By Mike Appleton, Guest Blogger
“So let us be blunt about it: we must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”
-Gary North, “The Intellectual Schizophrenia of the New Christian Right,” (Christianity and Civilization: The Failure of the American Baptist Culture, Number 1, Spring, 1982)
In Loving v. Virginia, 388 U.S 1 (1967), the Supreme Court held that Virginia’s prohibition of interracial marriage violated the Due Process Clause of the Fourteenth Amendment. “The freedom to marry,” wrote Chief Justice Warren, “has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 366 U.S. at 12. Many people were hoping that the Court would formally accord that status to same-sex marriage last month. But it did not happen. Edith Windsor will receive hundreds of thousands of dollars in tax refunds from the federal government, but the Court did not find it necessary to address the issue of same-sex marriage as a constitutional right, and elected not to do so. United States v. Windsor, No. 12-307 (June 26, 2013).
While that central constitutional issue remains unresolved, opponents of same-sex marriage are on the move. The Freedom Federation, a coalition of civil and religious right-wing organizations ranging from Americans for Prosperity to Wallbuilders, has issued a pre-emptive strike in the form of a signed letter declaring that “the Supreme Court has no authority to redefine marriage… .” The letter, which can be found on the Freedom Federation website, asserts that should the Court grant legal recognition to same-sex marriage, it “will be acting beyond its proper constitutional role,” and concludes with the vaguely ominous warning that “this is the line we must draw and one we cannot and will not cross.”
We have witnessed in recent years an increasing willingness by state legislatures to adopt nullification statutes, facially unconstitutional but politically potent. Now the religious right has determined to extend the nullification doctrine to the judicial branch, employing the language of religious freedom to hide a theocratic dominionist vision of government and society.
In 2004 and again in 2005, legislation known as the Constitution Restoration Act was introduced in both the House and the Senate. If adopted, the act would have stripped the federal courts of jurisdiction to consider any case challenging the acknowledgment of God as a source of law by any federal, state or local governmental unit. The act would have also mandated impeachment for any violation. The legislation did not make it out of committee, but its intention was crystal clear: the rejection of the secularist notion of separation of church and state.
The drafting of the statute was largely the work of Herb Titus, a lawyer who served as the first dean of the law school at Regent University and who famously represented Judge Roy Moore, the Alabama jurist removed as Chief Justice of the Alabama Supreme Court for his refusal to comply with a federal court order compelling the removal from the courthouse rotunda of a monument to the Ten Commandments.
The failure of the attempted legislative assault on established jurisprudence construing the Establishment and Free Exercise clauses, combined with the pronounced hatred of the LBGT community by many religious fundamentalists, virtually guaranteed that something resembling the Freedom Federation letter would emerge when it did. The co-author of the letter is Mat Staver, the founder of Liberty Counsel and dean of the Liberty University School of Law. In March of this year, Liberty Counsel welcomed the Florida Faith & Works Coalition to its member organizations. The Coalition represents approximately 600 conservative pastors engaged in promoting universal Christian dominionism. From its website: “Subduing and having dominion over all the earth commands responsibility over the entire animate and inanimate world including the moral values that form the basis of society. We affirm that, historically, America was established as a Christian nation and its policies were based on biblical principles. The guardian of those biblical principles has always been His church. And His church, in recent history, has passively abdicated its guardianship responsibility.”
The arguments in the Freedom Federation letter are boldly theocratic. First, it is urged that marriage solely between a man and a woman is mandated by “natural moral law,” a product of reason. But it approaches natural law in the same manner that Justice Scalia approaches the Constitution, as a rigid and dead body of law. (It also fails to identity which system or systems of natural law it endorses, but that’s another topic.) The truth is that our understanding of natural law theory and of the Constitution have evolved precisely because reason evolves as it is informed by knowledge and experience.
The letter next asserts that natural moral law is “affirmed, fulfilled, and elevated by Christian teaching,” thus adding the biblical foundation for the treatment of marriage between a man and a woman as divinely ordained and not subject to expansion or modification by positive law. This is not only an argument against a secular view of marriage; in accordance with dominionist theology, it is also a rejection of religious pluralism.
Finally, the letter claims that same-sex marriage, once legitimized, will inevitably lead to its compulsory recognition by Christians, thereby undermining freedom of religion and conscience. This position is demonstrably absurd, of course, since no religious sect has ever been compelled to grant sacramental status to any marital union that conflicts with its own doctrinal requirements. And in the eyes of the law, no marriage has ever required religious approval as a condition of legitimacy.
Fundamentalist Christians must recognize by now that they are losing the battle against the ultimate acceptance of same-sex marriage. But they are also patient and vigilant. The Freedom Federation letter is a reminder that the preservation of secular government and religious freedom will also require patience and vigilance.