The Bait-and-Switch over Same-Sex ‘Marriage’

Kim Davis is not alone.

After she declined to issue marriage licenses to same-sex couples, 32 magistrates in North Carolina recused themselves from performing same-sex unions. In Alabama, about half a dozen county probate judges, who oversee the issuance of marriage licenses, are not providing them to any couples. In Oregon, Judge Vance Day has stopped performing all weddings.

All across the nation, county clerks and justices of the peace have quietly resigned from their positions.

Is it going to become impossible for a Christian to hold public office in America?

When Justice Anthony Kennedy penned the Supreme Court’s Obergefell decision in June, striking down the marriage laws of more than half the states, he anticipated there would be conflict between the civil and the religious definitions of marriage.

How did he propose to resolve the conflict? By decreeing that “religious or philosophical premises” are not legitimate in law and public policy. Judicial decisions, he opined, must be based on “neutral” grounds.

But is the Obergefell ruling itself neutral? Not at all. It inserts the majority’s own religious and moral premises into the law. The real issue is not neutrality but the use of the courts to impose a liberal worldview on the entire nation.

Half a Brain

As a matter of history, much of American politics has been driven by a Christian moral vision. The Puritans and Pilgrims were largely motivated by the ideal of religious liberty. In the American Revolution, clergy were so influential in the fight for independence that they were nicknamed the Black Regiment (for their black robes). The Declaration of Independence rooted human freedom in “unalienable rights” that are “endowed by their Creator.”

The abolition movement was primarily driven by Christians making explicitly biblical arguments in the public square. The civil rights movement was led by Reverend Martin Luther King, Jr., whose arguments for racial equality were phrased in a biblical idiom. Today movements against abortion, against sex trafficking, and many other humane initiatives are motivated by Christian moral convictions.

The respected historian Bruce Kuklick, though not himself a Christian, argues that Christians are too apt to “hide their religion under a bushel.” As a sheer historical fact, he writes, “The United States has in its essence always been a Christian nation, and this should be apparent to anyone with half a brain.” He is not saying that each citizen was personally committed but that the public ethos and ethic were shaped by a biblical moral vision.

When Judges Make Law

With this history, how did the idea arise that Christian premises are illegitimate in law and public policy? That they must be banished to the private sphere?

The privatizing of Christianity is the tragic fruit of a secular worldview. As William Galston of the Brookings Institution explains, in the modern age, scholars decided that the study of law and politics must be modeled after science — by which they meant value free. Values were reduced to subjective emotions. Yet without a moral vision, law became purely pragmatic.

In fact, the dominant legal philosophy in America today is called legal pragmatism. A formative figure was Oliver Wendell Holmes, Jr., who applied evolutionary thinking to legal philosophy. He concluded that law is not based on an unchanging natural law (derived ultimately from divine law). Instead it is a product of evolving customs and traditions, relative to particular times and cultures. Thus judges should feel free to help the evolutionary process along by changing the law according to whatever social policy they think works best.

And how should they determine which policy works best? By its practical consequences. In Holmes’s words, the law should be established “upon accurately measured social desires.” In other words, what works is determined by empirical studies performed by social scientists. Law was reduced to an amoral tool for social engineering. As Holmes put it, the justification for any given law is “not that it represents an eternal principle” (such as justice) but “that it helps bring out a social end which we desire.”

In practice, of course, this means a social end that the judge desires — because the judge has the power to make his decisions stick. Holmes unabashedly argued that judges do not merely interpret the law but make law.

The rule of law was replaced by the rule of judges.

The Court’s New Morality

Where has legal pragmatism had its greatest impact? Most Americans first became aware of the new legal philosophy after the 1973 Roe v. Wade abortion decision. Even supporters of Roe agree that the court essentially legislated from the bench. In the majority opinion, Justice Harry Blackmun wrote that abortion must be considered in relation to “population growth, pollution, poverty, and racial” issues.

In other words, the Court made its decision not by what the law said but by the social outcomes it favored.

Obergefell is now the second most significant example of judge-made law. The majority opinion does not actually make any constitutional arguments. Instead Justice Kennedy indulges in high-flown poetic language: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.”

At times Justice Kennedy’s language grows explicitly philosophical, even religious: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” Spirituality? Kennedy states repeatedly that the function of the Court is to grant “dignity” to same-sex couples. Ultimately, he claims, the decision was informed by “new insight” into the “nature of injustice.”

No wonder Chief Justice Roberts notes in his dissent that the majority treated the issue not as a matter of constitutional law but as “a matter of moral philosophy.” A liberal Jewish magazine went so far as to hail the ruling as “profound spiritual writing.” The ruling is “a text that, while secular in nature, nonetheless takes the moral high ground.” It offers “principles of moral reflection.”

Note the supreme irony here: Liberal philosophies of law and politics banished Christian morality by claiming that the public sphere must be neutral. Yet today five justices have imposed their own private moral philosophy upon the entire nation.

So much for neutrality. It is now obvious that the intent in secularizing the law never was neutrality. The intent was to delegitimize Christian morality in order to institutionalize a liberal morality.

It was a bait-and-switch tactic: An activist cadre of lawyers and judges relegated Christianity to the private sphere so that their own moral imperatives could be imposed in the public sphere.

No Religion Except Their Own

Liberals who favor same-sex unions should state openly that they reject the neutrality ideal. They should be forthright in acknowledging that their goal is to impose their own substantive moral, religious, and philosophical views through the law.

In response, Christians should make the case that religious liberty is at the heart of all other freedoms — just as our forebears did among the Pilgrims and the Puritans, the pastors of the Black Regiment, the signers of the Declaration of Independence, the abolitionists, and the civil rights activists. At issue, once again, are “unalienable rights” that are “endowed by their Creator.”

We need to make it clear to our fellow citizens that our goal is a restoration of the founding framework that has made America, despite all its shortcomings, the freest nation in the world.