The “Soft” Beginning of the Post-Obergefell Persecution

By Mat Staver & Keith Fournier Published on August 1, 2015

Two self-identifying lesbian women recently presented themselves to a Municipal Court Judge in Toledo,  Ohio, asking him to officiate their wedding. Judge C. Allen McConnell was on rotation under the local rules of court, which made him available for officiating marriages. He explained that he could not do so because of his deeply-held religious convictions. The couple was given another judge.

They got what they wanted, but that isn’t enough for Equality Toledo. They demand that the judge step down from the bench. The group is explicit about its goal to move “beyond marriage equality” and eliminate what they dismissively refer to as “so-called religious exemptions”:

We’ve already seen local judges refuse to perform same-sex weddings, and there are sure to be additional efforts to scale back our rights.  Our campaign to highlight the intolerance of some public officials will not cease.  We are committed to fighting for rules and procedures that ensure equal protection under the law, and we will not be intimidated by bigots who exploit religion to shield their intolerance.

Equality Toledo is a participant in what we call the “homosexual equivalency movement.” Led by organizations such as the Human Rights Campaign, this movement wants to construct a society whose law forces everyone to treat same-sex “marriage” as real marriage. With the Supreme Court’s Obergefell decision, they are emboldened. They will use the state and federal governments to enforce this new order.

Judge McConnell is a 71-year-old African-American and a Democrat, with a long record of service to the NAACP, the Urban League and the Legal Aid society. A lifelong participant in the civil rights struggle, he entered the legal profession — and worked to assist people in finding decent housing — because of his commitment to that struggle.

He is also well-known to be a devout Christian, a senior elder of the First Church of God who affirms the fact that marriage is only possible between one man and one woman. As a result, he’s caught in a wave of soft persecution against faithful Christians

A Soft Persecution

It’s “soft” persecution because it’s not directed explicitly against the Christian faith but against the practice of the Christian faith. The judge is ignoring the Supreme Court, the former field director for Why Marriage Matters Ohio told Toledo’s newspaper, The Blade. “Judges do not get to pick and choose what laws they will abide by and which ones they will not.”

In other words, these groups are saying, “He can believe what he wants. But he can’t act on his beliefs.” What is happening to Judge McConnell is the beginning of a strategy that will affect faithful Christians in every trade and profession. We’ve already seeing Christians forced out of commerce because they hold to the ancient understanding of marriage. Now, we face attempts to force Christians off judicial benches for the same reason. Where does this intolerance come from?

One source, which we speak to as constitutional lawyers, is the Supreme Court’s rejection of natural law. In the Court’s Roe and Doe decisions of 1973, the majority rejected the natural law human right to life — a right enshrined in the birth certificate of our Nation, the Declaration of Independence. The majority manufactured out of an “emanation” of a “penumbra” a profane counterfeit right to take the life of our youngest neighbors in the womb.

Since that decision, the court has applied its rejection of natural law to an expanding range of issues. Justice Anthony Kennedy tipped his hand in the Casey decision of 1992 when he wrote that liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” He repeated the claim in the Lawrence decision 11 years later. Kennedy’s claim is not only bad philosophy. Good philosophy begins with reality, not what you want reality to be. It’s the worst kind of legal positivism — the belief that the law is what the court says it is and the court can decide what the law is on any ground it chooses.

And now in Obergefell Kennedy engaged in what one of us recently described as judicial alchemy. Having held that everyone has the right to define existence for himself, he declared that everyone has the right to define marriage for himself. In effect, he abolished marriage by redefining it so that it includes relationships incapable of achieving its ends. Natural law tells us that marriage is the union of man and woman. The court now says it’s the union of any individuals to whom the court gives the right to be married. The court is wrong.

Time for Resistance

The attack on Judge C. Allen McConnell is not an isolated incident. It is a part of a movement that wants to compel adherence to same-sex marriage and drive anyone who disagrees with it out of public life.

Those who are engaged in this cultural revolution have a very different vision for the future of our country than we do. They push a competing vision of the human person, human dignity, human rights, and the nature of human freedom. Those who recognize the natural law know that marriage requires a man and a woman and expect the courts to recognize this. Those who reject the natural law have created a “right” to same-sex marriage that many of them believe requires taking away anyone else’s right to disagree — and they expect everyone to knuckle under.

Again, the “homosexual equivalency movement” isn’t attacking Christianity directly. It’s attacking the right of Christians to act as Christians in the public square. The leaders of that movement will be happy — for now — if they can neuter religion in public life. But what good is freedom if you can’t act on it? That’s not the religious liberty the Constitution guarantees.

In the weeks ahead, we will shine a light on the rising tide of anti-Christian persecution following Obergefell. Our hope is to put a human face on the injustice and thereby help to mobilize a response of civil resistance. Serious times require a serious response.


Mat Staver and Deacon Keith Fournier are the co-drafters of a Pledge in Solidarity to Defend Marriage, which has been signed by thousands of Christians across confessional lines, joined by faithful Jews and many other people of good will.

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