I doubt we will be able to have the case retried, this is a legal outcome in search of a solution rather than a reasoned approach,[1] but it is a point we must, if we are to be able to answer the questions of our age adequately, be ready to answer.

Interpreting the Fourteenth Amendment

I do not like to discuss pure political theory, as an apologist it can be counterproductive. Yet, in my studies of the New Testament, I came to the very clear conclusion that attempts to interpret the New Testament by any standard other than the intent of the author are intellectually dishonest. I cannot in good conscience or by any intellectual slight of hand find any reason to argue that we interpret Scripture by means of authorial intent and judge that the constitution of the United States should be interpreted any other way. Thus, I cannot with integrity accept any argument based on a “living” constitution. Yet, when Justice Kennedy speaks of “discovering” rights in the constitution, it is just such a view he is required to take. It is highly doubtful that the author of the fourteenth amendment would have considered sexual activities to be covered.

Arbitrating religion

The Supreme Court decision requiring all states to implement same-sex marriage is based, ultimately, on the assumption that gay persons are deprived of equal treatment under the law, and therefore dignity. This further appears to be on the legal fiction that the only or primary reason why Christians and other oppose gay marriage is ultimately one of hatred, bias or discrimination, thus denying homosexuals of their dignity. Yet, to make this argument, we must assume that homosexuality should have equal dignity. Sex with a prostitute might very well involve the same acts as marital sex, but we as a society certainly understand that it does not deserve equal dignity. Similarly we do not afford equal dignity to those who engage in sex with multiple partners or who have multiple affairs to those who are faithful to their spouses. Why then would we assume sexual acts and relationships with a member of the same gender deserves equal dignity to heterosexual marriage? The answer, of course is that we assume sex with prostitutes and sex with multiple partners are wrong because of one’s religious beliefs; those who assume that one can be “polyamorous” today ultimately do so as well on a religious set of moral beliefs. Thus, the court has of necessity inserted and established their religious beliefs into the substructure of the decision itself. In doing so, the court has made itself and arbitrator not only on matters legal, but theological.

As Kennedy writes, “This dynamic can be seen in the Nation’s experience with gay and lesbian rights. Well into the 20th century, many States condemned same-sex intimacy as immoral, and homosexuality was treated as an illness.”[2] Yet, the question of morality in marriage is by definition a religious question, and thus to rule that the states were wrong to condemn marriage is no more, nor less, a religiously motivated answer than is that of Christians to argue it should be excluded.

Similarly, Kennedy writes, “It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.”[3] This to, rests on a religious reasoning; the transcendence of marriage is not a matter of law.

The Problem in the Conclusion

As I noted, Justice Kennedy’s reasoning requires an assumption of a religious basis – which is to say, one must assume that sex between people of the same gender is morally equivalent to sex with a spouse of the opposite gender. Justice Kennedy’s second to last paragraph strikes a deathknell for religious liberties if not expanded on.

He writes, “Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”[4]

He more fully states, “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to adocate with utmost, sincere conviction that, by divine pre- cepts, 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. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same- sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and search- ing debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”[5]

He recognizes the rights of Christians to teach their views, but not to carry them into the public square or to base our lives upon them. Thus, no protection of Christian institutions is afforded in this opinion, and in its tone and demarcation, Christian wedding businesses who refuse to participate in gay marriages will likely not find religious protections. Yet, in this, the court is not upholding the purpose of the first amendment, which clearly states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”[6] [emphasis mine] The constitution protects not merely religious opinions, but the fact that government cannot compel Christians to act against their religious beliefs.

The court, in building its case on a religious moral assertions has, in effect made an establishment of religion, and has taken the first step towards judging religions licit and illicit.

            [1] In many senses, this decision itself violates the legal arguments raised by Kennedy in his previous writing of the majority opinion last time gay marriage was discussed. Kennedy had previously implied the States had a near complete right to regulate marriage, until he decided their opinions did not agree with his desired outcome.

[2] Syllabus OBERGEFELL v. HODGES page 2.

            [3] Syllabus OBERGEFELL v. HODGES page 4.

            [4] Syllabus OBERGEFELL v. HODGES page 5.

[5] Opinion of the Court. OBERGEFELL v. HODGES page 27.

[6] The Constitution of the United States, Amendment 1.