A Sad Milestone for Marriage and Morality

A giant milestone in the moral revolution passed this week when the U.S. Supreme Court turned down every single appeal from several states on the issue of same-sex marriage. This decision not to take at least one case under consideration stunned both sides in the same-sex marriage battle. Last weekend’s edition of USA Today featured a front-page story that declared the virtual certainty that the Court would take at least one of the cases and declared same-sex marriage to be “a cause whose time has come.”

Well, same-sex marriage may well be an issue whose time has come in the culture, due to the massive moral shift that has taken place over the last few decades, but the nation’s highest court has decided that now is not the time for it to take up such a case. Faced with the opportunity either to stop same-sex marriage in its tracks or to hand down a sweeping decision tantamount to a new Roe v. Wade, the Court took a pass.

Some will argue that the Court’s decision was a strategic choice intended to preserve its dignity and stature. Already, many defenders of natural marriage are doing their best to argue that the Court’s refusal to take a case is better for the cause of marriage than a sweeping decision in favor of same-sex marriage. The proponents of same-sex marriage had hoped for just such a decision, and attorneys were jockeying for position, wanting to be the lead counsel for the “gay marriage Roe decision.” But make no mistake, the proponents of same-sex marriage won this round, and they won big. They did not get the sweeping coast to coast ruling they wanted, but what they got was an even faster track to the same result.

Had the Court taken one of the cases, the oral arguments would not have taken place until early 2015, and the decision would not have been likely until the end of next June. Until then, same-sex marriage would be on hold to some degree. Now, the Court’s decision to allow lower court rulings to stand sends an immediate signal — it is full steam ahead for same-sex marriage coast to coast.

As of last week, 19 states and the District of Columbia had legalized same-sex marriage by one means or another. The Court’s decision not to take one of the cases from the lower Federal courts means that every one of them stands. Therefore, not only will same-sex marriage be legal in the states that made a direct appeal, but in every state included within the same U.S. Circuit.

That result is that the decision made clear by the Court will lead, automatically, to the fact that 30 states will have legal same-sex marriage within weeks, if not days. The news from the Court means that the vast majority of Americans will live where same-sex marriage is legal, and three fifths of the states will have legalized same-sex marriage.

But the Court’s decision also sent another even more powerful message. The remaining federal courts were put on notice that same-sex marriage is now the expectation of the Supreme Court and that no appeal on the question is likely to be successful, or even heard. You can expect the lower courts to hear that message loudly and clearly — and fast.

This day in U.S. legal history will be remembered for many years to come as a landmark day toward same-sex marriage. It was the day the nation’s highest court took one of the lowest paths of least resistance. It now seeks to maintain its prestige by avoiding the backlash the Court experienced in the aftermath of Roe v. Wade in 1973. It wants to have its victory without taking further risks to its reputation.

Given the recent remarks made by Justice Ruth Bader Ginsburg, even some of the Court’s most liberal justices wanted to avoid a backlash while achieving the same eventual result. This week’s announcement means that their hopes were achieved.

But the decision also indicates something further — it points to the vindication of Justice Antonin Scalia. When the Court handed down the decision striking down all state sodomy statutes in 2003 in Lawrence v Texas, Justice Scalia declared that it meant the end of all morals legislation. The majority opinion in that decision was written by Justice Anthony Kennedy, whose legal reasoning was ridiculed by Scalia in one of his most scathing dissents.

Kennedy, said Scalia, had created “a massive disruption of the current social order,” that could not be stopped. Further: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

Eleven years earlier, Scalia had dissented from another Kennedy majority opinion, that time on abortion. Justice Kennedy had sustained a right to abortion, maintaining the central impact of Roe and pushing further toward a mysterious existential argument. Kennedy had written, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Scalia famously rejected that language as Kennedy’s “sweet-mystery-of-life passage,” and he saw that same reasoning behind the Lawrencedecision.

But Scalia also said this about the 2003 decision: “This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.” Further: “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as a formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples?”

Indeed, the Lawrence decision did put all laws limiting marriage to opposite sex couples on shaky ground. Very shaky ground. Justice Scalia saw what now appears obvious. The Court’s decision in Lawrence in 2003 set the stage for this week’s news.

Even more recently, Justice Kennedy was the author of the Court’s majority opinion in the Windsor decision striking down the federal government’s Defense of Marriage Act. That decision, handed down in June of 2013, set the stage for this week’s development in a big way.

Once again, Justice Scalia saw it coming. He called the Court’s decision to strike down DOMA “jaw-dropping” in both its audacity and its reasoning. Then he offered these memorable words: “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”

That “other shoe” was the inevitability of same-sex marriage as a national reality.

What happened this week at the Court — or perhaps what didn’t happen — is a direct vindication of Scalia’s warnings. He saw it coming and he warned us.

What the Court’s majority has now decided, evidently, is to allow shoes to fall at the hands of lower courts that will follow its reasoning and obey its signals.

The news from the Court means a sad vindication for Justice Antonin Scalia. It means an even sadder day for marriage in America.

And it means, no matter what you think you heard or didn’t hear from Washington, that the other shoe has dropped.

This article was originally posted at the AlbertMohler.com blog.

Georgetown University lesbian law professor Chai Feldblum believes that when same-sex is marriage is legalized, which she argues is both necessary and inevitable, conservative people of faith will lose religious rights. This is the same Chai Feldblum who has been nominated to serve on the Equal Employment Opportunity Commission (EEOC).

Feldblum, speaking at a Becket Fund Symposium in December 2005 stated the following:

[L]et us postulate, for the moment, that in some number of years an overwhelming majority of jurisdictions in this country will have changed their laws so that LGBT people will have full equality in society, including access to civil marriage. Or, indeed, let us postulate that the entire country is governed–as a matter of federal statutory and constitutional law–on the basis of full equality for LGBT people….

Assume for the moment that these beliefs ultimately translate into the passage of laws that prohibit discrimination based on sexual orientation and that provide same-sex couples the same societal supports currently available to opposite-sex couples, including access to civil marriage….[G]ranting this justified liberty and equality to gay people will likely put a burden on those religious people who believe acting on one’s same-sex sexual orientation is a sin and who may feel they are aiding and abetting sin if they rent an apartment to a gay couple, allow a gay couple to eat at their restaurant, or provide health benefits to a same-sex spouse….

Let me be very clear…in almost all the situations…I believe the burden on religious people that will be caused by granting gay people full equality will be justified….

That is because I believe granting liberty to gay people advances a compelling government interest, that such an interest cannot be adequately advanced if “pockets of resistance” to a societal statement of equality are permitted to flourish, and hence that a law that permits no individual exceptions based on religious beliefs will be the least restrictive means of achieving the goal of liberty for gay people…

Not surprisingly, following her nomination to the EEOC, Feldblum requested that her name be removed from the subversive document she signed in 2006 entitled “Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families and Relationships,” which begins with this troubling statement:

We, the undersigned–lesbian, gay, bisexual, and transgender (LGBT) and allied activists, scholars, educators, writers, artists, lawyers, journalists, and community organizers– seek to offer friends and colleagues everywhere a new vision for securing governmental and private institutional recognition of diverse kinds of partnerships, households, kinship relationships and families. In so doing, we hope to move beyond the narrow confines of marriage politics as they exist in the United States today.

We seek access to a flexible set of economic benefits and options regardless of sexual orientation, race, gender/gender identity, class, or citizenship status.

The “Beyond Marriage” authors seek to have “Committed, loving households in which there is more than one conjugal partner” as well as “Queer couples who decide to jointly create and raise a child with another queer person or couple, in two households” be recognized as families and accorded all the benefits of traditional marriages.

Click HERE to watch a short and important video that exposes the radical nature of Feldblum’s vision for America, American jurisprudence, and religious liberty.

And here are the titles of just three of Feldblum’s scholarly articles:

• “Moral Conflict and Liberty: Gay Rights and Religion” 
• “The Right to Define One’s Own Concept of Existence: What Lawrence Can Mean for Intersex and Transgender People” 
• “Gay is Good: The Moral Case for Marriage Equality and More” in which she asserts that “even if gay couples succeed in ‘getting marriage,’ the gay rights movement may have missed a critical opportunity — a chance to make a positive moral case for gay sex and gay couples. In other words, it will have missed the opportunity to argue that ‘gay is good,'” and that “changing the public’s perception of the morality of gay sex and of changing one’s gender may ultimately be necessary to achieve true equality for LGBT people.”

One of the authors of “Beyond Same-Sex Marriage,” Nancy Polikoff, another lesbian law professor, is pleased as punch that her radical compatriot Feldblum is being considered for the EEOC. Polikoff, who teaches about sexuality and the law at American University, has written voluminously on the issue of families headed by homosexuals. Through her many feckless assertions about families, Polikoff provides clear evidence that intelligence is often wholly disconnected from wisdom. 

Here are just a few of her statements from an article entitled “The Deliberate Construction of Families Without Fathers: Is it an Option for Lesbian and Heterosexual Mothers?“

“I start this paper with the premise that it is no tragedy, either on a national scale or in an individual family, for children to be raised without fathers.”

“Contrary to the ideology that simultaneously glorifies fathers and vilifies mothers, I want women to have the option to form families in which their children have no fathers.”

“Planned lesbian families exemplify the construction of parenthood as a process distinct from biology…”

“I envision…a method of liberating women and children from the control of men and of recognizing the legitimacy of deliberate childrearing without fathers…”

If conservatives continue to self-censor, if we refuse to courageously and publicly counter the relentless, pervasive, deafening cultural messages that affirm homosexual acts as moral, we will lose speech rights, religious liberty, and we will see the destruction of marriage and the natural family. 

On Thursday, Dec. 10, 2009, the Senate Committee on Health, Education, Labor, and Pensions approved Feldblum for the EEOC, which sends her nomination to the full Senate for a vote. Please contact both Senators Durbin and Burris to express your vehement opposition to her confirmation.

Take ACTION: Contact Republican leaders in the U.S. Senate to ask them to oppose the nomination of this radical activist.

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