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Roe V Wade All Over Again

Yesterday the Supreme Court refused to hear appeals in so-called “same-sex marriage” cases coming out of Indiana, Wisconsin, Utah, Oklahoma and Virginia. In those cases, federal appellate courts had ruled in favor of various plaintiffs who argued that state constitutional bans against so-called “same-sex marriage” were some-how unconstitutional (presumably using the same iron-clad reasoning we saw coming out of the Roe decision) and now the Supreme Court has refused to hear the various State’s appeals to those decisions.

So we have various federal appellate courts this time making important social law instead of the Supreme Court, as it occurred back in 1973 with abortion, but the result is essentially the same – the people must not be allow to decide matters of moral law when their decisions conflict with liberal pieties.

What is to be done now? I am skeptical that even if a future appeals court rules in favor of common sense and decency and upholds a constitutional ban on so-called “same-sex marriage” the Supreme Court will uphold such a decision – I don’t think we can count on John Roberts. Therefore, from an immediate political need I think we need to pass as many robust religious protection laws as possible, both at the federal level and at the state level. Liberals will come after conservatives with a vengeance for preaching and teaching that marriage means something real (not just whatever the fad of the moment says it should be). They will want to ban us from the workplace, from schools, from government and we must fight back and let them know we refuse to give up on the truth.

We need to support Christian businesses that are willing to standup for their beliefs and make sure the law is not used as a weapon against them. We also need to start to fight back against companies that promote the gay agenda; as distasteful as boycotts and protests are to many conservatives (including this one!) we might need to start fighting fire with fire – if Mozilla fires their CEO for supporting the truth about marriage than switch to a different browser, if Chick-fil-A comes under attack for their Christian corporate culture, then buy more chicken sandwiches, etc. Christians have economic and political power – we need to start using that power in the service of truth.

Comments (31)

This is a very, very bad sign. If a lower court upholds something like Michigan's state constitution marriage amendment, the Supremes will _have_ to resolve the conflict. But this is a bad sign. I think that this is definitely a time for civil disobedience by individuals and a time for state governors to instigate a constitutional crisis at the state level. Interestingly, it is more difficult to envision any sort of gun battle arising out of a state governor's action here than in the case of Roe v. Wade. Here is the reason: If a state governor defied Roe and state troopers started arresting abortionists under a restrictive state law, the feds might send in marshals to liberate the abortionists. In this case, however, the injunction upon the states is _positive_ rather than _negative_. It is, "You must issue these marriage licenses" not "You must not lock up abortionists." Hence, if a state governor were to say, "This is nonsense. The constitution does not in any way mandate this. I hereby order all justices of the peace to refrain from issuing such licenses," and order that they be fired if they do issue them, nobody is being locked up in jail, and it is difficult to see what the feds would do. Come in and order JP's at gunpoint to issue state marriage licenses? That would go over really well!

I think this is definitely a time for governors and officials to stop turning themselves into robots: "Oh, a federal court says I have to endorse homosexual unions? Guess I'm just a robot, and I have to do that now."

Well said Lydia. Which is why it seems insane that we have a conservative Attorney General, in a conservative Midwestern state, doing the exact opposite of what you recommend:

In a statement (h/t The Indiana Law Blog), Indiana Attorney General Greg Zoeller (who had defended his state’s ban) indicated that, as a result of today’s orders, “the 7th Circuit now can issue a mandate in the [Indiana] case – essentially, an order that the 7th Circuit’s earlier ruling can take effect. Once a mandate is issued by the 7th Circuit – which could happen later this week – county clerk’s offices will be required by federal court order to issue marriage licenses to otherwise eligible same-sex applicants, and same-sex marriages previously granted by other states will be legally recognized in Indiana.”


Instead of that craziness, Zoeller should have huddled with Pence and issued a statement like this:

"Today the Supreme Court has declined to uphold the rule of law in the State of Indiana and hear our appeal. It is with a heavy heart that we are forced to conclude that the federal government is no longer interested in defending the institution of marriage and the people of Indiana are therefore on their own. We are ordering all county officials to ignore the federal 7th Circuit Court ruling and refuse to issue marriage licenses to any two individuals who are obviously not qualified to become married in the great state of Indiana. The voters of this state have already decided this issue and we refuse to pretend marriage is whatever a judge on an appellate court says it should be. If you want to play-act your marriage, we suggest you move to Massachusetts."

And Romney could have done the same thing in Massachusetts. In fact, I got the idea from hearing someone suggest it on a radio show right after the MA state supreme court issued its ruling. Their ruling was allegedly based on the MA state constitution, but it was also a travesty. If anything, it would have been easier, because then it wouldn't have been state vs. federal but state executive vs. state judicial over a question of interpretation of state constitution. All in the family, as it were. And Romney's defiance would have been an excellent precedent--pun intended.

This is why it was critical for Virginia to elect a good governor and attorney general in last year's election, instead of the jerks we got. The portion of the 2/3 of voters who mandated a state constitutional amendment for one man, one woman definition of marriage and then voted Dem last year basically sold their birthright for a mess of maggots.

We do desperately need multiple state governors to thumb their noses at the appellate courts, and publicly say to the Supreme Court "if you can't even take this seriously enough to render a decision, we aren't going to take the appellate decisions seriously enough to defy state constitutions, the limited enumeration of powers, and basic common sense."

I wouldn't be surprised if at least one state sends up a trial balloon of defiance, just to see what the reaction might look like, but it might actually be more harmful to have states do that and then fold when federal pressure is brought to bear.

Does anyone know how far immunity rules apply to state officials when they carry out the orders of their governor in defiance of appellate court decisions? If marriage officials comply with the governor's mandate that they obey state law, is there ANY federal offence that arises that they can't get out of by claiming immunity?

If marriage officials comply with the governor's mandate that they obey state law, is there ANY federal offence that arises that they can't get out of by claiming immunity?

It might depend on whether the federal court issued a court order to the official by name. "So-and-so is hereby ordered," etc., on pain of being arrested (by federal marshals? who else?) for being in contempt of federal court.

if Mozilla fires their CEO for supporting the truth about marriage than switch to a different browser

When this issue came up, I was amazed at how short-sighted most conservatives are. What "other browsers?" Chrome from insanely pro-gay Google? Safari which is an inferior Chrome from about equally pro-gay Apple or Internet Explorer from generally very pro-gay Microsoft? I am still amazed at the conservatives who switched to Chrome over this because that's going from bad to worse.

Peel back the covers and the vast majority of browsers besides these use one of the three main layout engines (Mozilla's Gecko, Microsoft's Trident or WebKit). There really isn't any alternative that is at least "neutral." However, Mozilla is at least a foundation and company focused on supporting browsers and other tools, not a for-profit company that is aggressively expanding its influence.

If you want to stick it to the big gay rights pushers here, switch to Firefox on Linux, replace your Android or iPhone with a Blackberry running BlackberryOS 10, install adblocker and switch to duckduckgo for search.

This is a very, very bad sign. If a lower court upholds something like Michigan's state constitution marriage amendment, the Supremes will _have_ to resolve the conflict.

Not necessarily. SCOTUS review of such things is discretionary. They could just let the split linger indefinitely.

I would be shocked if any state defied the feds, and if it did, defiance would be short lived. No need to send troops or bullets - simply withhold any federal funding in that state.

Mike T,

I now use Pale Moon. Vox recommended it. It's a good one, and pretty much apolitical.

simply withhold any federal funding in that state.

By what mechanism? A law? An "anti-Alabama law" or something? That would be a pretty fight to see. And since many of these are separate income streams, it would seem to require a separate law for Medicare, education, etc., etc. or else an omnibus "anti-Alabama bill." (I'm just naming Alabama randomly for illustration.)

Of course state defiance is unlikely, because everybody believes that we are drones and robots controlled by our Robed Masters in whatever court's ruling was last left standing--state, federal lower level, federal supreme. If some court ruling were left standing that we must carve and set up Mickey Mouse's image in stone in the state capital and institute worship services bowing down before it every day, I imagine most governors would order it done.

But the sensible thing needs to be _said_ even if no one is _doing_ it, if only for the sake of truth.

And as I pointed out, since what is ordered is *positive action*, this is a much simpler place to defy by simply sitting down and refusing to jump when they say, "Jump." Easier than a state's defying Roe by taking abortionists into custody.

It's been done before, by tying raising the legal drinking age to 21 with federal highway funds. Allow SSM to proceed (by law and practice), or no funds disbursed to Alabama. It would only take one or two programs to get the job the done - DOT most likely - Medicare/Medicaid affects voters more directly and individually, so not likely to be touched.

Anyway, I suspect the denial of cert by the SCOTUS to be Roberts trying to play chess again (saw how well that worked out with the individual Obamacare mandate). He likely correctly sees a SCOTUS majority would uphold the lower court decisions right now. What he doesn't seem to see is that it ain't gonna get any better for the foreseeable future. Or maybe he agrees with SSM. Who knows.

If Roberts was playing chess, it makes denial of cert a little more interesting. If I were a liberal justices leaning SSM, and I thought we had a majority on the SCOTUS, I would have granted cert to affirm the decision and make SSM law of the land. Maybe that means neither side is sure of a majority at this point (or the libs are concerned about the public reaction? - not something they usually care about).

Or they are hoping for a lower court to give them more ideas by ruling the opposite way.

Jeffrey S: "I don’t think we can count on John Roberts."

I'm so disappointed by Roberts. I was hoping that he'd be another Scalia.

Conservatives want a conservative Catholic on the bench!

I now use Pale Moon. Vox recommended it. It's a good one, and pretty much apolitical.

It's also just a slightly more than rebranded version of Firefox.

Regarding boycotts, I would strongly recommend switching to DuckDuckGo. It's great for most basic searches and it's a tiny company which pulls most of its employees from its community (it's also an open, extensible product with its code open sourced). When you have to use Google, do so with AdBlock enabled. (To disable Google's ads, open AdBlock's preferences and deselect the option to allow "non-intrusive ads.")

I've heard that Roberts illegally adopted two Irish children with his wife and that the Obama regime is more than willing to use this against him when necessary. And this is how we got the Obamacare ruling. Believe or don't believe it. But there is no doubt about where things are headed. Though I suppose all the sensible intermediate steps suggested in this thread need to be at least mentioned before we get there.

Kevin DeYoung says

"Who decides who marriage is? God. Marriage is a prepolitical institution. Government has a vested interest in recognizing certain relationships as marriage; but government does not create what marriage is. And if in the name of liberty we give to the government the right to redefine words and redefine God's design, we cede to the state a vast amount of power."

Historically the Church regulated marriage. The problem with this is we are post Enlightenment and lack a religious consensus.
New England Puritans believed the civil state should acknowledge Christ as King and the Ten Commandments as the foundation of civil law. The New England Puritans denied the sacramental character of marriage. The magistrate and other civil authorities were responsible to God directly; not through the clergy and other ecclesiastical authorities. Marriage was, for these New England Puritans, a civil institution. A God ordained civil institution to be sure, but still a civil institution that is sealed by a civil contract.
In our post Enlightenment society this has led to marriage being relegated to being a civil contract which led to state regulation of the family unit.

It is not problematic for marriage to be treated as *one type* of civil contract, provided that the government recognizes that it is a special kind of contract and deserves special treatment, which has in fact been the case for more than two hundred years in America. Marriage has a rightly privileged status in American law and has been recognized as solely between one man and one woman. There is nothing inherently unworkable or unstable about this in a non-confessional state, because an understanding of the nature of marriage is available by the natural light. It is not something that absolutely requires special revelation to know.

Both Kevin DeYoung's quotation and Lydia's comment are excellent.

There is no difficulty in admitting marriage to the category "contract" and still allowing that it is pre-political. Many social things can be pre-political that are real, and agreements in general fall into that: you don't need the back-drop of "the state" to have 2 people make an agreement to do something - an agreement regarding mutual obligations. Even if you accept the "social contract" theory of the state (which I don't) you should have no problem accepting that there can be a form of agreement that arises prior to the social contract of the state. The state isn't the prior cause of "agreements" to have reality.

Marriage happens to be one form of agreement that is prior to the state. It is, also, a form of agreement whose content is so engrossing, so encompassing for the parties to the agreement, that any state that would try to ignore the agreement and pretend that it is an irrelevancy to social interactions would be an insane state. The state can no more ignore marriage than it can ignore people using force to accomplish their own personal notions of justice on each other.

If marriage is prior to the state and the government MUST notice marriage in order to function well, the state ipso facto must recognize the agreements as being agreements, i.e. contracts of a certain form. It cannot, for example, decide that the agreement to enter marriage is slavery (i.e. by force), nor decide that the agreement doesn't in any sense generate obligations. Such decisions by the government would put the cart before the horse: the government doesn't own society, society doesn't exist for the sake of the government. Hence the government cannot lay claim to any and every aspect of social interaction. And this is one of the most important areas where the government runs into a limit: the nature of society is that of families that interact, and so the family (and thus marriage) is logically and causally (materially) prior to the government. For the government to attempt to undo the meaning of marriage and the family is tantamount to the government attempting to choose for itself the very subject matter of which it has jurisdiction - like a man cutting off his own legs to make himself lighter so he can jump higher.

Parenthood is another example of the type of thing Tony is talking about, I think. My natural custody over my children is not rendered "a creature of the state" by the fact that the state _recognizes_ it and _admits_ it in cases of dispute. For example, if my (hypothetical) strange cousin Vinny kidnaps my child, the state brings my child back and punishes Vinny, even though he is a relative, because it recognizes that my custody as the child's mother is real custody, but Vinny's connection to the child is tenuous at best. The fact that there are written laws about these things (what constitutes kidnaping, how "parent or legal guardian" is defined) does not mean that the state _owns_ parenting or that the state has ipso facto some sort of absolute control over parenting.

Similarly, that a non-confessional state _recognizes_ marriage does not mean that it has ipso facto some sort of sweeping regulatory power over the family unit.

It's all over. We live in a hell-hole and it ain't going to get better. We are as a turd in the toilet bowl and all it does, is go down faster and faster into the hole. You ain't going to stop it.

You're talking about politicians have to do this or that.

Where are the American Catholic Bishops? I haven't heard a one! To expect a politician to do something when the Bishops don't say a thing--well, it ain't going to happen.

Political Correctness, which is cultural Marxism, has a stranglehold on not only the political sphere but in the educational sphere. Hell, Political Correctness is in Catholic Colleges and Schools. Kiss your ass goodbye.

The hand writing is on the wall. It was when Franco's Spain collapsed into a leftist hellhole. If Catholic Spain can't stand up. If Catholic Italy can't stand up---what makes you think Gnostic/Masonic America is going to do?

America has become the two things God hated the most in the OT--the Tower of Babel and Sodom and Gomorrah. America is both of those things. It is over. Kaput. Finito. Sianora. We haven't even solved abortion and you think we are going to end sodomatic marriage. America is done and overwith. And that we haven't even closed air traffic to ebola infected countries? This country is an idiocracy and getting worse!

I hate to say it, but I am closer to Lindsay Wheeler on this. This imposition of homo "marriage" by the courts is the best we can hope for because it allows us to pretend that this has been imposed by unelected black-robed kings, instead of accurately reflecting the trajectory of a degenerate civilization.

Calling it "homo marriage" doesn't help. Surely we can be more skillful with our secular blasphemy. (Pardon, Scomo, this isn't directed at you. I just see this often, and I think it's a bad idea.)

That said, there's one advantage to this state of affairs, noted by someone else. We're not dealing with people who merely want to -allow- gay marriage. They demand respect for it. Which is fantastic, because it draws a clear line in the sand: we have some nice secular idols to openly mock.

Though we should do it with humor. Let's laugh at it, let's not take it seriously. Hard to do that and also avoid coming across as mean - it's a fine line, but I think it can be done.

Mike T,

Exactly! If you like Mozilla, you pretty much get to keep it but without supporting the company itself.

Kevin DeYoung is insightful:

Marriage as a contract is difficult for the liberal state to adjudicate because the presumptions of marriage are anathema to marriage. Marriage is intrinsically hierarchical, authoritative and indissoluble by those who wish to exit. When children get in the picture, marriage also creates real authority that challenges that of the state where the family is concerned.

As to John Roberts, I don't think he will matter much if this issue goes before the Supreme Court. The four leftists and Anthony Kennedy - who wrote the Windsor decision throwing out the Defense of Marriage Act, which set off the current avalanche of pro-SSM decisions - are all sure votes to read a right to same-sex marriage into the Constitution. That's five, without Roberts.

djf, I suspect that you may be right that Kennedy would vote for SSM being required by the Constitution, but there are some SCOTUS scholars who are not so sure. They think they see in Kennedy something more of a libertarian, who at least in theory could rule that SS relationships (i.e. sodomy) cannot be illegal but that nothing in the Constitution requires treating SSM marriage on an equal footing with real marriage. There is, at least for some purposes, a real difference between the state ruling something illegal and the state granting privileges for doing something.

What is more interesting here is that SCOTUS has to have 4 of the 9 justices to choose hear a case. Since (at least normally) all the justices vote on whether to hear a case, we pretty much have to assume that if this case could not get 4 votes to hear, then 6 justices voted not to hear the case. Even if we assume the 4 flaming liberals and Kennedy voted against, that still means at least one of the not-so-liberals voted the same way. Could have been Roberts, I suppose. But I have heard some people speculate on whether some of the conservative justices would refuse to hear the case until at least one of the federal appeals courts ruled the other way, so they could work off a bona fide dispute at the appellate level. Or possibly that they were looking for a better set of facts or a better formulation of the argument, or a better-worded state constitutional provision. Who knows? The justices are usually tight-lipped about it, though I would expect to see some details surface years down the road in one or another of the justices' books about the court.

That's five, without Roberts.

SCOTUS has to have 4 of the 9 justices to choose hear a case.

Which is why it still strikes me as odd that cert was denied. There are still some states banning gay marriage. If there are five without Roberts, and it only takes 4 to grant cert, why not grant, uphold the lower court(s) overturning bans, and bam, it's Miller time! All 50 done. It is not common to grant cert on cases you would uphold, but it is also not unprecedented (pun intended). Seems that progressives usually strike when in power, so why the apparent hesitancy in this case?

Could be that the liberals don't feel certain they will get Kennedy's vote that a state ban on gay marriage is unconstitutional. So maybe they are biding their time until the practice is well entrenched in most states? Maybe waiting for 6 or 8 of the appellate courts to vote their way?

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