Five members of the U.S. Supreme Court on Friday opined that the 14th Amendment requires states to license same-sex "marriages" and to recognize those arrangements from other states, overturning a lower court ruling that said states' citizens could define marriage for themselves.
Justice Anthony Kennedy read the opinion of the majority. Four dissents were filed among Associate Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Chief Justice John Roberts.
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Kennedy was joined by Ruth Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Ginsburg and Kagan had made public their advocacy for same-sex marriage by performing ceremonies but refused demands that they recuse.
Kennedy quoted Confucius, saying he "taught that marriage lies at the foundation of government," and Cicero, who wrote, "The first bond of society is marriage; next, children; and then the family."
He wrote for pages without mentioning the U.S. Constitution.
Eventually, he concluded: "Under the Due Process Clause of the Fourteenth Amendment, no state shall 'deprive any person of life, liberty, or property, without due process of law.' The fundamental liberties protected by this clause include most of the rights enumerated in the Bill of Rights. … In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."
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He said his opinion was not limited by "history and tradition." And he faulted the "generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment" for not knowing "the extent of freedom in all of its dimensions."
His conclusion is that the court was compelled to "the conclusion that same-sex couples may exercise the right to marry."
"The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality."
His reasoning, however, failed to identity a constitutional foundation for limiting marriage to two persons, perhaps bringing closer to reality the prognostication of California Supreme Court Justice Marvin Baxter and others, who have warned that a Supreme Court ruling creating same-sex "marriage" is a slippery slope to state-approved incest and polygamy.
WND reported the reaction by advocates for multiple partners when the push for same-sex marriage at the high court developed.
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"We polyamorists are grateful to our brothers and sisters for blazing the marriage equality trail," Anita Wagner Illig told U.S. News and World Report.
Former Archbishop of Canterbury George Carey predicted what appears to be developing.
The London Daily Mail reported Carey told Prime Minister David Cameron that an "equal marriage" proposal would have further consequences.
Carey pointed out some British lawmakers are recognizing that if they permit same-sex marriage, there would be no reason to bar two sisters from being married or multiple-partner arrangements.
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"Once we let go of the exclusivity of a one-man, one-woman relationship with procreation linking the generations, they why stop there?" he said. "If it is about love and commitment, then it is entirely logical to extend marriage to two sisters bringing up children together. If it is merely about love and commitment, then there is nothing illogical about multiple relationships, such as two women and one man," he said.
Baxter issued a similar warning when his court struck down the state's ban on same-sex marriage in 2008. Voters later that year overruled the decision, adopting a state constitutional amendment, Proposition 8, which defined marriage as the union of one man and one woman. But a homosexual judge later overturned the vote.
Baxter dissented from the majority 2008 opinion that created same-sex marriage for a short time in the state, arguing the consequences of the decision were not thought out.
He wrote: "The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy. … Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous.
"Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law."
"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?"
Kennedy seemed to recognize the concept of tradition and history but then opened the door even further for recognition for "all persons, whatever their sexual orientation."
He wrote: "The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy and spirituality. This is true for all persons, whatever their sexual orientation.
"The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals."
He noted that the court already had legitimized homosexuality, and he concluded the government could not specially recognize man-and-woman couples.
"A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation and education," he continued.
"Marriage confers … profound benefits. By giving recognition and legal structure to their parents' relationship, marriage allows children 'to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."
He said: "Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. … The marriage laws at issue here thus harm and humiliate the children of same-sex couples."
Kennedy "finally" wrote, "marriage is a keystone of our social order."
He cited Alexis de Tocqueville, "who recognized this truth on his travels through the United States almost two centuries ago: 'There is certainly no country in the world where the tie of marriage is so much respected as in America.'"
Kennedy did not explain de Tocqueville's reference to marriage of the 1800s in America, which ldid not include "gay marriage," and how it would support same-sex unions.
There was no issue for the court to remand to lower jurisdictions, so it was expected to be effective immediately.
Regarding the thousands of laws that apply to marriage, he wrote, "There is no difference between same- and opposite-sex couples."
"The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."
And Kennedy ascribed the rights of Americans not to God, as do the founding documents, but said, "They rise … from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
To those with religious objections, tough luck, he wrote.
"Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the state itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied."
Kennedy admitted while the "Constitution contemplates that democracy is the appropriate process for change," he would not wait with same-sex "marriage" because "individuals need not await legislative action before asserting a fundamental right."
Throwing a bone to conservatives, he continued: "It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."
He also advocates that same-sex marriage supporters "engage those who disagree with their view in an open and searching debate."
Chief Justice John Roberts' dissent said: "The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this court's precedent."
Scalia wrote that he didn't really care about same-sex marriage but said, "Today's decree says that my ruler, and the rule of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court."
He said Americans are being robbed of the "freedom to govern themselves."
Thomas wrote the majority "is at odds not only with the Constitution, but with the principles upon which our nation was built."
Alito said the Constitution simply doesn't address the issue.
"The Constitution leaves that question to be decided by the people of each state," he wrote.
Religious leaders had vowed to not recognize a decision creating same-sex marriage. Some critics said such a decision would be placed in the category of other Supreme Court mistakes, such as the Dred Scott ruling that determined blacks were less than human and the Buck v. Bell ruling that permitted involuntary sterilization.
Prominent conservative leader Phyllis Schlafly said Christians are rightly worried that establishing a constitutional right to same-sex marriage would result in government persecution of people whose faith conflicts with the law.
The legendary activist, who is credited with stopping the Equal Rights Amendment, said the Obama administration is giving Christians legitimate cause for concern.
"I think it's really shocking that so many pastors are even worried about this," said Schlafly, author of "Who Killed The American Family." "What kind of a country do we have when dozens or scores of pastors are worried if they practice their religion they are going to be subject to some kind of penalty? I mean, who knows where it could go. Obama's own lawyer said penalties against Christian institutions could follow homosexual marriage."
During Supreme Court hearings on the marriage case, U.S. Solicitor General Donald Verrilli admitted "it would be an issue" when asked if legalization could result in the government stripping the tax-exempt status of Christian institutions that opposed homosexual marriage.
Schlafly said persecuting Christians is "not the country we live in.""We have the First Amendment. We have freedom of religion. That was a basic element of American policy. And now many, many people think we are about to lose it, and Obama is doing nothing to calm their fears," Schlafly said.
In advance of the ruling, WND created the "Big List of Coercion," a number of cases in which Christians already are facing punishment or discipline from government because of their stance on marriage.
Carl Gallups, a radio host, pastor and author of "Final Warning: Understanding the Trumpet Days of Revelation," said: "If the government were to focus in on the churches and say you have to perform gay weddings or give up tax-exempt status, what will these preachers do? Will they stand on the word of God, and with the historical foundation of civilized societies, or will they cave in – in the name of financial and political expediency?”
"Christians should not underestimate the long term legal consequences of homosexual marriage," he said. If anything, the loss of tax-exempt status would be the "least invasive" result. What is more important, he said, is what the government would do next.
"Of course, whatever a government can tax, it can eventually 'control.' The biggest consequence that pastors and Christians might have to face would be stringent legal sanctions potentially resulting in imprisonment, loss of one's livelihood or even their life. These possibilities would have been considered far-fetched just a few decades ago – but not now."
Should have been halted
The marriage case was from the 6th U.S. Circuit Court of Appeals, which upheld traditional marriage against five challenges in four states. Herbert W. Titus, who taught constitutional law for 26 years, and former Reagan administration official William J. Olson argued the case should have been halted in its tracks.
They wrote that "Judge Sutton points out that '[n]obody in this case ... argues that the people who adopted the Fourteenth Amendment understood it to require the states to change the definition of marriage.' Laymen logically deduce that if the Fourteenth Amendment as written had nothing to do with same-sex marriage, that's the end of the matter."
"After all, Justice [William] Douglas succinctly described the amendment in his autobiography: 'The Fourteenth Amendment was passed to give blacks first-class citizenship.' … But for those lawyers who want unelected judges to set the public policy of our nation, it simply doesn't matter what the framers intended. And neither does it matter to many judges who are all too willing to give effect to their own political views. Discovering the 'authorial intent' of the Framers is only a small part of their concern — a step they sometimes skip over entirely."
They noted that Associate Justice Samuel Alito previously explained that same-sex marriage is not "a difficult question of constitutional law."
He wrote in the 2013 Windsor decision, regarding the federal Defense of Marriage Act: "The Constitution does not guarantee the right to enter into a same-sex marriage. Indeed, no provision of the Constitution speaks to the issue. It is beyond dispute that the right to same-sex marriage is not deeply rooted in this nation's history and tradition."
That means those who challenge traditional marriage want "the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges."
When a federal judge ordered Alabama to create same-sex marriage in that state, the state Supreme Court issued its own ruling, determining that the state's laws and Constitution did not allow it.
In the Alabama ruling, the state's justices cited the U.S. Supreme Court's decision striking the federal DOMA.
In its order, the Alabama Supreme 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: "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.'"
But it then raised a question: 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 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.'"
In nearly all of the 37 states that had been ordered to recognized same-sex marriage, the decision was imposed by a single federal judge, in most cases against the wishes of voters.
Kagan, Ginsburg refuse to recuse
Two of the Supreme Court justices had been called on to recuse themselves from the case, because they already had publicly advocated same-sex marriage by performing ceremonies.
Elena Kagan and Ruth Ginsburg faced demands from organizations representing millions of Americans to not participate in the case.
"U.S. Supreme Court Justices Elena Kagan and Ruth Bader Ginsburg should recuse themselves from any cases involving the homosexual marriage issue on the basis that they have conducted same-sex marriage ceremonies," an American Family Association campaign letter said.
WND reported when Alabama Supreme Court Chief Justice Roy Moore suggested Ginsburg could be impeached for her public advocacy of "gay" rights as the court considers a case that could redefine marriage in federal law.
A brief from the Foundation for Moral Law, for which Moore worked before he was elected to the court's highest position in Alabama, explained that Canon 3A(6) of the Code of Conduct for United States Judges provides: "A judge should not make public comment on the merits of a matter pending or impending in any court." 28 U.S.C. sec 455(a) mandates that a justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
The foundation pointed out in a submission to the Supreme Court: "Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: 'I think it's doubtful that it wouldn't be accepted. The change in people's attitudes on that issue has been enormous … It would not take a large adjustment.'"
Moore told WND that according to an analysis by historian Raoul Berger at Harvard Law School in 1970, the Constitution allows judges to hold office during periods of good behavior, but an end to "good behavior" is accompanied by an end of their "offices."
"His conclusion is there is an implied power to remove judges whose bad behaviors fall short of high crimes and misdemeanors," he said. Since there are no "dead words" in the Constitution, "every word has a meaning."
"The remedy rests with Congress," he told WND, although anyone could raise the question.
Titus and Olson previously released an analysis that warned virtually every family law in the nation, including those regarding inheritance, support, custody, adoption, divorce, testimonial privileges, interests in land and conveyance would have to be changed if the justices create a right to same-sex marriage.
The attorneys said any decision "will have repercussions of titanic proportions."
Besides the wholesale revision of every state's family law, the lawyers argue that Christian and other religious adoption agencies would face forced closure.
Also, speech based on the Bible no longer necessarily would be allowed in churches, they argued.
"Pastors would be monitored by atheist and liberal groups to ensure that there be no teaching that homosexual behavior is sin. Even websites which offer information about withdrawing from homosexual behavior would be banned as 'hate speech.'"
Churches could lose their tax exemptions, which could lead to the forfeiture of church properties. And there no longer would be valid arguments against multiple-partner or incestuous marriages, they said.
Also, those who hold biblical views would be driven from public office, as in North Carolina where numerous judges have resigned to avoid criminal prosecution for refusing to perform homosexual marriages.
Businesses would be ordered to cater to homosexual duos, who already have been targeting florists, photographers, bakers and others.
And likely no professional whose occupation requires a state license would be allowed to work without subscribing to the "gay" agenda, they argue.
She said the world is "coming close to the end of human history as we know it."
"Our world is unraveling," she told Colmes. "I think the whole world senses, especially those who follow the news, senses that something is happening that is very unsettling."
Colmes had asked Lotz, the author of nearly a dozen books and the president of AnGeL Ministries, whether she believed "we are at the end times now."
"I believe that it is, Alan, and I base that not just on feelings; I base it on what Jesus said in the New Testament and then what I see going on in the world at the same time – and they match," she said. "And so I put that together and I believe we're coming close to the end of human history as we know it."
Lotz said that with the end times "comes accountability before God, which we would call a judgment."
Hear the interview:
'Undermine credibility' of court
A decision creating same-sex marriage also would undermine the credibility and authority of the court itself and would not resolve the dispute anyway, said one of the many briefs filed in the case.
The brief said that if the U.S. Supreme Court "holds that the United States Constitution requires all fifty states to redefine marriage, such a decision will not necessarily end the conflict" between federal Judge Calle Granade's Jan. 23 ruling that Alabama's Sanctity of Marriage Amendment, defining marriage as the union of one man and one woman, as unconstitutional and the Alabama Supreme Court's order barring the issuance of marriage licenses to same-sex couples.
"Given the self-evident reasoning" against Granade's ruling, the brief said, "such a decision by the Supreme Court would naturally and immediately raise a question of legitimacy."
According to Mat Staver, founder of Liberty Counsel, who worked on the Alabama case, "Judge Granade has no more power to overrule the Alabama Supreme Court than she does to rewrite same-sex 'marriage' into the U.S. Constitution.
"The Alabama Supreme Court's prior Mandamus Order, and perhaps its disposition of this motion, should send a message that any ruling by Judge Granade or even the United States Supreme Court inventing a right to same-sex 'marriage' under the U.S. Constitution is illegitimate."
'Restrain judges' legislation
In Congress, a move already has started to take the decision away from the courts altogether.
Rep. Steve King, R-Iowa, is sponsoring the "Restrain Judges on Marriage Act of 2015."
"If my bill becomes law, then the states will make the decision from that point forward on marriage," King said. "Any enforcement funds would also be blocked. In the end, states would decide what marriage is. There are only two questions: What is marriage, and who's going to decide?"
Petitions were created and tens of thousands signed, urging the high court to stay out of the definition of marriage.
"We will view any decision by the Supreme Court [overturning traditional marriage] or any court the same way history views the Dred Scott and Buck v. Bell decisions. Our highest respect for the rule of law requires that we not respect an unjust law that directly conflicts with higher law," says a Marriage Pledge by Keith Fournier, a Catholic deacon who is editor of Catholic Online, and Mat Staver, founder of Liberty Counsel.
"A decision purporting to redefine marriage flies in the face of the Constitution and is contrary to the natural created order. As people of faith we pledge obedience to our Creator when the state directly conflicts with higher law."
The arguments over the dispute even generated a warning directly to the justices.
'There is another court'
"The justices of the Supreme Court took up their seats [in a hearing] on whether they should strike down the biblical and historic definition of marriage," said Rabbi Jonathan Cahn, author of the New York Times bestseller "The Harbinger" and the inspiration behind the "Isaiah 9:10 Judgment" movie.
"That the event should even take place is a sign this is America of [George] Washington's warning … a nation at war against its own foundation," he said.
Washington warned the smiles of heaven can never be expected on a nation "that disregards the eternal rules of order and right which heaven itself hath ordained."
Cahn noted the Supreme Court opens sessions with the words, "God save the United States and this honorable court."
"If this court should overrule the word of God and strike down the eternal rules of order and right that heaven itself ordained, how then will God save it?" he asked. "Justices, can you judge the ways of God? There is another court and there another judge, where all men and all judges will give account.
"If a nation's high court should pass judgment on the Almighty, should you then be surprised God will pass judgment on the court and that nation? We are doing that which Israel did on the altars of Baal," he said.
"We are exchanging our light for darkness."
See Jonathan’s Cahn’s message at Washington: Man of Prayer event at the Capitol.