Gay marriage ruling threatens the First Amendment

John Rossomando Contributor
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Religious freedom in America could be the main casualty if Judge Vaughn Walker’s decision to redefine marriage in California by overturning Prop. 8 is upheld all the way to the Supreme Court.

If the U.S. Supreme Court were to uphold Judge Walker’s subjective opinion about the morality of homosexuality and redefine marriage, it would lead to the gutting of the First Amendment as the government cracks down on dissent by labeling it “hate speech”, as has happened in Europe and Canada.

A Supreme Court decision from the nation’s last great debate over the legal definition of marriage, regarding polygamy, could provide a clue to the threat same-sex marriage poses to religious freedom.

“Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order,” the Supreme Court wrote in its 1878 Reynolds v. U.S. decision. “To permit [polygamy] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”

Consequently, if marriage were to be redefined nationwide to include homosexuals, religious viewpoints suggesting only a man and a woman can marry would come to be seen as lacking protection, just as Mormon views about polygamy were in the 19th century.

The First Amendment’s guarantees of freedom of religion, freedom of speech, and freedom of conscience would be effectively abolished were the Supreme Court to affirm Walker’s decision because the homosexuals’ newly created marriage rights would trump those of dissenters to publicly disagree.

This has already been seen in cases in New Jersey and New Mexico where Christians were taken to court because they refused to participate in same-sex weddings.

Judge Walker “in one quote from his decision says, ‘Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harms gays and lesbians,’” said Wendy Wright, president of Concerned Women for America. “He is basically saying just having religious beliefs on a subject harms someone else.

“What the judge is trying to say is that if people feel guilty about something it harms them.”

His logic could setup a legal rationale for the governmental to crackdown on religious opposition to homosexual behavior because it would come to be seen as “subversive of good order” just as racism has.

Marriage, unlike other institutions, suggests societal sanction for a relationship and carries societal responsibilities, which will force traditionalist Christian, Jewish, and Muslim business owners and religious organizations to recognize “married” same-sex relationships or face legal action if they refuse to extend marital benefits.

This has already happened in the District of Columbia and Massachusetts, which have redefined marriage.

This would in effect mandate the assent of conscience and will to behaviors the Bible and Qur’an teach are immoral, which is contrary to the spirit of democratic pluralism that respects freedom of conscience.

Government should not be in business of telling Americans they should approve of homosexual conduct anymore than it should be in the business of telling them they should assent to adulterous or polygamous relationships.

Forcing people of faith who believe marriage is intrinsically heterosexual and divinely instituted to assent to Judge Walker’s revisionist definition of marriage is akin to passing a law requiring Jews to publicly affirm the divinity of Christ or Muslims to eat pork on Fridays.

Catholic League President Bill Donohue warns gay activists will likely use the creation of the new institution of same-sex marriage as a hammer to attack churches that believe marriage is intrinsically heterosexual by revoking their tax-exempt status.

“We are moving in the direction of Fidel Castro to privatize religion; if you want to pray, you have to pray indoors,” Donohue said. “This is nothing more than the old-fashioned Marxist effort to tear down existing institutions to destroy the capitalist structure.”

Donohue’s observations are not too far off considering the gay-rights movement’s Marxist origins.

And those churches that refuse to practice same-sex marriages will be portrayed by gay activists and the media as being no different than churches that formerly refused to marry interracial couples.

Redefining marriage would create the sort of religious coercion the founding fathers created the First Amendment’s establishment clause to prevent.

Judge Walker’s opinion that religious norms have no place in deciding the definition of marriage and that atheistic secular values are neutral should take precedence over the religious values that have defined the institution since the nation’s founding is absurd.

His own views about homosexuality and those who think like him could be considered “religious” broadly speaking because our nation’s courts have defined the term “religion” broadly enough to include them.

The Equal Employment Opportunity Commission (EEOC), relying on the Supreme Court’s 1965 Seeger v. U.S. decision, defines “religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”

There can be no doubt the beliefs of Judge Walker and likeminded individuals are sincere about what they believe and hold them with the strength of traditional religious views.

This raises the interesting possibility that mandating acceptance of homosexuality via the redefinition of marriage could violate the Establishment clause.

Gay activists have no more right to coerce Americans into accepting their worldview than Christians have to force Muslims to read the Bible in public schools, considering their ideology seems to fit the legal definition of a “religion”.

It’s one thing to say the state can’t ban homosexual acts, but it is quite another for the state to mandate adherence to a subjective worldview saying they or morally correct and worthy of blessing.

History also shows the Supreme Court based its rejection of the last effort to redefine marriage on religious grounds, which seems to undermine the secularist reading gay activists give the nation’s marriage laws.

The “spread and practice of polygamy is, in a measure, a return to barbarism. It is contrary to the spirit of Christianity, and the civilization which Christianity has produced in the Western world,” the Supreme Court held in 1889’s Mormon Church v. U.S.

The court used similar language in 1890’s Davis v. Beason decision, which said:

“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries … Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.”

Saying Christian beliefs have no place in the public square when it comes to the legal definition of marriage is revolutionary and represents a clean break from our heritage. These cases are relevant to the same-sex marriage debate because they involve the legal definition of marriage.

The irony is this push for “marriage equality” would have been anathema to early gay activists who saw marriage as outdated and oppressive.

“We question however as an ideal, the finding and settling down eternally with one ‘right’ partner,” London’s Gay Liberation Front wrote in its 1971 manifesto under a heading attacking “Compulsive Monogamy”:

“This is the blueprint of the straight world which gay people have taken over. It is inevitably a parody, since they haven’t even the justification of straight couples-the need to provide a stable environment for their children (though in any case we believe that the suffocating small family unit is by no means the best atmosphere for bringing up children.

“Monogamy is usually based on ownership-the woman sells her services to the man in return for security for herself and her children-and is entirely bound up in the man’s idea of property furthermore in our society the monogamous couple, with or without children, is an isolated, shut-in, up-tight unit, suspicious of and hostile to outsiders. And though we don’t lay down rules or tell gay people how they should behave in bed or in their relationships, we do want them to question society’s blueprint for the couple.”

If the early gay activists saw marriage as archaic, then why the shift? Unless of course their successors came to see it could be used as a weapon to destroy their enemies. Gay marriage is about power for an angry minority representing two percent of the population, not love.

John Rossomando is an experienced journalist whose work has been featured in numerous publications such as CNSNews.com, Newsmax and Crisis Magazine. He also served as senior managing editor of The Bulletin, a 100,000-circulation daily newspaper in Philadelphia and received the Pennsylvania Associated Press Managing Editors first-place award in 2008 for his reporting.