Some of the top names in Christian ministry – including the National Religious Broadcasters, the Billy Graham Evangelistic Association, the Chuck Colson Center, Albert Mohler and Charles Stanley – are asking the U.S. Supreme Court to protect marriage as God defined it.
In a brief filed in the Obergefell v. Hodges case, the leaders ask the high court to affirm the 6th U.S. Circuit Court of Appeals decision that residents of Kentucky, Michigan, Ohio and Tennessee can define marriage for themselves.
The 6th Circuit ruling conflicts with several other appeals court decisions in which federal judges defined marriage for states.
The brief was filed by the Liberty Institute on behalf of the National Religious Broadcasters, the Billy Graham Evangelistic Association, Samaritan's Purse, In Touch Ministries, Pathway to Victory, The Chuck Colson Center for Christian Worldview, Dallas Theological Seminary, The Southern Baptist Theological Seminary, Southeastern Baptist Theological Seminary, Daniel L. Akin, Mark L. Bailey, Francis J. Beckwith, Robert A.J. Gagnon, Robert Jeffress, Byron R. Johnson, Eric Metaxas, Albert Mohler Jr., Charles F. Stanley, John Stonestreet and Owen Strachan.
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"In reaching its decision, this court should reaffirm that the Free Speech Clause of the First Amendment protects religious dissenters who disagree with state-recognized same-sex marriage and to reaffirm the importance of free debate and free inquiry in this democratic republic," the brief states.
Liberty Institute President Kelly Shackelford said religious liberty and free speech "are our first American freedoms."
"We hope the Supreme Court will use this opportunity to affirm the Sixth Circuit and reaffirm the constitutional rights of all Americans to speak and act according to their beliefs," he said.
The filing points out John the Baptist was executed for speaking against King Herod's marriage to Herodias, Stephen the martyr was stoned to death when he refused to stop preaching about Jesus, and the apostle Paul and disciple Silas were in prison because they preached "customs unlawful for Romans to accept or practice."
"For more than 2,000 years, individual Christians have refused to keep quiet about their sincere religious beliefs and have not flinched at speaking 'truth in power,'" the brief says. "Same-sex marriage is not an exception to this historical rule. For two millennia, Christians have based their definition of marriage on the words of Jesus Christ, who incorporated by reference ancient words from the book of Genesis: 'But from the beginning of creation, 'God made them male and female.' 'Therefore a man shall leave his father and mother and hold fast to his wife, and the two shall become one flesh.' So they are not longer two but one flesh."
The brief further states that if Christians' "sermons and swords clash with the views of politically powerful groups or even government orthodoxy on same-sex marriage, they will have no choice but to seek refuge in the First Amendment generally, and the Free Speech Clause specifically."
"A decision from this court imposing same-sex marriage on the states would dramatically exacerbate this conflict between advocates of same-sex marriage and Christian ministers, teachers, and leaders, and would inevitably lead to untold violations of the latter's First Amendment free speech rights."
The brief cites several recent cases of government discrimination and punishment of Christians for their faith, including fired Atlanta fire chief Kelvin Cochran, Navy chaplain Wes Modder and fired Georgia Department of Public Health staffer Eric Walsh.
It also mentions the "Houston Five" pastors who were targeted by a lesbian mayor with subpoenas for their sermons
When the Alabama Supreme Court prevented a federal judge from imposing same-sex marriage last month, it argued the U.S. Supreme Court affirmed the right of states to decide the issue when it overturned the federal Defense of Marriage Act in the Windsor case.
In its order, the Alabama court wrote: "An open question exists as to whether Windsor's 'equal dignity' notion works in the same direction toward state laws concerning marriage as it did toward DOMA. The Windsor court stated that 'the history of DOMA's enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power, was more than an incidental effect of the federal statute."
The Alabama court noted that in Windsor, New York's law allowed same-sex couples to obtain marriage licenses.
"Thus, the 'dignity' was conferred by the state's own choice, a choice that was 'without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.'"
The Alabama court thus asked: Why, if New York could make that choice, would Alabama be deprived of exactly the same choice?
"The problem with DOMA was that it interfered with New York's 'sovereign' choice," the Alabama court said. "Alabama 'used its historic and essential authority to define the marital relations' and made a different 'sovereign' choice than New York. If New York was free to make that choice, it would seem inconsistent to say that Alabama is not free to make its own choice, especially given that 'the recognition of civil marriages is central to state domestic relations law applicable to its residents and citizens.'"
The problem the argument poses for same-sex marriage advocates is that nearly all orders for states to recognize same-sex marriage have come from federal judges. The judges have simply overridden the will of the state's residents who voted, often overwhelmingly, to define marriage as the union of one man and one woman.
That was the scenario in California, where the fight over marriage ended up at the U.S. Supreme Court, which ruled only on a technicality – the standing of those supporting the state constitution – and not the merits of the case.
Of the three dozen states that now have been forced to recognize same-sex marriage, only a handful enacted it through their own legislative or administrative procedures.
The Alabama court noted: "Only 12 states have accepted same-sex marriage as a result of choices made by the people or their elected representatives. The 25 other states that now have same-sex marriage do so because it has been imposed on them by a federal court."
The 6th U.S. Circuit Court of Appeals said: "Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us – just two of us in truth – to make such a vital policy call for the thirty-two million citizens who live within the four states of the Sixth Circuit."
Baxter said the court's decision to overturn a "deeprooted" standard for marriage opened a Pandora's box.
"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?"
Alabama Supreme Court Justice Roy Moore said: "I've said the very same thing. Incest is next. Or polygamy."
The Alabama ruling pointedly noted that if love was the only factor in marriage, then "polygamy also would be constitutionally protected."
And it noted that the previous times courts have defined marriage as a "fundamental right," they have been referring to traditional marriage.
The U.S. Supreme Court has ruled, the state ruling said, "the states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce … [and] the Constitution delegated no authority to the government of the United States on the subject of marriage and divorce."
The Alabama court said "proponents of the new definition of marriage therefore leave us with an untenable contradiction."
"On the one hand, they insist that expanding the definition of marriage to include relationships between members of the same sex constitutes nothing more than offering marriage licenses to another class of individuals. It is akin to modifying the age of consent for marriage …. On the other hand, proponents of same-sex marriage contend that this new definition of marriage is so fundamental that the Constitution prohibits states from maintaining the traditional definition of marriage, yet they are unable to articulate a fundamental element of their definition of marriage that would justify government sponsorships of it.
"Thus, under their own theory, either the aspect of marriage the same-sex partners insist should be included in the institution is not fundamental to its nature, in which case Alabama's laws enforcing the traditional definition of marriage are not unconstitutional, or marriage is a fundamental right but the characteristics upon which same-sex partners necessarily must hinge their definition on marriage fail to explain government's interest in marriage."
Two justices of the U. S. Supreme Court already have made a public stand for same-sex marriage, having performed ceremonies.
The actions by Elena Kagan and Ruth Ginsburg have prompted citizens groups to call for them to recuse themselves from the coming decision, but they have declined to do so.
Kagan performed a Sept. 21 same-sex marriage for her former law clerk, Mitchell Reich, and his partner, in Maryland. Ginsburg performed a same-sex marriage at the Kennedy Center for the Performing Arts in Washington, D.C., in August 2013.
"Both of these justices' personal and private actions actively endorsing gay marriage clearly indicate how they would vote on same-sex marriage cases already before the Supreme Court," the American Family Association said.
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