Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part IV of V)

by Matthew Steven Bracey

In part III, we continued looking at religious liberty, looking specifically at how it’s threatened and what we can do to defend it. In this post, we’ll continue with the separation of powers, federalism, and the rule of law.

 The Separation of Powers and Federalism

 As with religious liberty, we also should recognize the importance of the principles of the separation of powers and federalism. The American founders knew the dangers that come from a government with too much power. As Lord Acton said: “Power tends to corrupt, and absolute power corrupts absolutely.”[1]

In Articles 1–3, the Constitution provides for three branches of government: legislative, executive, and judicial. Each of these branches has distinctive roles and responsibilities, and each of these branches should act as a check and balance over the other two branches.

The legislature makes laws and not the executive or judicial branches—“we the people” and not “he or she the president” or “they the justices.” The judicial branch’s proper role is, with laws, to hear and interpret them. It doesn’t make them, or shouldn’t.

And yet in Obergefell, the Court’s majority acted like a legislature.

In his dissent, Chief Justice Roberts notes, “This Court is[n’t] a legislature. . . . The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’. . . . [The founders] would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.”[2] The separation of powers is being threatened.

The same is true with federalism. Like the separation of powers, it protects against too much power. Federalism doesn’t refer to a preference for a stronger federal government. It refers to the balance of power shared between the federal and state governments.

Whereas the separation of powers divides power among three branches, federalism divides it between two governing bodies—in this case, the federal and state. Power split three ways over multiple governing bodies has less chance of abuse than power too heavily concentrated in any one branch or government.

The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[3] So governmental power is supposed to be shared. It’s not supposed to be centralized.

Not only does federalism protect against the corruption of power. It also allows for different people with different beliefs to live together. That’s kind of the point. In his Obergefell dissent, Justice Alito says,

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, [it’s] likely that some States would recognize same-sex marriage and others would not.[4]

However, the majority of the Court didn’t apply federalism. They didn’t leave it to local communities and states. Justice Alito continues, “By imposing its own views on the entire country, the majority [helped] marginalization of the many Americans who have traditional ideas.”[5] Many voices in our culture echo the majority’s sentiment.

In response, we should note the importance of the separation of powers and federalism. As we find ourselves in a voting booth, we should vote for those who honor these principles best. As we find ourselves in conversation with others, we should lovingly and winsomely show how these concepts best protect their liberty.

The Rule of Law

Another important principle that guards against the abuse of power and protects the liberty of the people is the rule of law. The rule of law refers to the belief that the law is king, as Samuel Rutherford put it.[6] It just means that nobody gets special treatment.

The rule of law finds its basis in God. Because God is holy, He is just. And because God is just, His rule is[n’t] arbitrary, but fair and predictable. God’s law is a reflection of God’s person, and God’s judgment is consistent with that. The rule of law, then, is a very Christian idea. And we should recognize its importance for a society.

It means that no one’s above the law—not legislators, not executives, and not justices. America’s founders emphasized this principle. They’d served under a king who hadn’t respected the rule of law. They’d experienced firsthand the abuses that follow from its disregard.

To protect this principle, the Constitution should be interpreted according to its intent. Laws should be interpreted by their original, ordinary meaning. A law means what it does when it’s written. It doesn’t change according to the whims of the culture or justice.[7]

“What if a law is unjust? Shouldn’t judges change them?” If a law is bad or unfair, the people can change it through the democratic process. Justice Scalia said this,

Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine . . .  judges who[’ve] been there too long, imposing the[ir] demands on society. A system of government that makes the people subordinate to a committee of nine unelected lawyers does[n’t] deserve to be called a democracy. [8] [9]

Well, like these other concepts, the rule of law is threatened in our own day. When government leaders disregard the law they don’t like. Enforce ideas that run contrary to the actual law. Interpret the law to mean what it doesn’t actually mean. When these things happen, the rule of law is on shaky ground.

And this is what’s happened in Obergefell. Justice Alito says, “Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.”[10]

In the last few months, the FBI’s investigation of a likely presidential nominee has also reminded us how the rule of law, and the consistency of its application, is being threatened.

Why is the rule of law so important? What can happen if it’s disregarded? The rule of law establishes consistency, predictability, and stability. It protects ordinary citizens. Like you and me. From a government leader’s unfair use of the law.

Whenever a nation, state, or locality would change the law, it should do so through just means. The failure to respect the rule of law results in inconsistent laws, unpredictable standards, and civil instability.

As with the separation of powers and federalism, the rule of law guards against the abuse of power and protects our rights. We should recognize its importance. Not just as a legal principle but a Christian one.

Again, it should shape the way we think about laws and policies, societies and governments. It should impact how we dialogue about current cultural and political events with our family, friends, and coworkers. And it should influence the types of government leaders we support.

We’ll conclude this study in part V, which will consider the principles of democracy and liberty.

 ___________________________

[1] “Letter from John Dalberg-Acton to Bishop Mandell Creighton, April 5, 1887,” in John Neville Figgis and Reginald Vere Laurence, Lectures on Modern History (London: MacMillan and Co., 1906), Online Library of Liberty: A Collection of Scholarly Works about Individual Liberty and Free Markets, http://oll.liberty fund.org/titles/acton-acton-creighton-correspondence#lf1524_label_010; April 19, 2016; Internet.

[2] Obergefell, 576 U.S ___ (Roberts, dissenting), at 2, 25.

[3] U.S. Constitution, amend. X.

[4] Obergefell, 576 U.S ___ (Alito, dissenting), at 7.

[5] Id.

[6] See Samuel Rutherford, Lex Rex (1644) (Edinburgh: Robert Ogle and Oliver & Boyd, 1843).

[7] See E. D. Hirsch, Jr., Validity in Interpretation (New Haven: Yale University Press, 1967).

[8] Antonin Scalia, “The Originalist,” California Lawyer; quoted in Emily Conley, “7 Masterful Quotes That Sum Up Former Supreme Court Justice Antonin Scalia’s Approach to Life and Law,” Alliance Defending Freedom, February 15, 2016; https://adflegal.org/detailspages/blog-details/ allianceedge/2016/02/15/7-masterful-quotes-that-sum-up-former-supreme-court-justice-antonin-scalia-s-approach-to-life-and-law; accessed April 5, 2016; Internet. See also Obergefell, 576 U.S ___ (Scalia, dissenting), at 2.

[9] Obergefell, 576 U.S ___ (2015) (Scalia, A., dissenting), at 5.

[10] Id. (Alito, dissenting), at 7.

Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part III of V)

by Matthew Steven Bracey

In part II, having considered how we’ve gotten to the state in which we find ourselves in part I, we began asking where we go from here, and considering religious liberty in particular. We’ll continue that with this post.

Religious Liberty Threatened

Chai Feldblum said, “There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win.”[1]

Many Christian voices have sounded the alarm. Robert George writes, “In the name of ‘marriage equality’ and ‘non-discrimination,’ liberty—especially religious liberty and the liberty of conscience—and genuine equality are undermined.”[2] Russell Moore remarks, “Religious liberty is genuinely imperiled, perhaps more than at any time since the revolutionary era.”[3]

In his dissent in Obergefell, Chief Justice Roberts wrote, “Today’s decision creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution.”[4]

Make no mistake, friends, religious liberty is in trouble. And it’s slowly being taken away. What will this mean for our children and our grandchildren if we don’t do something?

Religious liberty isn’t simply the right to teach our religion or to hold it in the privacy of our homes. It includes the freedom to exercise our religion in society, in business, and so forth. “Congress shall make no law . . . prohibiting the free exercise” of religion.

However, a Supreme Court that requires states to recognize same-sex marriage results in a conflict for people who want to exercise their First Amendment religious liberty rights.

Justice Thomas also talked about this in his dissent. He says that the majority’s opinion “makes only a weak gesture toward religious liberty in a single paragraph. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition.”

He explains that religious liberty is

about more than just the protection for ‘religious organizations and persons . . . as they seek to teach the principles [of their faith].’ Religious liberty is about freedom of action in . . . religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.[5]

Well, this is the same thing Jefferson said. When Justice Thomas echoes Jefferson, and yet finds himself in the dissent, we have a problem.

If the chances of incurring civil limitations or restrictions increase as a result of practicing your religious beliefs, the less religious liberty you have. And the more religious liberty is being threatened and destroyed.

This was illustrated when, following Obergefell, Kim Davis, a county clerk in Kentucky, was jailed for defying a court order when she refused to issue same-sex marriage licenses, which she said violated her religious beliefs.

We’re seeing similar conflicts on related issues on the state and local levels. What happens if you or someone you know is a public servant and refuses to issue a same-sex marriage license on account of his or her conscience?

What if you or someone you know is a baker, bed and breakfast owner, florist, photographer, or a wedding venue owner and declines to accommodate same-sex couples?

What if you or someone you know is a church planter, and the city refuses to grant you equal access to rent public properties? What if it attempts to regulate your policies regarding marriage or compel you to submit sermons that make reference to homosexuality or gender identity?

What if you or someone you know is in upper management, and the government attempts to require your company to cover contraceptives and drugs to induce abortions? These possibilities, and many like them, aren’t far-fetched. They’re affecting us, our families, our congregations, and our cities.

Defending Religious Liberty

What, then, can we do? We reeducate ourselves about religious liberty. We learn how religious liberty is rooted in Christianity and good for societies.

Moore reminds us that it’s a gospel and church issue: “Religious liberty is as much about children’s Sunday school as it is about the Supreme Court—indeed more so. If we’re going to claim a future for liberty, we must remember why we have it: for the gospel and for the advance of the mission.”[6]

We observe how the voices of the past can help us in this endeavor.[7] We see the good sense in it, and we commit ourselves to it. “Just expressing our opinion is[n’t] enough. We are called to take a stand.” [8] We don’t do any of this by ourselves, but with people in community. This can take place in all kinds of situations.

Perhaps we discuss religious liberty with our families over the dinner table. Perhaps we do it with our churches in Sunday school or a small group. Perhaps we do it in our workplaces around the proverbial water cooler or over lunch.

Perhaps we defend religious liberty by voting on laws and candidates that best honor it. I hardly think that a likely presidential nominee who says that Obergefell was a good start, but that we’ve a long way to go, cares much your religious liberty or mine.

Perhaps we sign petitions or manifestos, write letters to local newspapers and representatives, protest peacefully, volunteer or work for appropriate candidates, or even run for a political office.

Whatever we do, we must do something.

In part IV, we’ll pick up with the topics of the separation of powers, federalism, and the rule of law.

________________________________

[1] Maggie Gallagher, “Banned in Boston: The Coming Conflict Between Same-sex Marriage and Religious Liberty,The Weekly Standard, May 15, 2006; http://www.weeklystandard.com/ Content/Public/Articles /000/000/012/191kgwgh.asp?page=3; accessed October 21, 2015; Internet.

[2] Robert P. George, “Marriage, Religious Liberty, and the ‘Grand Bargain,’” Public Discourse, July 19, 2012; http://www.thepublicdiscourse.com/2012/07/5884/; accessed October 21, 2015; Internet.

[3] Moore, 150.

[4] Obergefell, 576 U.S ___ (Roberts, dissenting), at 27.

[5] Id. (Thomas, dissenting), at 15–16; ellipses in original.

[6] Moore, 153.

[7] Some of these include Thomas Helwys (c. 1575–c. 1616), John Murton (1585–1626), Thomas Hooker (1586–1647), Roger Williams (c. 1603–1683), William Penn (1644–1718), Thomas Jefferson (1743–1826), and James Madison (1751–1836).

[8] Timothy George, “Let Religious Freedom Ring: Why It’s One of the Most Pressing Issues Today,” First Things, June 30, 2014; http://www.firstthings.com/web-exclusives/2014/06/let-religious-freedom-ring; accessed October 21, 2015; Internet.

Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part II of V)

by Matthew Steven Bracey

Part I of this five-part series adapted from Matthew Bracey’s Convention presentation at the Theological Trends seminar can be accessed here

In part I, we introduced some of the legal and religious liberty implications facing Christians today. In particular we considered how we’ve gotten to the state in which we find ourselves, both social and legal developments. In this post, we’ll consider what we do in response, and we’ll begin looking at religious liberty.

Where Do We Go From Here?

This conversation about how society to treat LGBT peoples is occurring everywhere. It takes place in all three branches of both federal and state governments. It shows up in laws and policies.

We find it at our workplaces, around the water cooler, and in our churches. We hear it from airlines, businesses, and sports teams.[1] We see it in movies and television shows, and we read about it in newspapers and books—for adults and children alike. We even learn about it in public schools, all the way down to kindergarten and preschool.

We must face this issue squarely and equip our churches and congregants in biblical discipleship. We need to see how the civic and religious principles that our civilization is built on—the ones we’re getting ready to discuss—are being threatened. As we’ll see, many of them are informed specifically by Christian teaching.

 We need to reeducate ourselves in them so that we begin to think about we can stop this. How do we do this? We can begin by informing ourselves about the topics discussed in this presentation.

This could take place by talking with others or by listening to a podcast. We can read books with a small group or teach through them to a class in church. (Several examples are listed at the end of this chapter.)

We can learn how to work them into our points of illustration and application as we teach and preach God’s Word. However, this requires us to know how the Bible’s teaching shapes these legal principles and what they are.

Together we can build a church culture that knows about these principles, takes them seriously, and can see how they fit within a Christian worldview.

Religious Liberty

As Christian leaders, we should work to reclaim a confidence in God-given, Constitution-affirmed religious liberty. We should know how to defend it when it’s threatened—and it is. This means we should know what the Bible, the Baptist tradition, and American heritage say about religious liberty.

Defining Religious Liberty Theologically

Religious liberty says the inherent dignity of all people. This means that everyone has a God-given right to practice his or her religion without fear or coercion. It finds its basis in the nature of God, the image of God in humankind, and the incarnation of Jesus Christ.

God created man in His image (Genesis 1:26–27). And He created them with a religious conscience and the power of choice (Joshua 24:15; 1 Corinthians 10:27–30; 1 Timothy 1:5). This quality within men and women reflects something about God’s very nature.

This was made evident in the incarnation of Jesus Christ, the very image of God (Colossians 1:15; Hebrews 1:3). Jesus didn’t coerce or force His teaching on people. He taught, asked questions, and respected people’s choice of conscience. Free choice. Free will.

Paul instructed that we walk “by the manifestation of truth commending ourselves to every man’s conscience in the sight of God” (2 Corinthians 4:2).

As a result, we should defend the right to religious liberty of both Christians and non-Christians alike. This is what the Bible teaches. And it’s what Baptists have taught.

Thomas Helwys founded the first Baptist church on English soil in the early 1600s. America’s first Free Will Baptists were some of Helwys’s direct spiritual descendants who had migrated to the American colonies in the late 1600s

Well, Helwys said that rulers and states don’t have authority over the consciences of their subjects or citizens:

Men’s religion to God is between God and themselves. The king will not answer for it. Neither may the king be judged between God and man. Let them be heretics, Turks, Jews, or whatsoever, it does[n’t] [concern] earthly power to punish them in the least measure. This is made evident to our lord the king by scriptures.[2]

We hear this same point from Christians today. Eric Metaxas writes, “For good or for ill, the Christian faith is the one faith, more than any other, that encourages intellectual and religious freedom. True Christians throughout history have [always protected] the religious liberty, not just of Christians, but of non-Christians too.”[3]

Or Russell Moore says, “The gospel goes forward not through manipulation or coercion, but through the open and persuasive proclamation of the gospel as a conscience to a conscience (2 Cor. 4:2).”[4]

This means that governments shouldn’t coerce religious belief against someone’s conscience.

It also means (as we’ll note below) that governments shouldn’t require something of us that would cause us to violate our religious beliefs. Whether in the home, the workplace, or the marketplace.

In either case, the government has offended religious liberty.

Defining Religious Liberty Legally

America’s founders also talked about religious liberty. For example, Thomas Jefferson wrote that all people “are endowed by their Creator with certain unalienable rights.”[5] Among these is religious liberty. Or what he called religious freedom. Which he described as the “natural rights of mankind.”[6]

He said, “Almighty God ha[s] created the mind free.” No one should “suffer on account of his religious opinions or belief, but that all men shall be free to profess, and . . . maintain, their opinions in matters of Religion.” [7]

(Mmm. Increasingly are we more or less free to exercise what the Bible teaches without suffering for it?)

Jefferson also said that our religious beliefs should not “affect [our] civil capacities,” positively or negatively.[8] This means the government shouldn’t reward or punish us for how we let Christianity inform our family lives and business practices and so forth.

(Mmm. Can you think of anyone whose businesses or livelihood is being affected negatively because of their Christian beliefs? I listed many examples in the introduction of part I.)

And of course we have the First Amendment: “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”[9] Now, sometimes people get confused about what the Establishment Clause is supposed to mean.

It doesn’t mean that your religion can’t have any bearing on the law or society or culture. All it means is the institutional separation of church and state. This just means that America shouldn’t have an official state church, like the Church of England or the Russian Orthodox Church.

But the institutional separation of church and state doesn’t mean the separation of morals from the public square or religion from public life. That’s what the Free Exercise Clause is all about.

Russell Moore explains that the separation of church and state “does[n’t] mean the division of religious people from citizenship. Citizens come to decision-making, and culture-makers come to culture-making, with their consciences formed somewhere and by something.”[10]

Throughout American history, citizens have allowed their religious convictions to inform their views of law and policy. And so can we! “There’s “no conflict between loving God and loving one’s country, between one’s faith and one’s public service.”[11] By all means, let your religious opinions inform how you think about life and the law and so forth.

Still, some ask where exercising religious liberty ends and imposing one’s religious viewpoints begins. That’s a good question, but it misunderstands religious liberty. As well as the nature of law and policymaking.

Religious liberty gives people the freedom to hold and exercise their religious beliefs in society. It’s not the imposition of one person’s views on another.

Besides, all laws and policies reflect some value of one sort or another. The question remains as to whether that something is a good or bad thing, and whether it honors religious liberty for all.

So religious liberty is about more than the freedom of belief in the privacy of your home. It allows those beliefs to follow you in your public life. It’s “the right to live out the teachings of your faith in every single aspect of your life.”[12]

And yet, despite the Biblical and constitutional importance that religious liberty has had, and that it should have for us, it’s being threatened.

In part III, we’ll pick up with the topic of religious liberty, considering how it’s being threatened and what we can do about it.

_______________________________

[1] For example, the following companies are just some of those that praised the Obergefell ruling: American Airlines, AT&T, Cheerios, Coca-Cola, Delta, Jell-O, Kellogg’s, Macy’s, Mastercard, Netflix, Old Navy and Gap, Pepsi, Sears, Starbucks, Target, Tide, Visa, Whole Foods, and YouTube.

[2] Thomas Helwys, A Short Declaration of the Mystery of Iniquity; in The Life and Writings of Thomas Helwys, ed. Joe Early, Jr. (Macon: Mercer University Press, 2009), 209.

[3] Acton Institute for the Study of Religion and Liberty, “Defending Religious Liberty: An Interview with Eric Metaxas”;http://www.acton.org/pub/religion-liberty/volume-22-number-2/defending-religious-liberty-interview-eric-metaxas; accessed October 21, 2015; Internet.

[4] Russell D. Moore, Onward: Engaging the Culture without Losing the Gospel (Nashville: B&H, 2015), 145.

[5] Declaration of Independence (U.S. 1776); http://www.archives.gov/exhibits/charters/declaration_ transcript.html; accessed January 23, 2016; Internet.

[6] Ibid.

[7] Thomas Jefferson, “Virginia Act for Establishing Religious Freedom,” January 16, 1786; http://www. heritage.org/initiatives/first-principles/primary-sources/virginia-act-establishing-religious-freedom; accessed October 21, 2015; Internet.

[8] Ibid.

[9] U.S. Const., amend. 1.

[10] Moore, 142.

[11] Paul Scalia, “Transcript: Rev. Paul Scalia’s Eulogy for His Father, Justice Antonin Scalia,” USA Today, February 20, 2016; http://www.usatoday.com/story/news/politics/2016/02/20/ transcript-rev-paul-scalias-eulogy-his-father-justice-antonin-scalia/80667122/; accessed April 5, 2016; Internet.

[12] Marco Rubio, CPAC2016, National Harbor, MD, March 2–5, 2016.

 

Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage (Part I)

by Matthew Steven Bracey

 *This five-part series is adapted from Matthew Bracey’s presentation, “Legal and Religious Liberty Implications of the Supreme Court Decision on Same-sex Marriage,” Theological Integrity Seminar (presentation at the annual meeting for the National Association of Free Will Baptists, Kansas City, Missouri, July 17-20, 2016), which itself is adapted from chapter five, “Same-sex Marriage and Christian Citizenship,” in Sexuality, Gender, and the Church: A Christian Response in the New Cultural Landscape (Nashville: Welch College Press, 2016), which readers can order by emailing order@welch.edu

_______________________

 “Get EnGAYged.”[i] Those were the words I saw pinned to a young man’s shirt on the day after Obergefell v. Hodges.[ii] This is the Supreme Court ruling that held that the Fourteenth Amendment to the U.S. Constitution grants same-sex couples the right to marriage, and that all states must recognize this right.

What followed was the declaration that “love wins” and a rainbow light display from the White House.[iii] Perhaps you had a similar experience. But homosexuality and same-sex marriage didn’t arise in 2015 with Obergefell. They’ve dominated the public discussion for well over a decade.

These cultural developments haven’t left the church, its members, or its ministries unaffected. Now, courts are jailing some who refuse to issue same-sex marriage licenses. Workers who decline to accommodate same-sex couples are found guilty of discrimination. Examples include Christian bakers, bed and breakfast establishments, florists, photographers, and wedding venues. Cities are denying church groups equal access to rent public properties and attempting to regulate wedding chapels.

Universities are declining to recognize Christian student groups with traditional religious values. Federal healthcare mandates are attempting to require corporations to cover contraceptives and drugs to induce abortions. One city mayor even terminated the services of a public servant who expressed religious views contrary to city policy. Another attempted to compel pastors to submit sermons that make reference to homosexuality or gender identity.

These developments aren’t over. We haven’t heard the final word. Our denomination, churches, and congregants will continue to be affected. Christians today are facing strong pressure to conform. As a result, many are asking, “What does this mean? What are the legal and religious liberty implications of Obergefell?”

In answering these questions, we’ll consider some social and legal developments. Then we’ll examine several important civic principles. These include religious liberty, separation of powers and federalism, the rule of law, and democracy and liberty.

“I’m just a church member. I don’t know anything about the law,” some may say to themselves. But I submit that all American Christians should know something about these principles. As we’ll see, they help us understand the society within which we serve.

Historically they’ve also helped protect the inherent, God-given liberties we possess—what the American founders referred to as “unalienable rights.” Regrettably, many of these principles and protections are being threatened, which we must work to curb. We live in a democratic republic, and we all can play an important role. But to do this, we must understand what we’re protecting.

How Did We Get Here?

Social Developments

For most of its history, American government has penalized homosexual behavior. However, after World War I, LGBT (lesbian, gay, bisexual, transgender) rights made a small step forward in the so-called Roaring Twenties.

By the 1960s, the LGBT movement was in full swing. In 1962, Illinois became the first state to decriminalize homosexuality. Prior to this, all fifty states had laws against it.

Legal Developments

In 2003, Lawrence v. Texas decided that laws against same-sex sexual conduct are unconstitutional. This decision set the tone for the expansion of LGBT rights for the next decade as public awareness and sympathy continued to grow.

In 2011 and 2012, the Equal Employment Opportunity Commission (EEOC) held that Title VII of the 1964 Civil Rights Act also applies to LGBT people. Title VII outlaws discrimination on the basis of race, color, religion, sex, or national origin. Now that doesn’t say anything about LGBT rights or gender identity, does it?

Well, the EEOC determined that the “sex” component extends to LGBT people. Previously this had referred to women to protect them from gender discrimination.[iv] Now apparently it also refers to LGBT people.

With same-sex marriage, Massachusetts became the first state to recognize it in 2004. By June 2013, just nine years later, United States v. Windsor said that the Defense of Marriage Act (DOMA) was unconstitutional. Congress had passed DOMA in 1996, and President Bill Clinton had signed it. And it had defined marriage as a one-man, one-woman union.

Obergefell v. Hodges

Most recently, Obergefell v. Hodges has said that same-sex marriage is legal across the land.

The facts of the case are simple. The states of Michigan, Ohio, Kentucky, and Tennessee “define[d] marriage as a union between one man and one woman.”[v] A lawsuit was filed, saying that this was unconstitutional. And eventually it made its way to the Supreme Court.

Keep in mind that Americans had defined marriage this way for over 150 years. And no one had suggested it was unconstitutional.

The question they considered was whether the Fourteenth Amendment gives same-sex couples the fundamental right to marriage. And if so, do all states have to recognize this fundamental right? A 5-4 majority held “yes” to both questions.

Defining “marriage” as a one-man, one-woman union is, according to Obergefell, unconstitutional under the Fourteenth Amendment. Justice Kennedy wrote the majority opinion. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Antonin Scalia wrote four separate dissents.

Justice Kennedy wrote that the Constitution—specifically the Fourteenth Amendment—protects liberties that extend to certain personal choices central to individual dignity and autonomy. Which includes choices defining personal identity and beliefs. Which includes the right of same-sex couples to marry.[vi]

Now, the Fourteenth Amendment reads that no state shall “deprive any person of life, liberty, or property, without due process of law.” Do you hear anything about that in there?

All of this leads us to ask, “Where do we go from here?” We’ll consider that question in part II, as well as the topic of religious liberty.

_____________________________

[i] Portions of this series are adapted from “Supreme Decision?”, ONE Magazine, October-November 2015: 6–8; “Responding to Intolerance: From Life Transformation to World Transformation,” The Brink Magazine, Summer 2015, 38–42; and “Godliness and Government,” FUSION, December, January, February 2013–14: 66–69.

[ii] Accessible at http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.

[iii] Molly Oshatz, writing for First Things, writes, “‘Love wins’ has become a catch phrase of the fight for gay marriage. Love wins, yes, but it’s agape that wins, not eros” (Molly Oshatz, “Agape Wins,” First Things, July 6, 2015; http://www.firstthings.com/web-exclusives/2015/07/agape-wins; accessed September 25, 2015; Internet).

[iv] See “Civil Rights Act (1964), Our Documents, http://www.ourdocuments.gov/ doc.php?flash=true&doc =97&page=transcript; accessed October 21, 2015; Internet. This legislation does contain a religious exemption in section 702, which provides, “This title shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, or society of its religious activities or to an educational institution with respect to the employment of individuals to perform work connected with the educational activities of such institution.”

[v] Obergefell v. Hodges, 576 U.S ___ (2015), at 1; accessible at http://www.supremecourt.gov/opinions/14pdf/ 14-556_3204.pdf.

[vi] Obergefell, 576 U.S ___, at 2, 3.

News from the 2016 Convention

by Theological Commission

Recently the Commission for Theological Integrity was pleased to be a part of the 2016 FWB National Association meeting in Kansas City, Missouri. This was the 80th meeting of the National Association, and the first time the Convention had met in Kansas City since 2004.  Below are just a few of the highlights from the Commission’s ministry to our Free Will Baptist people.

  • The Commission released the sixth edition of Integrity: A Journal of Christian Thought. Complimentary copies are mailed to all ordained pastors serving in the denomination, though pastors who attended the Convention were able to begin picking up their copies there. Additional copies of the journal can be requested for $7 (includes s&h) by emailing mattpinson@welch.edu. Readers will find this edition shorter than previous ones, though this has been done in the hopes of producing the journal more frequently in the future. The journal consists of four substantial essays and eight book reviews.
  • The Commission sponsored its annual Theological Trends seminar. This year Welch College professor and registrar Matthew Bracey gave a presentation entitled, “Legal and Religious Liberty Implications of the Supreme Court Decision on Same-Sex Marriage.” Bracey put the court decision in its proper social and legal context, then discussed the theological, legal, and practical aspects of religious liberty. He also offered some insight into what a faithful response by the church might look like in our current cultural moment.
  • During the Commission report on Wednesday morning, Chairman Matt Pinson recognized Mr. Leroy Forlines for his 50+ years of service to the Theological Commission, as well as his service to the denomination as a whole. Jackson Watts and Matthew Bracey presented Forlines with a recently-completed festschrift entitled The Promise of Arminian Theology: Essays in Honor of F. Leroy Forlines (Randall House Academic).
  • The Commission announced its 2016 Symposium, to be held on the campus of Welch College in Nashville on October 24-25. The theme of the Symposium will be “The Theological Legacy of F. Leroy Forlines.” The event, aptly, will take place only weeks prior to Forlines’ 90th birthday. The program will feature a range of presentations that deal with aspects of Forlines’ thought, as well as a panel discussion. Paper proposals and submissions may be sent to fwbtheology@gmail.com. The deadline for receiving proposals or submissions will be August 15th.
  • Finally, W. Jackson Watts was re-elected to a second term on the Commission to expire in 2021.

In the months ahead, we hope you will continue following the Commission’s work here at fwbtheology.com, and follow us on Twitter @fwbtheology

Preserving and Promoting Free Will Baptist Doctrine