Tag Archives: Law

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

by Matthew Steven Bracey

In part IV, having looked at religious liberty in parts II and III, we considered the separation of powers, federalism, and the rule of law. Here in part V, we’ll conclude by reviewing the topics of democracy and liberty.

Democracy and Liberty

We should also remember the importance of democracy and liberty. The founders sought to achieve the best balance between a democracy and a republic. So they established America as a democratic republic. Authority is exercised by representatives of the people.

The Constitution begins, “We the people.” Although America isn’t a direct democracy, it’s a representative democracy. And we have an important role to play. By protecting democracy, we preserve liberty. On the other hand, when democracy is attacked, liberty for all suffers.

As with previous topics, though, democracy is falling on hard times. We see this when government leaders assume control over some issue that properly belongs to the citizens. This is what happened, for example, with the Obergefell majority.

Chief Justice Roberts points out, “The Court’s accumulation of power does[n’t] occur in a vacuum. It comes at the expense of the people. And they know it.”[1] Or as Justice Scalia put it, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”[2]

As with democracy, so goes liberty. Justice Scalia explained: “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”[3]

So, just as the Court’s majority didn’t actually appeal to law, it also didn’t actually appeal to liberty. It just said it did.

What should we think about liberty? What did it mean for the American founders? At the founding, liberty didn’t amount simply to a right for people to do as they please. Yet this is how it’s often interpreted today.

Instead, liberty had a nobler meaning. Founder James Wilson said this, “Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.”[4]

This is an important statement. To understand what liberty is, we must understand it in relation to law. For many today, liberty is the freedom to pursue licentiousness, or immorality.

For Wilson and the founders though, true liberty is contrasted from immorality, which is bad for a well-ordered society. Liberty without law to temper it, or the freedom to pursue immorality in the name of liberty, isn’t actually liberty.

As Wilson put it, it’s just “licentiousness.” Instead, law protects liberty from becoming immorality. Liberty needs law to be truly liberty. On the other hand, law without any liberty is just oppression.

This is a much higher view of liberty, and it’s one we need to reclaim. As we find ourselves talking with others, mentoring people, and voting, let’s remember this:

Don’t let people guilt you, in the name of “liberty,” into believing that you have to let people live however they want. As if you can’t support laws and policies that makes immorality illegal.

Don’t feel bad about believing that abortion, marijuana, physician-assisted suicide, same-sex marriage, and other topics should be illegal.

To believe that certain actions should be illegal doesn’t mean you don’t believe in liberty. It means you’re trying to keep liberty from becoming licentiousness. True liberty needs law to protect it from itself.

Conclusion

No, America isn’t perfect, nor is its government flawless. Yet it represents some of the best ideas of political theology and political philosophy from world history.

These are the very principles we’ve considered. We must not take these principles for granted. We need to recognize and reassert their importance for well-ordered societies.

We live in difficult times. Our culture chips away at this heritage to society’s own destruction. What do we do? We don’t regret the age we live in. We recognize that God has put us here for a reason. We don’t “hunker down” and wait for the storm to pass.

We go forth as light to a dark world, extending the influence of Christ in our spheres of influence (Matthew 5:16), including society. This means thinking about law and politics at the local, state, and national levels. It means recognizing the importance of the principles we’ve considered in this presentation. And it means thinking about what candidates and nominees believe about the role of these principles in government and society.

We regret the direction that certain cultural developments steer us in. But we take seriously our vocation as citizens. We commit ourselves to doing our part to contribute positively to American culture, society, and government. And we look to God ultimately for our identity and mission as He guides us for such a time as this.

Helpful Books

Bruce Ashford, One Nation Under God: A Christian Hope for American Politics (Nashville: B&H, 2015).

Hunter Baker, Political Thought: A Student’s Guide (Wheaton: Crossway, 2012).

Wayne A. Grudem, Politics According to the Bible: A Comprehensive Resource for Understanding Modern Political Issues in Light of Scripture (Grand Rapids: Zondervan, 2010).

Russell D. Moore, Onward: Engaging the Culture Without Losing the Gospel (Nashville: B&H, 2015).

Matthew Pinson, Matthew Steven Bracey, Matthew McAffee, and Michael A. Oliver, Sexuality, Gender, and the Church: A Christian Response in the New Cultural Landscape (Nashville: Welch College Press, 2016).

Francis Schaeffer, A Christian Manifesto (Westchester: Crossway, 1981).

Helpful Websites

 Acton Institute: For the Study of Religion and Liberty, http://www.acton.org/

The Ethics and Religious Liberty Commission, http://www.erlc.com/

The Colson Center for Christian Worldview, http://www.colsoncenter.org/wfp-home/

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[1] Obergefell, 576 U.S ___ (Roberts, dissenting), at 26.

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

[3] Id.

[4] Ibid.

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.

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[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

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 “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.

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[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.