During the arguments before the Supreme Court over same-sex marriage last week, it struck me that what may end up mattering most in the dispute in these two cases over gay unions was addressed the least.
The real issue for people who hold a Christian worldview may well be the extreme lengths to which they could be penalized if the High Court gets it wrong. The audacity of the arguments to legitimize homosexual marriage, and the apparent receptivity of Justices Ginsberg, Sotomayor, Kagan and Breyer, is an example of the federalization of American culture – the ever-expanding grasp of secular federal power over issues that historically have belonged to the states and to their citizens. Implied in this debate also is the privatization of religious expression and rights of conscience – the drastic shrinking of that sphere within which people of faith are allowed to express and live out their beliefs. In fact, I would suggest a corollary here: as federalization increases, religious liberty decreases.
In the Proposition 8 case, lower court federal judges vetoed the popular ballot initiative of the people of California who overwhelmingly supported a traditional definition of marriage in their state.
"Marriage," like the concept of "family," has, up to now, been defined by states as an institution whose definition and purpose were passed down through the religiously rooted common law. Thirty states have amended their constitutions to reflect traditional marriage as the norm. Recently, though, federal judges in California have minted a supposed new right under the federal Constitution that voids the values and decisions of citizens on this issue. In the other case, one that involves DOMA – the Defense of Marriage Act – unelected federal judges struck down a law passed by elected members of Congress and signed by President Clinton that defined marriage traditionally for federal law purposes. This problematic federalization impulse is not just a function of the judiciary, but appears to occasionally spring from all three branches: while Obamacare was White House-engineered, it was also congressionally authorized, and Supreme Court-affirmed. Further, the HHS mandate will, unless overturned, force religious employers to either violate their consciences by providing coverage for abortion-inducing drugs to employees and their families, or to pay exorbitant fines that could bankrupt them.
In the same way, an extreme federalization approach by the Supreme Court in either or both of the Prop. 8 and DOMA cases could result in the further privatization of religious expression and free speech. Nine times during the oral argument in the DOMA case, the word "animus" appeared, a legal term that in common parlance indicates hatred or ill will; in the context of that case, government lawyers have argued that Congress was guilty of expressing "animus" against gays in even passing DOMA in the first place. Justice Elena Kagan was relentless in questioning the attorney supporting DOMA, as she seemed to express disapproval that some members of those House of Representatives opposed gay marriage as "immoral."
In the Prop 8 case, the gay rights lawyers argued in their written brief that any condemnation of homosexuality "as immoral" constitutes official "discrimination." One federal court has already censored a high school student who labeled homosexuality as "shameful," and there are now signs that our Department of Justice and federal judges may enforce the new federal hate crimes law, which was lobbied effectively by gay activists, in ways that ignore rights of religious expression and belief. If the Supreme Court stumbles in deciding the marriage cases, we could see a Canadian-type legal culture emerge; in February, the Canadian Supreme Court affirmed the punishment of a man for publishing pamphlets that called for citizens to "keep homosexuality" "out of the public schools." That Court, in upholding provisions of a hate speech law, did not seem bothered by the fact that it was censoring a pamphlet that also included a call for homosexuals to "be redeemed if they repent and ask Jesus Christ to come into their lives as Lord and Savior."
None of this should evoke fear. But it should increase our vigilance, as we heed the advice of the Apostle Paul in Ephesians, chapter 5 – to "awake, sleeper," and to be careful to "walk, not as unwise, but as wise, making the most of your time, because the days are evil."