A Round-table Discussion on SCOTUS
In light of the recent Supreme Court decision on marriage, we here at TG decided to bring in some guest writers to discuss in a round-table format. Frankly, I’m not qualified to tie my own shoes (hence I wear flip flops). So I will be conceding the “microphone” so to speak to our guests — Tamara (@BookofTamara) and Campbell (@rcampbellsproul). Please introduce yourself and your political background real quick.
RCS: Glad to be doing this, should be fun. I’m Campbell, my political background is a Christian libertarian. I would fall under the secondary background of voluntaryist/anarcho-capitalist.
TW: Thanks for inviting me! I'm Tamara, and my political background would probably best be described as somewhere in the alternative right with libertarian sympathies.
Let’s get to the root of the issue. The Supreme Court ruled in favor of same-sex marriage and essentially overturned any state bans. Many states that formerly banned same-sex marriage are now handing out marriage licenses. What are your initial thoughts on the split vote and the effect this has on states rights?
TW: To be quite honest, this was a ruling I expected. This court has a history of 5-4 decisions on same sex issues, with Justice Kennedy pretty consistently being the swing justice. What I didn't expect was how the Court came to it decision. Kennedy's opinion pretty much disregarded precedent. This ruling is its own precedent, and to say this issue disregards states' rights is an understatement. In his opinion he made appeals to some of the arguments social conservatives make in opposition to same-sex marriage: marriage as the cornerstone of society and the right to "establish a home and bring up children." Clearly though, he reached a very different conclusion.
RCS: Looking at the split, I sympathize with Justice Roberts, at least on this issue. I worry, like he does, that the use of the supreme court as an activist to enforce broader public opinion (whether it is right or wrong) is a serious problem and not to be overlooked. I am deeply and firmly committed to the de-centralization of power, and so to see such gross and heinous overreach by the supreme court justices who voted yes is highly disappointing (though perhaps not surprising), particularly given the way in which the tenth amendment of the constitution is violated by this ruling.
Campbell, you bring up the tenth amendment. Can you give us a brief overview of what it entails?
RCS: The tenth amendment is remarkably simple. The full text reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Essentially any powers not explicitly granted to the federal government in the constitution are to be left to the states to codify into law at their discretion, and no branch of the federal government (including the judiciary) may overrule or add to the laws which each individual state puts in place.
So you see the Supreme Court’s decision as power asserted over the states. I’ve seen it stated that the decision was an application of the 14th amendment, namely “nor shall any State deprive any person of life, liberty, or property, without due process of law.” What do you say to those who have argued that way?
RCS: Because life, liberty, and property are not being taken from anyone if the state doesn’t sanction a marriage, whether it is between two straight people or two gay people. Marriage licenses are in and of themselves a positive service, and the rights to life, liberty, and property only carry with them negative obligations, that is, don’t take away someone’s life, liberty, or property. These rights do not require the provision of anything else by anyone, so the fourteenth amendment isn’t relevant to this discussion. Lack of a state marriage license doesn’t remove the life of a gay couple, it doesn’t infringe upon their liberty to live together in a contractual or covenantal relationship, and their property isn’t being taken from them either, in fact they may save a few dollars from not having to seek out a state marriage license.
TW: The 14th Amendment we know incorporates the States into the Bill of Rights, so anyone making that argument is more or less acknowledging what we are saying. This ruling absolutely does take power from the states, but that's been happening for awhile. As Scalia noted in his dissent, only 11 of the 30+ that had legalized same-sex marriage prior to this ruling did so democratically, so the Supreme Court was really just finishing the job. It can still be argued that a right which was extended to heterosexual couples--the right to marriage benefits which are really pretty numerous--is a matter of individual rights which trump any state powers, and that's what I think they found.
Do you think the Court’s decision protects individual rights associated with marriage benefits? Are the two of y’all in agreement on this issue?
TW: I read some really interesting arguments for/against the idea that this ruling upholds individual rights. I think arguing for extending benefits as an extension of individual rights is invalid. For many, benefits to same-sex couples is a valid extension of individual rights. I've read arguments from the anarchist left and right disputing the idea that anything you have to for which you have to ask the government to grant legitimacy can truly be considered a right. In my opinion, the fact that we are even having this debate is the product of incredible overreach into marriage which started long before we began discussing same-sex unions. At this point, the most consistent application of individual rights is for the government to remove itself completely from the institution.
RCS: The individual rights associated with marriage don’t validate the decision because the individual rights which already exist, such as the right to freedom of association, already existed absent of this ruling. The court isn’t granting anyone rights so much as it is granting people permission to ask their permission to create a contract with one another. I agree with Tamara that the only consistent solution to this debate would be to get rid of state marriage licenses in all forms.
You both agree the government should be out of the marriage business. Yet, most of the religious angst stems from sexual orientation and practice. Many of the “religious right” are quick to state that proponents of pedophilia, polygamy, etc. will fight for their rights. One of these is specifically oriented toward marriage (polygamy). The other is a “sexual orientation” (pedophilia). Do these type of slippery slope arguments hold any water?
TW: It's funny you mention it, and I'm laughing as I type this because as some have pointed out, polygamy is historically *less* radical than same-sex unions. And there have already been arguments published in Vice, Politico, etc. in favor of allowing polygamy. Justice Kennedy's opinion also seems to kind of leave the door open there, though I don't expect they'll be a big push in this direction and especially for pedophilia. Or incest for that matter.
RCS: I think the slippery slope argument can be right oftentimes, and in this case it appears to be correct so far, however I do tend to shy away from it, largely because one way or another we’ll still have to deal with these issues, slippery slope or not. My concern in this case is that the way the ruling was made, it leaves a good deal of room for these groups to make their case for the same “rights.”
Those “rights” you speak of Campbell are marriage rights in particular. It would seem that only proponents of polygamy and incest would be able to capitalize on this. Which reminds us, this was not a decision to legitimize a sexual practice (e.g. homosexuality). Yet, in re-defining marriage there is concern that religious freedoms could be lost for those who oppose this sexual practice and redefinition. Frankly, does the church have reason to worry about persecution besides losing a dubious tax exemption?
TW: That's already happening. Remember the couple in New York that was fined $13,000 for not wanting to host a same-sex wedding? I predict there will be more of this. I can't guess how widespread it will be, but I expect more discrimination lawsuits in the coming months and years. I think we'll likely see lawsuits brought against individuals rather than churches though, only for the reason that people generally know what they're getting from churches.
RCS: Tamara’s right, there’s already some going on. Looking down the road, I think so, but I think ultimately it will be a good thing. The church losing its comfortable social status is a good thing from time to time, it helps to strengthen the church and weed out the tares from the wheat. I can’t say for sure what form the persecution may take or to what degree it may go, but I expect there to be some in my lifetime.
What practical effect do you think this will have for religious freedoms and more specifically traditional Christian churches? In light of mainline denominations’ accepting homosexual members/clergy, what response if any should traditional denominations, churches, and individuals prepare?
RCS: I think the practical effects will be similar to what we discussed above. Those who decline to do same-sex weddings will be liable to face legal action, and because of that they will need to be prepared for that trouble from a practical standpoint. I don’t think much of a response needs to be prepared by more conservative or traditional denominations, really. Ultimately they (we) need to continue to preach the whole counsel of the word of God, and pray for the work of the Holy Spirit to regenerate people in all walks of life.
TW: Thankfully it seems like the response has already been prepared. Sunday morning at least in my church, this was the topic of the message. I just think we ought to continue to be consistent. Read the Word, continue to be a reflection of God's love and most importantly, we can't cede truth for popularity.
Thank you both for your time and insights. I know this subject is getting a lot of attention. I imagine we will get the chance to do this more often as the political version of The Hunger Games kicks into gear.