Justice Antonin Scalia

The death of Antonin Scalia this past week was not just sad news, it was scary news.

Scalia was a strong personality who sat firmly on the conservative side of the court. If President Obama succeeds in getting a nominee appointed to the court it will have a disastrous result in future decisions such as abortion, immigration, and gun control. But I doubt any of these would be the worst outcome of this turn of events.

The worst consequence would be in how the courts interpret the constitution. We have already seen a trend toward redefinition. But with the majority of justices moving in this direction we will see every one of our freedoms reduced to the solidity of Jello. Freedom of religion will be replaced by freedom of gender identity. (That is already moving foreward.) Freedom of the press will be replaced by a puppet media that promotes viewpoints instead of reports facts. (Oops, that one is already in the works, too.) Freedom of speech and the right to vote will be crippled first with poor information and later by constraints put into place to protect specific peoples. This will be closely associated with similar restrictions being put upon the right to assemble.

Scalia addressed this transition, already taking place, rather colorfully saying, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

Prior to that Abraham Lincoln put it this way, “The people—the people—are the rightful masters of both the congresses, and courts—not to overthrow the Constitution, but to overthrow the men who pervert it.”

Advertisement

Tyranny, Anarchy, History and the Supreme Court

Recently I had a writing friend comment on recent activity in the Supreme Court by referencing the historical foundations of this decision and others like it.

I have heard a few people bemoaning the trampling of state’s rights lately and it was good for me to learn more about the background of the discussion. Federalist vs. anti-federalists, Jefferson vs. Madison, and fear of tyranny vs. fear of anarchy; and it all led to the formation of our republic and our balance of powers.

But we don’t live in that world anymore. The public doesn’t know what is at stake, and generally doesn’t believe either tyranny or anarchy are possible in America today. So instead of walking the line between the two we are determined to fall off of it. Historically speaking we fell off in the direction of tyranny.

Funny thing is the tyrants in this case have used their autonomy to mandate anarchy, so we seem to have both instead of one or the other.

Religious Freedom and Homosexuality

Indiana has taken a huge amount of heat over its attempt to enact its own Religious Freedom Restoration Act. Similar to what happened here in Arizona, people started yelling discrimination, often without any respect for religious liberties.

Those who support the laws will quickly say the law is about religious freedom and not about discrimination. Those who oppose the law say it is veiled language to allow for discrimination against homosexuals. In Indiana the governor asked for additional legislation to clarify this point and to prevent the law being misused.

A similar situation in Arkansas makes a curious side note. The governor there said he changed his mind at the last minute and vetoed the law because his teenage son asked him to. If I was a voter in Arkansas I would ask the governor to explain why his son is more qualified to govern than he is.

In discussing the topic, I have heard it said that church leaders should have no say in these policies because it doesn’t affect them. They are given a ministerial exception in the laws. This argument is silly, creating an inequality between church leaders and church members. In my church I would like the membership and leadership to have the same religious freedoms. It is also obvious that their exception will soon be taken away.

A lot of this hoopla is based on a denial of reality. Conservatives want to protect religious freedoms, and try to pass RFRA or similar laws. But at the same time they try to align themselves as being against any form of discrimination. But the truth is you cannot have it both ways.

Religious freedom must include allowing a person to choose not to participate in something they find morally objectionable, not only as a private person, but also as a businessperson. Asking them to set aside their beliefs while conducting business is asking them to be a hypocrite. Incidentally I believe this should hold true for personal ideologies as much as for recognized religious perspectives.

Meanwhile the homosexual feels discriminated against if a businessperson does not want to serve them. They have very successful political forces seeking to make any such decision illegal. They have also controlled the dialogue of these encounters labeling anyone opposed to homosexuality as homophobes, defining in the public mind that homosexuality is genetic condition instead of a behavior, and defining sexual behavior as a greater good than religious freedom.

The path we are on ends with the courts ruling that all major world religions are historically wrong in regard to this issue and must change their doctrine. I don’t know for sure what the future holds, but I can tell you one thing about religious freedom. You will miss it when it is gone. Even if you are not religious, you will not like the world where the government determines the content of your conscience.

The Powerful New Court

Recently the Supreme Court made a subtle and important non-decision on gay marriage.

The non-decision happened like this. Alabama had a law banning gay marriage. It was voted into place by the majority of Alabama voters, but was then challenged and overturned by a federal judge. This decision will be brought up before the Supreme Court later this year, but in the meantime Alabama asked the Supreme Court to issue a stay preventing the issuing of marriage licenses to same sex couples until after the court decides.

The non-decision was refusing to hear and act on the request for a stay. Many have interpreted it as an indication the majority of the court is ready to rubber stamp anything and everything in regards to gay marriage.

This is not to say there are no dissenting voices. Clarence Thomas spoke strongly against the decision, and for my purposes against the implications of the non-decision.

He said the court demonstrates an “increasingly cavalier attitude toward the states.” He explained the federal courts fail to show “appropriate respect” to the states. He also reminds them they owe respect “to the people of those states who approved those laws.” He further said their behavior was formed “on questionable constitutional grounds.” And that their actions were “without any regard for the people who approved those laws in popular referendums or elected the representatives who voted for them.”

In other words, the Supreme Court, and courts in general, are expanding their power. But what will it mean for us all in the long run? We no longer have a representative government, but a shadow of one, more accurately guided by the supreme and uncontested power of the courts.