A Mild & Temporary Victory Over Gmarriage

Clear & Impermissible Hostility Toward Sincere Religious Beliefs

By William M Briggs Published on June 6, 2018

Well I’ll be dogged. The Supreme Court, led by (in)Justice Kennedy himself, said you don’t, at least sometimes, have to bake that cake. Here is the ruling (first printing).

Given this is (in)Justice Kennedy, the ruling is not a complete victory for sanity, reality and religion. But it is a partial victory. And considering Kennedy’s past “reasoning,” it is a delightful victory because few expected it.

I did not, predicting SCOTUS would punt and claim baker Jack Philips was in his rights refusing to bake a cake when gmarriage was at the time not recognized in his state. (Gmarriage is government-defined marriage, which is not actual marriage, which can only be between a man and woman.)

I was close, though. The court did say that “given the State’s position at the time [of not recognizing gmarriages], there is some force to Phillips’ argument that he was not unreasonable in deeming his decision lawful.”

It All Depends on “Some”

That reason was not decisive, though. Instead the majority ruled that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

Note carefully that “some.” That implies that religious and philosophical objections to fictional marriages are in some cases not protected forms of expression.

And just what might these extraordinary cases be, monsieur Kennedy? He never says. This leaves a gap wide enough to toss a three-tiered cake through. Kennedy’s watery language will encourage the bringing of suits by non-procreative-sex fanatics who are sure their situation is the exception that requires Christians to put a pinch of incense into the flames.

Kennedy’s feigned shock that non-procreative-sex activists used his original gmarriage decisions to disparage Christians is nauseating. All his talk of love and irrational animus guaranteed that they would fly at Christians with talons sharpened.

Of Two Minds

Thus his tut-tutting carries little weight when he writes:

[S]ome of [Colorados’] commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.

What? It was Kennedy himself who in Obergefell — the ruling that imposed gmarriage nationwide — implied that opposing gmarriage was hateful. You cannot blame State Commissions for following his lead. They thought they’d get away with it.

Still, he allowed himself to say:

The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.

All We Need Is Wuv

Maybe this is Kennedy staying with his love theme. But the Supreme Court, though it can impose gmarriage, cannot impose love. Still, he tries. “Our society,” he writes, “has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”

Kennedy has come to this recognition, not all of society. Two men are inferior in dignity and worth with respect to marriage compared one man and one woman. Maybe this is hurtful language. It is also true language.

Kennedy also wants to uphold religious freedom. He agrees clergy cannot be “compelled” to perform gmarriages. Yet he aches to “confine” this clerical “exception” (my emphasis) lest those enslaved to non-procreative passions suffer “serious diminishment to their own dignity and worth.”

Again, notice he defines as an exception holding to reality, and then only in the name of religion. Yet you cannot have it both ways. You can have what is true, or you must impose by constant threat of force a fiction.

The Lack of Free Association

The remainder of the Court’s opinions reflect this struggle to square the circle. Justice Gorsuch and Alito write separately about the obscure idea of the “mental state” of bakers as they complied or refused to sell sugared delicacies. This is all beside the point.

If the Court never abandoned freedom of association — with its implied freedom of disassociation — we’d never have to have these impossible debates. Now mine is a minority opinion, but consider that if there was true freedom of association, any baker could refuse any customer, and any citizen could refuse to buy any product (such as health insurance). The government would have never arrogated itself the “right” to impose gmarriage.

True freedom of association is dead. Even mentioning its revivification causes shrieks of terror. Why, remove compelled association, which is to say “anti-discrimination” laws, and slavery returns! Sigh.

Not even Justice Thomas (who wrote on free speech) recognizes the full import of the myriad laws banning “discrimination” based on “sexual orientation.” Compelled association based on “sexual orientation” will cause more rancor and lead to the loss of more souls than you realize.

As a parting thought, consider just what is “sexual orientation.” Desire for sex with your dog? Your sister? A child? Dead body? Roller coasters?

Scoff if you like, but wait and see.

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  • Almost every law and Supreme Court decision made since 1965 have been blatantly unconstitutional. Remember, the definition of “is” is “whatever five lawyers in black robes say it is.”

    • Ray

      Interesting comment. I should look into that. I remember one Jr. High school convocation on a Veteran’s Day when an elderly WW 1 vet prayed. The next day the principle made a sorrowful apology. It was depressing. Something good began to die, and I could feel it. This was back in about ’69.

    • John Connor

      Pure nonsense

  • John Connor

    Who is the author to say that two people in a same sex marriage are inferior in dignity and worth? Maybe the author is inferior to those he lies about. How pathetic.

    • Ray

      Maybe not in worth, for Christ died for all.

      • Inferior in worth because they cannot make babies.

        • John Connor

          Procreation isn’t and never has been necessary for marriage

          • We’re talking worth.

          • John Connor

            So am I

          • Willam Nat

            Seriously, what do atheists contribute to society. Let’s see—- negativity, depression, fear, despair, hatred, and in the cases of the atheist dictators of the 20th century, mass murder. And what do they contribute that’s good …. uh can’t think of anything.

          • John Connor

            Love you too. This atheist has dedicated the last 21 years to caring for critically ill children. People like you make me laugh.

          • Maltus Flavius

            Of what worth is that? What consequence or benefit does it have? Love is a concoction of the human imagination and therefore is worthless, just as suffering and happiness are, it just is, for tomorrow we die and no longer exist!

          • Nadie

            Yes, they are inferior. Not because of them. But because of being in a “same sex marriage” (in reality, this doesn’t exist as a squared circle does not exist: it is only two men having homosexual sex with regularity). The same way, when the State approves marriage of one person with his parent or with his dog, it won’t be marriage either.

            But you can delude yourself as much as you want living in a world of fantasy. You seen this kind of pathetic person. I will let you have the last word of intolerance towards those who don’t think like you. You have more time than me. I have a life to attend.

          • John Connor

            Laughable. Your opinion is just that…opinion without substance.

          • Willam Nat

            You didn’t say words without substance, you said opinion without substance. That’s not possible. Silly little atheist.

          • John Connor

            Awww. Silly little atheist. Love it. Poor snowflake.

    • m-nj

      Read the statement in context…. gmarriage IS inferior to real male-female marriage the same way a dream about a steak dinner is inferior to a real steak dinner… make-believe things ARE inferior to real things. gmarriage is not real marriage, so it is inferior.

      • John Connor

        Purely personal opinion. Gays can legally marry throughout the US. Your opinion of their marriages is as useless as cut off toenails

        • m-nj

          “legality” really has no bearing on “reality”.. but take it up with the Creator…

          • John Connor

            No such being. My parents created me.

          • Willam Nat

            No, their bodies made you? And who made them?

          • John Connor

            I’m an atheist. You’re going down a dead end street with the who made them nonsense.

          • Willam Nat

            Maybe that’s why you are an atheist. You do not have the ability to imagine the possibility that there is anything in existence that you cannot taste, smell or see. And you call anything that contradicts that “nonsense.” That’s rather like my two dogs who only understand what their physical senses detect. Although, of course, they can’t call anything “nonsense” like you can. You are superior to them.

          • John Connor

            I spent 18 years in the church. Spare me.

        • m-nj

          and i could respond back the same to your posts, “pure personal opinions”… it really only matters if your opinion lines up with THE TRUTH

          • John Connor

            You don’t seem to understand what truth is….

        • Ken Abbott

          “Purely personal opinion.” Self-evidently so, but what of it?

          “Your opinion of their marriages is as useless as cut off toenails.” As is yours, by this standard. Again, what of it? If everyone’s opinions are subjective and unimportant, why complain?

          • John Connor

            It’s a public forum. For someone to
            devalue another human is ridiculous

          • Ken Abbott

            “For someone to devalue another human is ridiculous.”

            Another opinion. Based on what standard?

          • John Connor

            Common decency

          • Ken Abbott

            I see. And would that be composed of more opinions?

            Let’s cut to the chase, Dr. Connor. You don’t actually believe that statements of value are mere opinions, for you clearly affirm some statements of value over others. But how do you determine what values to prefer over others? You refer to “common decency,” as if the majority preferences of a society provide the standard of moral behavior. But what if a society decided overwhelmingly that child rape was decent and acceptable?

          • John Connor

            When do you expect something so ridiculous to happen?

          • Ken Abbott

            Non-responsive, sir. And according to your sliding-scale definition of decency, what makes the possible acceptance of child rape “ridiculous?” Some societies have gone right along with planned famines, selective murder, even cannibalism.

          • John Connor

            You’re being overtly ridiculous

          • Stephen D

            If you are a champion of logic and reason, it’s time to admit Ken Abbott has got the better of you. Atheists commonly make moral assertions, but they carry no weight. The Bible offers believers a coherent, logical moral vision that carries weight. Secularists have nothing of the kind.

          • John Connor

            Nonsense

          • Ken Abbott

            Or, phrased differently, “I don’t like what you just said.”

          • John Connor

            No bible or religion is needed for a person to have a sense of morality. Partially innate and partially due to societal pressures, morality exists for everyone, not just the religious

          • Stephen D

            With respect – I mean that – you are still missing the point. Nobody disputes that a bible or religion is not needed to have a sense of morality. The problem is that unless you have a bible or religion you have no coherent, objective reference point for your moral perspective. All you have got is personal opinion.
            You can liken it to the law of the land. We cannot do without the law just because we have a sense of morality. The law sets an objective standard for behaviour in society.
            However our sense of morality tells us that there is a higher moral standard than the law. It is not personal opinion, obviously. Christians believe we have in the Bible a coherent, authoritative moral vision that stands above personal opinion.

          • Boris

            Bull. Atheists are the only moral people on the planet,

          • Ken Abbott

            Overtly (as opposed to covertly or subtly) ridiculous? Sad to say, no. Just following the argument where it leads (“‘εν δε φαει και ‘δλεσσου”). But you are still being non-responsive. The question remains: If m-nj’s opinions can be curtly dismissed as “useless,” why do yours deserve better treatment? The best you came up with is that you believe your opinion comports with “common decency,” and I am trying to ascertain exactly what the basis that such is either common or decent and what the criteria are for the latter. Because it seems to me that what it really comes down to is you advocate the opinion that *you* happen to like. And isn’t that just as unimportant as m-nj’s opinion?

          • Terry Lewis

            Perhaps a better question concerns something that society did, in large part, agree was moral not so long ago: slavery. Society’s acceptance of the abominable practice didn’t make it right, and eventually, we got around to condemining it. I call that real moral progress; but if there is no objective moral law, it’s only moral change.

            Likewise, it seemed that before SCOTUS imposed gmarriage, many states were opposed to such a thing, as reflected in the laws they made banning it. I’m certain that many of the defenders of gmarriage would hold that they were oppressive, discriminatory and, well, just wrong to do so. But that was the “common decency” of that society.

    • Terry Lewis

      That’s going to depend a lot on how you measure worth. What’s the standard of measure?

    • Tim Pan

      From the Christian perspective their relationship is only worthy of scorn. It is an abomination to the divine order.

      • John Connor

        Thankfully, not all Christians feel the same as you. You should reword your statement to say from your own perspective…

        • Tim Pan

          The bible is very clear on this perversion. And all those who reject the divine mandate are guilty of heresy .

          • John Connor

            I love it when Christians don’t agree. Too funny.

          • Tim Pan

            This is not a difficult issue. The Bible is very clear on its condemnation of homosexuality. The people who reject it are heretics. God’s laws are absolute. man kind has trouble with absolutes.

  • Trilemma

    This isn’t a mild and temporary victory over gay marriage. It’s a mild and temporary victory for discrimination.

    • Patmos

      I love your depth of understanding that you continually bring to this site. It’s almost as though you once read part of a Wikipedia entry.

      • John Connor

        I love that perpetual state of being offended that you portray on here. It’s as though you’re only 11 or 12 years old. smh

  • m-nj

    “Now mine is a minority opinion, but consider that if there was true freedom of association, any baker could refuse any customer, and any citizen could refuse to buy any product (such as health insurance).”

    Well, I join with you in the minority. Along with this being the basis of free association, it is also the basis of a truly free marketplace of products, services, and ideas. It should be no problem for a business to refuse service to someone who is a white male or a black woman. Discrimination is only an issue if the government does it.

    • John Connor

      So the blacks in the1950’s weren’t discriminate against when they couldn’t sit at the lunch counter? Wow.

      • Terry Lewis

        Government is not the answer to every problem. An improper over-dependence on government solutions is a path to certain chaos. That is not our birthright as Americans.

        Just as the government should create no law forcing segregation at lunch counters (as they did in the 1950’s South), the government should not force persons to associate. It’s none of the government’s concern whom I choose or refuse to do business with. That’s a basic first amendment principle that we’ve ignored for far too long.

        • Tim Pan

          So you reject the 14th amendment?

          • m-nj

            The 14th amendment has nothing to do with private or commercial “discrimination”. As I stated in the OP, the GOVERNMENT must not discriminate, hence equal protection UNDER THE LAW.

          • Tim Pan

            Private and commercial activities have to conform to the civil rights laws .when they do not they violate the 14th amendment of equal protection.

          • Terry Lewis

            Not technically true.

            The private/commercial entity would be guilty of violating the civil right law. The government would be guilty of violating the 14th amendment if it enforced the law unequally… say by demanding that a Christian with religious objections to gay marriage create a cake for a gay wedding, but refusing to require a gay baker to bake a cake for an anti-gay marriage rally.

          • Tim Pan

            The baker was targeted. The homosexual community how has complete protection under the pain of law. This act on their part was just the first wave of government sponsored terror against Christians. The supreme court recognized the seriousness of this targeting and shut it down.

          • John Connor

            Proof that the baker was targeted? You are pushing outright lies. Funny that you claim to be christian

          • Tim Pan

            .n

          • Tim Pan

            You would not know the difference between a lie and the truth.

          • John Connor

            So no evidence to put forward? Hmmm

          • Tim Pan

            If there is one thing I have learned by interacting with folks like you is there is no point. You reject any fact you disagree with , then humiliate the commentor.

          • John Connor

            If you feel humiliated by that comment, you shouldn’t be commenting on adult forums.

          • Tim Pan

            Thank you for making my point.

          • Terry Lewis

            I don’t see the relevance.

            14A is primarily, if not exclusively, concerned with the *government’s* treatment of individuals… not an individual’s treatment of other individuals.

            1A addresses and protects the citizen’s right to free association. If government can compel me to associate with you in business or in any other way, then that seems a violation of my rights to freely associate with those (and only those) that I choose.

          • Tim Pan

            14th amendment: “All persons born or naturalized in the United States and subject to the
            jurisdiction thereof, are citizens of the United States and of the State
            wherein they reside. No State shall make or enforce any law which shall
            abridge the privileges or immunities of citizens of the United States;
            nor shall any State deprive any person of life, liberty, or property,
            without due process of law; nor deny to any person within its
            jurisdiction the equal protection of the laws.”

            This is an equal protection issue.

          • Terry Lewis

            Equal protection *of the laws*.

            “No State…”
            “nor shall any State…”

            No reference to relationships between private citizens here.

            My contention is that government has no business compelling me to do business with anyone. Nor should they compel anyone to do business with me. That’s equal protection of the laws. Everyone is protected from being forced into a relationship they do not desire. And then they suffer the natural consequences, if warranted, of their choices, for good or ill.

          • Tim Pan

            I understand your position I am stating what the Constitutions says. Our opinion is our opinion but if it conflicts with the law they are meaningless.

          • Terry Lewis

            That makes no sense. Can we not think a law to be ill-conceived?

            My position, I believe, is thoroughly Constitutional. It may conflict with other laws. But that doesn’t mean my position is meaningless… it means I disagree with the law. By your definition, the position of the pro-gay-marriage supporters was meaningless until Obergefell. I disagree with that SCOTUS ruling, but I’d never claim that their position was inherently meaningless just because it disagreed with current law.

            Indeed, we could never argue for any new laws to be passed or old ones to be repealed if this were true.

            How can any law that compels an unwanted association be Constitutional when 1A protects and guarantees free association?

          • Tim Pan

            It is my opinion that the sky on a bright sun shiny day is red. But everyone will say to me it is blue. Nevertheless I say it is red. When we disagree with a supreme court decision it is the same idiotic contrast. I have no power in this realm. The supreme court is the final authority on any constitutional issue.

            Free association: ”
            In a series of three decisions, the Court explored the extent to which
            associational rights may be burdened by nondiscrimination requirements.
            First, Roberts v. United States Jaycees 213
            upheld application of the Minnesota Human Rights Act to prohibit the
            United States Jaycees from excluding women from full membership. Three
            years later in Board of Directors of Rotary Int’l v. Rotary Club of
            Duarte, 214
            the Court applied Roberts in upholding application of a similar
            California law to prevent Rotary International from excluding women from
            membership. Then, in New York State Club Ass’n v. New York City, 215
            the Court upheld against facial challenge New York City’s Human Rights
            Law, which prohibits race, creed, sex, and other discrimination in
            places ”of public accommodation, resort, or amusement,” and applies to
            clubs of more than 400 members providing regular meal service and
            supported by nonmembers for trade or business purposes. In Roberts, both
            the Jaycees’ nearly indiscriminate membership requirements and the
            State’s compelling interest in prohibiting discrimination against women
            were important to the Court’s analysis. On the one hand, the Court
            found, ”the local chapters of the Jaycees are large and basically
            unselective groups,” age and sex being the only established membership
            criteria in organizations otherwise entirely open to public
            participation. The Jaycees, therefore, ”lack the distinctive
            characteristics [e.g. small size, identifiable purpose, selectivity in
            membership, perhaps seclusion from the public eye] that might afford
            constitutional protection to the decision of its members to exclude
            women.” 216
            Similarly, the Court determined in Rotary International that Rotary
            Clubs, designed as community service organizations representing a cross
            section of business and professional occupations, also do not represent
            ”the kind of intimate or private relation that warrants constitutional
            protection.” 217
            And in the New York City case, the fact that the ordinance ”certainly
            could be constitutionally applied at least to some of the large clubs,
            under [the] decisions in Rotary and Roberts, the applicability criteria
            ”pinpointing organizations which are ‘commercial’ in nature,” helped
            to defeat the facial challenge. 218 “

          • Terry Lewis

            >It is my opinion that the sky on a bright sun shiny day is red. But everyone will say to me it is blue. Nevertheless I say it is red.

            You’re comparing an objective fact to a judicial *opinion*. You can’t impeach the sky because you think it’s red. We can impeach justices who abuse their office. No branch of government was ever intended to have “final authority” over the people. They work for us. They are our servants, not our masters. They are human, and sometimes they get it wrong.

            >When we disagree with a supreme court decision it is the same idiotic contrast.

            So we should stop fighting for the unborn because SCOTUS ruled in Roe v. Wade, and it’s “idiotic” to disagree?

            It was “idiotic” to disagree with their ruling in Dred Scott?

            I refuse to accept that my opinion is meangless just because 9 people in black robes make a mistake. The Constitution is not a difficult document to understand, and I have quite good reading comprehension skills. I may not be a lawyer, but the Constitution was written for the common man with a reasonable education.

            >The supreme court is the final authority on any constitutional issue.

            I don’t buy this. The same may be said of the other two branches of government.

            The three branches of government are co-equal. SCOTUS is not intended to be an oligarchy with the final say over everything that happens. (And in our litigous society, we’ve made EVERYTHING a Constitutional issue!)

          • Tim Pan

            I was talking about opinions. The definition of opinion: “a view or judgment formed about something, not necessarily based on fact or knowledge.” My point was the rulings of the supreme court are the supreme law of the land, until an amended opinion is rendered. I understand your frustration it is very Jeffersonian. Nevertheless the Court now has a commanding presence over the other two branches.

          • Terry Lewis

            On this, we agree… and we are worse for it!

            Blessings to you sir! I’ve enjoyed the conversation.

          • Tim Pan

            I as well sir! Thank you every much it was refreshing.

          • Up_Words

            Ever heard of Jury nullification? That’s where the jury feels that the law, in a particular case, is egregious. That’s the free exercise of citizenry discernment. Otherwise, we don’t need the court system, we only need robots (or AIs) to enforce our laws.

          • Mark Santucci

            The Constitution says that the government cannot discriminate. That is as it should be. Nowhere, though, does it say that the government may or should force private individuals not to discriminate; and it should absolutely not. To do so is an egregious violation of personal liberty.

      • m-nj

        Yes. And anyone who doesn’t like what a given business is doing is free to both protest (free speech) and take their business elsewhere. Then if/when the business changes practices, it is because it is in their best interests to do so, not because they were forced to do so by the government. Otherwise, they eventually go out of business.

  • Stephen D

    Regarding your last question on “sexual orientation”, note that the Princeton (im)moral philosopher Peter Singer has already gone on record as saying there is “nothing wrong” with people having sex with animals, provided the animal is a willing participant.

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