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Thoughts on the Supreme Court’s Unwise and Unconstitutional Decision
Redefining Marriage, being a varied collection of
everything on my mind these past couple of momentous days, published on
Tuesday, June 30, 2015, as the Final Word in our family’s monthly newsletter
I
Some years ago I started reading a book by David Kupelian published
in 2005 entitled The Marketing of Evil:
How Radicals, Elitists, and Pseudo-Experts Sell Us Corruption Disguised as
Freedom.
An overview of the book states that “Americans have come
to tolerate, embrace and even champion many things that would have horrified
their parents’ generation—from easy divorce and unrestricted abortion-on-demand
to extreme body piercing and teaching homosexuality to grade-schoolers. Does
that mean today's Americans are inherently more morally confused and depraved
than previous generations? Of course not, says veteran journalist David
Kupelian. But they have fallen victim to some of the most stunningly brilliant
and compelling marketing campaigns in modern history.
“The Marketing of
Evil reveals how much of what Americans once almost universally abhorred
has been packaged, perfumed, gift-wrapped and sold to them as though it had
great value. Highly skilled marketers, playing on our deeply felt national
values of fairness, generosity and tolerance, have persuaded us to embrace as
enlightened and noble that which all previous generations since America's
founding regarded as grossly self-destructive—in a word, evil.”
I stated that I had started the book. I did not finish
it. After reading a couple of chapters—one about the elimination of prayer and
religion from schools specifically and the public square generally, the other
about making the unspoken evil of homosexuality standard and acceptable—I
became so agitated, worked up, and disgusted that I could not continue. It was
something like playing in a sewer.
The two topics I did read about—the assault on religion
and the normalization of homosexuality—are of course related. And we’ve seen
them coming to full fruition in this generation as our country becomes ever
more secularized and drifts further from the spiritual moorings that this
nation was founded upon.
II
The Book of Mormon, which was written for our day, contains numerous
warnings about what led to the downfall and eventual destruction of at least
two previous civilizations that existed on this continent:
“And now,” wrote the prophet Moroni near the end of the Book
of Mormon record, “we can behold the decrees of God concerning this land, that
it is a land of promise; and whatsoever nation shall possess it shall serve
God, or they shall be swept off when the fulness of his wrath shall come upon
them. And the fulness of his wrath cometh upon them when they are ripened in
iniquity” (Ether 2:9).
Nearly 400 years earlier, as Mosiah was giving the
Nephite nation a new form of government, he warned prophetically, “And if the
time comes that the voice of the people doth choose iniquity, then is the time
that the judgments of God will come upon you; yea, then is the time he will
visit you with great destruction even as he has hitherto visited this land”
(Mosiah 29:27).
And, sadly, just six decades later, we read, “For as their
laws and their government were established by the voice of the people, and they
who chose evil were more numerous than they who chose good, therefore they were
ripening for destruction, for the laws had become corrupted” (Helaman 5:2).
This is not just interesting history. These are warnings
intended specifically for our day.
III
When I was a grade schooler in Idaho in the early 1960s, we began
each school day by reading from the Bible. I do not remember that we prayed at
school.
When the first school prayer cases were decided,
President David O. McKay said, “By making that [written prayers formulated by
the New York state board of regents] unconstitutional, the Supreme Court of the
United States severs the connecting cord between the public schools of the
United States and the source of divine intelligence, the Creator himself”
(“Parental Responsibility,” Relief
Society Magazine, Dec. 1962, 878).
Six months later, just after the Supreme Court’s decision
forbidding Bible reading in public schools, President McKay said, “Recent
rulings of the Supreme Court would have all reference to a Creator eliminated
from our public schools and public offices.
“It is a sad day when the Supreme Court of the United
States would discourage all reference in our schools to the influence of the
phrase ’divine providence’ as used by our founders of the Declaration of
Independence.
“Evidently the Supreme Court misinterprets the true
meaning of the First Amendment, and are now leading a Christian nation down the
road to atheism” (Church News, June
22, 1963, 2).
President McKay was not a lawyer. He was not a judge. But
he was a prophet of God, a seer and a revelator. He could see the path we were
beginning down and knew where it would lead. We are well along that path now.
There is silliness about (that’s my kind word, perverseness
would be more accurate) that the United States is not a Christian nation.
America was founded as a Christian nation. Our founding documents, together
with reliable rhetoric from the remarkable men who founded this country, were
that God’s hand was in the enterprise. Our laws were based in the
Judeo-Christian morality taught in the Bible. Our belief, until quite recently
at least, was that America was something special in the world, a city upon a hill,
a beacon for the rest of humanity that stood against the forces of tyranny and
evil and oppression.
IV
And that brings us down to this last week, when on Friday morning,
June 26, the Supreme Court in a 5-4 split vote released its ruling on so-called
same-sex marriage. Five justices, elected by no one, legislated that same-sex
marriage would now be legal in all 50 states. From my vantage point, the
Supreme Court got this one supremely wrong on at least two counts: as a moral
issue and as a legal issue.
V
First, as a moral issue. Modern prophets have taught, “Man’s laws cannot
make moral what God has declared immoral” (Dallin H. Oaks, “No Other Gods,” Ensign, Nov. 2013, 75) and “Sin, even if
legalized by man, is still sin in the eyes of God” (Russell M. Nelson,
“Decisions for Eternity,” Ensign,
Nov. 2013, 108).
The scriptures and the teachings of modern prophets and
apostles are clear that homosexual behavior is a sin, just as fornication and
adultery and various other corrupt practices that are commonly tolerated in our
society are sins. Sin is sin. God defines that; I do not.
Now that probably sounds very bigoted. Those who know me
at all know that I haven’t got a bigoted bone in my body. I am simply stating
what should be obvious and self-evident. I know people who are gay. I may not
agree with them, but I still respect them. I do not hate or mock or belittle
them. I respect their rights, including now in every jurisdiction their right
to marry. I do not disparage what they have been through or what they have had
to contend with. God is the judge; I am not.
“Our culture has accepted two huge lies. The first is
that if you disagree with someone’s lifestyle, you must fear or hate them. The
second is that to love someone means you agree with everything they believe or
do. Both are nonsense” (attributed to Rick Warren, an American evangelical
Christian pastor).
It goes with saying, although unfortunately it does need
to be said, that no true disciple of Jesus Christ should ever persecute another
person for his or her beliefs or actions. As Elder Oaks has taught, “On the
subject of public discourse, we should all follow the gospel teachings to love
our neighbor and avoid contention. Followers of Christ should be examples of
civility. . . . Though we may disagree, we should not be disagreeable.”
Elder Oaks continued, “The Savior taught that contention
is a tool of the devil. . . .
“The most important setting to forgo contention and
practice respect for differences is in our homes and family relationships. Differences
are inevitable—some minor and some major. As to major differences, suppose a
family member is in a cohabitation relationship. That brings two important
values into conflict—our love for the family member and our commitment to the
commandments. Following the Savior’s example, we can show loving-kindness and
still be firm in the truth by forgoing actions that facilitate or seem to condone
what we know to be wrong” (Dallin H. Oaks, “Loving Others and Living with
Differences,” Ensign, Nov. 2014, 27).
There is a freeway billboard sign in Salt Lake that
proclaims, “God loves gays.” Well, of course He does, but implied in that
message is that He accepts illicit or sinful behavior, which He clearly does
not. To think otherwise, is simply cheap theology and deceitful, devious
doctrine.
From the beginning of time, across cultures and
centuries, the definition of marriage has been a union between a man and a
woman. A Supreme Court decision cannot change that. They may extend the benefits
of marriage to those of the same sex, but they cannot say a cat is a dog
simply because a lot of cats wanted to be dogs and felt bad that they couldn’t
be. Sometimes I think we must be in a dream, an absurd nightmare of the sort
that Alice experienced in Wonderland.
A statement by the Church that same Friday morning said,
“The Church of Jesus Christ of Latter-day Saints acknowledges that following
today’s ruling by the Supreme Court, same-sex marriages are now legal in the
United States. The Court’s decision does not alter the Lord’s doctrine that
marriage is a union between a man and a woman ordained by God.”
VI
And now second, as a legal issue. Last Friday morning I read the
majority opinion and the four dissenting opinions (all 103 pages of them) and,
regardless of one’s orientation or views on same-sex marriage, I have to
concur with all four of the dissenting justices that today is a sad day for
America and those who love the Constitution and the rule of law. For saying as
much on Facebook, in response to someone else’s post, I have already been
labeled a bigot.
“This Court is not a legislature,” Chief Justice John
Roberts observed in his dissent. “Whether same-sex marriage is a good idea
should be of no concern to us. Under the Constitution, judges have power to say
what the law is, not what it should be. . . .
“Although the policy arguments for extending marriage to
same-sex couples may be compelling, the legal arguments for requiring such an
extension are not. The fundamental right to marry does not include a right to
make a State change its definition of marriage. And a State’s decision to
maintain the meaning of marriage that has persisted in every culture throughout
human history can hardly be called irrational. . . .
“Today, however, the Court takes the extraordinary step
of ordering every State to license and recognize same-sex marriage. Many
people will rejoice in this decision, and I begrudge none their celebration.
But for those who believe in a government of laws, not of men, the majority’s
approach is disheartening. . . .
“If you are among the many Americans—of
whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s
decision. Celebrate the achievement
of a desired goal. Celebrate the
opportunity for a new expression of commitment to a
partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do
with it.”
I wish we had the space, and you as
reader the patience, to quote Justice Robert’s entire masterful dissent, as
well as the dissents authored by the other three justices who did not concur
with the majority opinion. In my judgment, all four of them gave compelling
reasons why legally this was a bad decision.
“I join the Chief Justice’s opinion in
full,” wrote Justice Antonin Scalia. “I write separately to call attention to
this Court’s threat to American democracy.”
He continues, “It is not of special
importance to me what the law says about marriage. It is of overwhelming
importance, however, who it is that rules me. 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. The opinion in these cases is the furthest extension in fact—and the
furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’
that the Constitution and its Amendments neglect to mention. 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.”
He continues, “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim
fundamentally at odds with our system of government. Except as limited by a
constitutional prohibition agreed to by the People, the States are free to
adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned
judgment.’ A system of government that makes the People subordinate to a
committee of nine unelected lawyers does not deserve to be called a democracy.”
Justice Clarence Thomas adds, “The Court’s decision
today is at odds not only with the Constitution, but with the principles upon
which our Nation was built. Since well before 1787, liberty has been understood
as freedom from government action, not entitlement to government benefits. The
Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a ‘liberty’
that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the
way, it rejects the idea—captured in our Declaration of Independence—that human
dignity is innate and suggests instead that it comes from
the Government. This distortion of our Constitution not only ignores the text, it inverts the
relationship between the individual and the state in our Republic.”
And, finally, from Justice Samuel
Anthony Alito: “Today’s decision usurps the
constitutional right of the people to decide whether to keep or alter the
traditional understanding of marriage. The decision will also have other
important consequences. It will be used to vilify Americans who are unwilling
to assent to the new orthodoxy. In the course of its opinion, the majority
compares traditional marriage laws to laws that denied equal treatment for
African-Americans and women. The implications of this analogy will be exploited
by those who are determined to stamp out every vestige of dissent.
“Perhaps recognizing how its reasoning may be used, the majority
attempts, toward the end of its opinion, to reassure those who oppose same-sex
marriage that their rights of conscience will be protected. We will soon see
whether this proves to be true. I assume that those who cling to old beliefs
will be able to whisper their thoughts in the recesses of their homes, but if
they repeat those views in public, they will risk being labeled as bigots and
treated as such by governments, employers, and schools. 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 is likely that some
States would recognize same-sex marriage and others would not. It is also
possible that some States would tie recognition to protection for conscience
rights. The majority today makes that
impossible. By imposing its own views on the entire country, the
majority facilitates the marginalization of the many Americans who have traditional
ideas. Recalling the harsh treatment of gays and lesbians in the past, some may
think that turn-about is fair play. But if that sentiment prevails, the Nation
will experience bitter and lasting wounds.
“Today’s decision will also have a fundamental effect on
this Court and its ability to uphold the rule of law. If a bare majority of
Justices can invent a new right and impose that right on the rest of the
country, the only real limit on what future majorities will be able to do is
their own sense of what those with political power and cultural influence are
willing to tolerate. Even enthusiastic supporters of same-sex marriage should
worry about the scope of the power that today’s majority claims. Today’s
decision shows that decades of attempts to restrain this Court’s abuse of its
authority have failed.”
VII
Now, a few words in conclusion. For all this to work for same-sex
marriage proponents, they have to get rid of religion and morality. They have
to get rid of Christianity, which will always be a thorn in their side and a
prick to their conscience. They know this. They acknowledge this. And the
assault has long since begun. In their eyes, America can no longer be a
Christian nation. It must become thoroughly humanistic and secular. Religion
and faith can have no place in the public arena.
The Constitutionally protected and enumerated freedoms of
religion and speech and assembly, according to this assault, now have to bow
to concocted freedoms and political correctness.
A characteristic of elitists and those on the left end of
the political spectrum is that freedom of speech, for example, is all good and
fine as long as it does not disagree with what they believe. Otherwise, they
brand it as hate speech or bigotry or stupidity. They use it to demean or
belittle or ridicule. They employ it to get people ostracized or dismissed or
fired, just as Justice Alito predicted. They somehow miss or are willfully
ignorant of their own hypocrisy.
We in the Church believe that in fulfillment of prophecy
the Lord is now hastening His work in the earth. The end must be near. Satan
knows this of course, so he too is currently hastening his work. He is freely
marketing his evil. These are to be “days of wickedness and vengeance” (Moses
7:60). The skirmishes may become quite intense. We are in for an interesting
ride.
But the Lord’s purposes in the end result in “peace, justice,
and truth . . . and mercy” (Moses 7:31). So, armed with faith and the power of
righteousness, and led by revelation, the saints of God in this dispensation
ultimately prevail. We can take comfort in knowing who wins the war.