Our Fatally Wounded First Amendment

Homosexual unions hole the Constitution below the waterline.

The past week has been a disaster for America, liberty, and conservatism unequaled in our lifetimes: The Supreme Court has entirely cast itself free of its moorings in the rule of law, with dire consequences for our future.

The absurd ruling in favor of Obamacare shows once and for all that laws mean exactly what the people in power want them to mean, no more and no less.  This is the very definition of tyranny.

If a court can read a law specifically stating that money cannot be spent in such and such a way, and instead rule that it's perfectly fine for the President to spend money in exactly the way the law forbids, then our Congress, our laws, and our entire vaunted representative system is a mockery and a fraud.  We may as well just be honest about things, declare Mr. Obama King, and send everybody else home.

But that's been coming for a long time.  What makes this week the worst in American history that we can think of, is that the Supreme Court has now decided that religion, churches, and people of faith are enemies of all right-thinking people.

What Free Exercise of Religion?

First, let's start with the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 - Bill of Rights, Amendment I

For lo these past two centuries, Americans have rested confident that their liberty of conscience was enshrined in law.  Our Founders considered freedom of religion to be the paramount liberty, the very most important, worthy of being listed first, with property rights a close second.

More: the Constitution does not merely recognize the liberty for all Americans to believe what they will.  It trumpets that all Americans have the right to practice what they believe.  Only when a religious rite directly infringes the essential rights of someone else - e.g. cannibalism or Satanic human sacrifice - can the power of government be used to stop it.

At least, that's what we've always thought.  Today we know better.

The First Amendment is still in force.  We're even still obeying it: Congress has, sure enough, "made no law prohibiting the free exercise" etc. etc.

No: the Supreme Court did.  In last week's ruling on homosexual unions, the Court did not merely rule that states have the authority to pass legislation allowing homosexuals to marry each other.  That ship sailed years ago.

What's new as of today is that, as with the infamous Roe v Wade decision, the Court has somehow ferreted out a new right that's been hiding unsuspected deep in the Constitution for all these years without anyone ever noticing.  Not the right for states to choose to allow same-sex marriage; now, homosexuals have that as an absolute right regardless of what the state they're in prefers.  Just as the homosexual activists have been demanding for years, their behavior is now a protected class we all must bow down to - or else!

Don't believe this, amidst all the celebrating?  Let's take a look at what happened after the civil rights case homosexuals love to point to as a precedent, the 1967 Loving v Virginia decision that struck down state bans on interracial marriage.

The Cost of Unpopular Faith

For all of American history, some states had chosen to forbid blacks from marrying whites, while others didn't care.  Suddenly, the Supreme Court ruled that this represented an unlawful infringement of basic rights, despite the fact that marriage is never once so much as mentioned in the Constitution.

Now, let's be clear: we are not saying that interracial marriage ought to be against the law.  We are simply pointing out that the Constitution says nothing whatever about it.

Yet here was interracial marriage being elevated to a civil right.  States had to accept interracial marriages; local judges and county clerks had to issue marriage licenses to interracial couples.  Ministers, though, still could choose not to join couples of differing colors.

Or so they thought, for 15 years.  Then, in 1983, Bob Jones University v United States came before the court.

Bob Jones University, or BJU, is a century-old institution that is both profoundly religious fundamentalist and deeply Southern.  Ever since its establishment, BJU had banned students of differing races from dating each other.  Until the 1970s, blacks weren't even accepted at the university; once they were allowed in, they weren't allowed to date anyone white.

If the Constitution says nothing about marriage, it certainly doesn't concern itself with dating.  But the Constitution does preserve the right to free exercise of religion.

The officials of BJU devoutly believed that their God wanted the races to stay forever distinct and separate.  The rest of the country felt otherwise, particularly the government, but nobody tried to force BJU to close.  Instead, the IRS revoked BJU's religious tax exemption.

Now, nowhere in the laws regarding taxes and religion is there any specification as to what you may and may not believe.  That didn't matter to the IRS; they thought that public opinion would be on their side regardless of the law.

They were right: the Supreme Court ruled in favor of the IRS and against the plain text of the law, forcing BJU to pay taxes just as if it were a for-profit business instead of a ministry and educational institution.  Otherwise, though, BJU continued on unchanged for another twenty years, until they actually opened their Bibles and discovered, to their shock, that God never actually says a word about interracial dating either.  A few years later, the then president of the University publicly apologized for its racist past and disowned their past policies.

They still don't have their tax exemption back.

Whether or not you agree with BJU's historical position - for the record, we find it absurd - any liberty-loving person will feel more than a bit queasy about the IRS using its awesome power against a religious group because of its religious views, no matter how wrongheaded they may be.

Remember: nobody forces anybody to go to BJU.  If you go there, you do so voluntarily, choosing to accept their rules, and if you change your mind, you can leave that very day.  No doubt the vast majority of Americans would never darken the doors of that institution, just as nearly all religious Americans of any sort would try to avoid the places of worship of competing religions.

The First Amendment was made for the protection of religious minorities; if you're the religious majority you don't need any special protection in law.  But BJU represents such a vanishingly small minority of American Christians, much less America as a whole, that when they came for BJU, nobody else much cared.

First They Came For...

What about today?  Not all our Supreme Court justices are entirely stupid.  In the oral arguments for Obergefell v. Hodges whcih led to ruling homosexual union a civil right, Justice Alito addressed the problem point-blank:

Justice Samuel Alito: In the Bob Jones case, the Court held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or college if it opposed same-sex marriage?

Solicitor General Donald Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that. I don’t deny that,

Alito: It is going to be an issue.

Verrilli is Mr. Obama's man, sent to the Supreme Court to have homosexual unions enshrined in law.  He succeeded, but in doing so, he admitted the game plan: just as with BJU, churches which oppose homosexuality will be stripped of their tax-exempt status.  In other words, they'll be decertified as a religion from the perspective of the government.

Does this prohibit the free exercise of religion?  Technically, no: people can still believe and churches can still act as they choose.  They'll just have a whole lot harder time paying for it.

But is that anything our Founders would recognize as religious liberty?

Let's look at it from a more modern perspective: Supposing that, in 1967, the states which opposed interracial marriage had decided to "obey" the Supreme Court by slapping a monster tax on interracial marriage licenses.  Sure, interracial couple, you can get married - you have that right.  It'll just cost you $1,000, whereas if you marry someone your own color, it's only $10.

Obviously, that wouldn't have been allowed to stand for five minutes.  A monster financial penalty is, in fact, a major obstacle to free exercise of anything.  Religious freedom, as the queen of our rights, should always have the highest protection and privilege.

It doesn't anymore, and now we don our Carnac the Magnificent turban for some soothsaying: inside of ten years, American churches will either accept and practice homosexual unions, or they'll have no tax exemption.  They'll be paying full property taxes on their buildings, full income taxes on their charitable donations, and of course, full income taxes paid by ministers on their salaries, which they currently don't.  How many people will choose to give to their church when they can no longer even write it off on their taxes?

We're about to find out - which, of course, is exactly what Verrilli and the left have been angling for, to say nothing of the tyrannical homosexual lobby.  As Alito presciently pointed out in his dissent:

"Today’s decision … will be used to vilify Americans who are unwilling to assent to the new orthodoxy."

So much for freedom of speech, freedom of conscience, or for any freedom at all, for that matter.  We are no longer under a government of law, it's become a government of men - perversely power-mad ones, to boot.

Petrarch is a contributing editor for Scragged.  Read other Scragged.com articles by Petrarch or other articles on Law.
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