “husband” and “wife” have been deleted from California’s marriage law under a bill signed into law Monday by Gov. Jerry Brown.

The terms will be replaced with “spouse” to accommodate same-sex marriage, which became legal in the state last year after the Supreme Court struck down a voter-approved ban on it.

[...]

“I am pleased Governor Brown has recognized the importance of this bill, which makes it explicitly clear in state law that every loving couple has the right to marry in California,” Leno said. “This legislation removes outdated and biased language from state codes and recognizes all married spouses equally, regardless of their gender” [emphasis added].

Further proof that redefining marriage is not simply about "equality" or expanding the institution to include more kinds of relationships; it is about fundamentally altering the meaning of the institution itself, and discarding terms like "husband" and "wife" to "the ash heap of history."

Ryan Anderson on the Right to Be Wrong

In the aftermath of the recent Supreme Court ruling that the owners of Hobby Lobby cannot be forced to violate the tenets of their faith to fund abortifacient drugs, many scholars, professors, and activists are writing about the importance of religious freedom.

Ryan AndersonWriting for The Public Discourse, Ryan Anderson has penned yet another eloquent article.  This article, titled The Right to be Wrong, outlines why everyone has the right to religious freedom, not just those with "right" or politically correct beliefs.

Anderson countered the arguments of Hadley Arkes, who recently wrote a series of articles attempting to recast the argument for religious liberty, "not in terms of the sincerity of the religiously held belief and the competing concerns about public order, but in terms of its content, particularly in terms of its truth."

Anderson wrote:

One of the hallmarks of religious liberty protections is that they protect people of all faiths, even if their beliefs seem unfounded, flawed, implausible, or downright silly.

The Religious Freedom Restoration Act (RFRA)...was signed into law by President Clinton. RFRA provides a reasonable balance between religious liberty and the requirements of public order. It says that government can substantially burden a sincere religious belief only when it is pursuing a compelling government interest in the least restrictive means available.

Anderson analyzed practical considerations on religious liberty in court, the foundation and scope of the religious liberty right, and the natural law foundation of a right to religious liberty:

The natural law defense of a right to religious liberty is based on the moral truth that sincere religious activity, freely undertaken, is valuable in itself and deserves the space to flourish.

The full article is here.

Activist Judge Attempts to Redefine Marriage in Kentucky

U.S. District Judge John G. Heyburn declared Kentucky's law protecting marriage "void and unenforceable" yesterday but stayed the imposition of same-sex "marriages" pending a decision from the 6th U.S. Circuit Court of Appeals in Cincinnati.

Kentucky-FlagStunningly, a single judge has decided that his opinion can override the votes of 75 percent of Kentuckians, who approved a constitutional amendment protecting marriage in 2004.

According to Heyburn, there is an “utter lack of logical relation between the exclusion of same-sex couples from marriages and any conceivable legitimate state interest.”  Completely ignoring the fact that the state has an interest in protecting children, the wealth of evidence that shows children do best with a married mother and father in a stable relationship, and the basic truth that marriage connects children to their biological parents, Heyburn subverted the will of the people of Kentucky with this decision.

Kentucky Governor Steve Breshear said the state will appeal.

Heyburn's assertion that the Kentucky law excludes some people from “the status and dignity of marriage” begs the question: what is marriage?  Heyburn's decision/ruling implies that same-sex unions are the same as marriages, when by their very nature, they are not.

Heyburn also wrote that marriage denies the "intangible and emotional benefits of civil marriage" to same-sex couples.  But marriage is not purely an emotional union--it is the only union that comprehensibly unites the sexes toward bringing children into the world and ensures children benefit from growing up with both a mother and a father.

Heyburn's ruling is a dangerous example of judicial activism gone wild in the United States.  Renegade judge after renegade judge has worked to throw out the votes of the American people who have voted to protect marriage.  Heyburn's blatant disregard for the will of Kentucky voters and lack of understanding of the intrinsic nature of marriage and what sets it apart from other unions is alarming.

However, there is hope in this case.  Honorably, Gov. Breshear is doing his duty by defending the law and the democratic process.  And, noting Justice Kennedy's opinion in United States v. Windsor, Heyburn also did not claim that same-sex couples have a “fundamental right” to marry.

The 6th U.S. Circuit Court of Appeals in Cincinnati is expected to rule on this in early August.  Until then, the redefinition of marriage is on hold in Kentucky.  Let's pray that reason, truth, and justice prevail.

IRS is Lawless, Partisan

It's effective and wise for marriage supporters to boldly and vocally defend marriage in their communities. In light of our recent, hard-fought victory against the IRS, Don Williamson in Arlington, WA wrote a blistering op-ed asking why Eric Holder is refusing to act in light of this scandal.

IRSIt seems that activists for same sex marriage illegally obtained [NOM's] confidential tax return and a donor list from the IRS because they are opposed to gay marriage. They published the records containing the groups donors names and addresses online so that they and others could target them. My question is why has Eric Holder refused to investigate and prosecute this?

This is yet another example of the lawless and hyper-partisan behavior going on at the IRS. This in addition to the Lois Lerner scandal that involves the use of the IRS to help Obama get re-elected by targeting tea party and other conservative organizations for political purposes. All unprecedented in the annals of the IRS to my knowledge.

...these people have been given a free reign by the Obama administration to do as they wish and the intellectually dishonest media refuses to report it. We need a special prosecutor or two to investigate the IRS.

Thank you, Don, for your defense of the truth!  It is outrageous that the IRS released our confidential tax return and that Eric Holder and the Department of Justice refuse to investigate.  It is very inspiring that fellow Americans are standing with NOM and demanding that the Department of Justice get to the bottom of this.

The IRS leaking our confidential tax returns never should have happened in the first place--but it did.  We need to demand answers now so that we can learn the whole truth about Matthew Meisel and the "conduit" inside the IRS and so that we can ensure this kind of horrific abuse never happens again.

Sentiment Trumps Reason as Judges Impose Same-Sex “Marriage”

James Matthew Wilson at Crisis Magazine has penned an excellent piece on the strange phenomenon of sentiment and emotion trumping reason as activist judges impose a redefinition of marriage on millions of people.

The modern division between reason and appetite, knowledge and sentiment, is an inheritance that Americans have accepted to their great cost. We think it beneficial, because it constrains the rational arguments conducted in the public sphere to matters knowable to anyone who can count, and it leaves us a maximal latitude to pursue feelings of happiness without having to demonstrate them as being genuinely good.

BrainThis division is not one we ought to accept. Lin’s article inadvertently suggests as much. Human beings want to be happy; because politics and ethics alike are concerned with human beings, all political and ethical questions, including those concerned with positive law, are intrinsically concerned with our happiness.

[....]

We see this in the decision itself that occasions Lin’s article. At the close of U.S. District Judge John E. Jones III’s opinion, we are instructed with the following august sentiments:

We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.

Jones appeals to our understanding of the finality or purpose, the goodness, of the American people and their laws. What Pennsylvania law “represents,” or did until he ruined it, was a rational definition of marriage. He replaced a definition that could account for itself with rational argument with one rooted entirely in sentiment: because two people of the same sex feel strongly for one another, they must be granted access to the name of marriage, even if in giving them access the word “marriage” loses all meaning except as a union of sentiments.

[...]

No one, having admitted reason’s capacity to answer such questions, could rationally conclude that homosexual acts, much less the denomination of those who engage in them on an ongoing basis as “married,” could be included in that definition. Unless, that is, we commit ourselves to the following premises: 1) We do not think that the differences between men and women have any positive value and they should be concealed or eliminated. 2) We do not think that the differences between men’s and women’s bodies should in any way determine or limit the acts in which they may properly engage. 3) We do not think the conceiving and rearing of children a normal constituent of human happiness. 4) We do not, finally, think that anything other than whatever present feelings we happen to have ought to guide our actions.

Parents Reading with SonWe cannot rationally so commit ourselves. The differences between men and women are vital, rather than incidental, to the life of the family; the specific instances of complementarity between husband and wife begin with how they respond to an infant’s cry and how they play with that same infant, and go on from there pretty much ad infinitum. Those differences are visible in their bodies and in fact their bodily difference is the condition of possibility for their having children; their bodily differences are essential to their constitution as a family. The good of a family—its purpose, whose attainment constitutes its happiness—is just that union of opposites whose goodness is intrinsically self-diffusive, self-giving and, therefore, accidental impediments notwithstanding, leads to the having and rearing of children.

...the inscription in law of homosexual couplings as “marriages” does not make them so and cannot not change in any fundamental way how most persons will pursue the happiness to which they are by nature ordered. Jones’ judgment may however help such persons, and our society as a whole, discover sooner rather than later that one cannot substitute sentiments for reason or redefine reality to conform to our wills’ desires. But, in the short term, both these things constitute obstacles; they obscure reality. They try to make many of us feel what we do not feel, and they attempt to inhibit the capacity of reason to instruct our feelings. We have good reason to feel bad about that.

Wilson hits the nail on the head with his observations about the intrinsic differences between men and women and the mutual complementarity of the sexes, which is naturally ordered toward producing and raising children.

Mere "feelings" about what marriage is do not change the truth about what marriage actually is, the union of one man and one woman; nor about its conjugal purpose, the creating and nurturing of children, who benefit from having both a mother and a father.  Feelings and emotions may be difficult to argue against, especially when they hit close to home, and when they are so powerfully aided by sympathetic forces in the media... but they do not, they cannot, change fundamental truths about this issue.

Push for Racial Equality Different from Marriage Redefinition

Equating redefining marriage to civil rights is a popular tactic of the other side.  Jeff Shafer of Alliance Defending Freedom argues that the principles underlying the push for racial equality are very different from the principles behind the push to redefine marriage:

May 17 marked the sixtieth anniversary of the Supreme Court’s decision in Brown v. Board of Education, in which the Court ruled that the government-mandated racial segregation of public schools was unconstitutional. The Brown decision is an icon of American jurisprudence and justly holds a towering position in our legal history. Its ruling was a long overdue moral triumph, and a watershed moment in the elimination of state-enforced racial segregation.

Couple with Baby[...]

...though rhetorically strategic, it is deeply cynical for this late stage of the sexual revolution to congratulate itself by assuming the mantle of the black civil rights movement, a movement that drew its moral resources from Christian precept. The orthodox expression of Christian faith is the sworn enemy of the sexual adventurism juggernaut. The containment of sexuality within covenanted procreative marriage is central to the historic order of Christian civilization. Destroying that norm is both the goal of the sexual revolution and a prerequisite to its remaking of social order.

[...]

The ascendant public regime consecrates public chaos in remaking marriage to eliminate from its essence the relation of husband and wife, and in reducing the biological relation of mother and father to child to an incidental manufacturing feature with no necessary relational meaning or responsibility attending it.

Which brings us to the belligerence of United States v. Windsor. There, the Supreme Court invalidated the federal definition of marriage as a union of a man and a woman, discerning the law so stating to be but codified insult and meanness. Well, of course.

[...]

Perhaps predictably, prominent legal scholars have compared Windsor to Brown...But Windsor’s intentional obscurity and departure from governing standards make it notoriously difficult to explain the ruling as anything other than the Court using the occasion to confirm that a reimagined world is upon us, and the standards operable in the old model are no longer cognizable.

Not so Brown. Whatever the weaknesses in the Court’s rationale for the outcome, Brown’s ruling nevertheless was consonant with Fourteenth Amendment text and history, and with the normative implications of creation imago dei that the black civil rights movement pressed in its remonstrances. Windsor is not of that world.

Supreme Court

It is a notable feature of Windsor that the “dignity” the Court attributed to same-sex couples given marital status is a state-conferred dignity, not an inherent one. That’s a curious innovation, but it makes sense in context, for two reasons. First, the Court was aiming, for the moment, to formally restrict its ruling only to federal acknowledgment of a marital status given by state law.

Second, the “state as dignity-source” is probably a design feature of the replacement worldview, bereft as it is of any other source for human dignity. In the aftermath of God’s banishment, our flexibility to remake humanity and its fundamental relations is accompanied by the sort of drawbacks one might expect when the universe is up for grabs—such as the loss of justification for much of our legal tradition. But that may take a while to come into clear view. The transition will proceed acceptably in the short term so long as we remain haunted by the biblical anthropology from which came our treasured concepts of equality and human dignity. For a time, we’ll recite the old principles through habit, if not principle. But that won’t endure, for their public plausibility ultimately depends on a critical mass sharing fidelity to their Source.

Read the rest of Shafer's article at The Public Discourse.