US elitists plotting to weaponize gay ‘marriage’ and stamp out dissent
Five justices of the Supreme Court found an
unwritten “fundamental right” to same-sex marriage hiding in the due process
clause of the Fourteenth Amendment—a secret knowledge so cleverly concealed in
the nineteenth-century amendment that it took almost 150 years to find.
Facebook and the White House were awash in rainbow flags proclaiming the
arrival of “marriage equality.”
Just three weeks after Obergefell,
congressional Democrats filed House (H.R. 3185) and Senate (S. 1858) versions
of the “Equality Act,” seeking to add “sexual orientation” and “gender
identity” to the protected classes listed in the federal code. Americans are on
an “equality” roll. What could go wrong?
As it turns out, quite a bit. If enacted, the deceptively titled
Equality Act would punish dissenters who disagree with same-sex marriage by
using the enforcement tools of the amended Civil Rights Act of 1964, but with
even greater force and scope. The Equality Act seeks to weaponize Obergefell, moving with
lightning speed from a contentious five-to-four victory on same-sex marriage to
a nationwide rule that “sexual orientation” and “gender identity” are
privileged classes that give no quarter to Americans who continue to believe
and seek to exercise their
millennia-old religious belief that marriage and sexual relations are reserved
to the union of one man and one woman.
The Contents of the Law
So, in concrete terms, what would the proposed law do? Here are
just a few of the potential areas of impact, given how the Equality Act would
amend various provisions of the Civil Rights Act:
- Employment: would amend Title
VII to create new protected classes for “sexual orientation” and “gender
identity,” with no countervailing exemptions for faith-based organizations that
maintain internal standards of sexual conduct rooted in longstanding religious
tenets.
- Federal Programs: would amend
Title VI, historically limited to race, color, and national origin, to create
new protected classes for “sex, sexual orientation, gender identity,” with no
countervailing protections for faith-based providers who willingly serve every
program-eligible person but maintain internal standards of sexual conduct
rooted in longstanding religious tenets.
- Public Accommodation: would
drastically expand the Title II definition of “public accommodation” to cover
“gatherings” and facilities historically owned and operated by churches or
religious organizations—“shelters,” “food banks,” and “care centers”—extending
far beyond the categories at issue during the Civil Rights Movement: common
carriers (freight, bus, taxi, train, and air lines), public utilities, hotels,
restaurants, and entertainment venues.
- Public Education: would amend
Title IV definitions of “desegregation” to include new protected classes for
“sexual orientation” and “gender identity,” placing in the litigation
crosshairs all sex-restricted facilities like dormitories, restrooms, or locker
rooms.
- Religious Freedom Restoration
Act: would omit exemptions for religious organizations contained in prior
drafts of the Employment Non-Discrimination Act (ENDA), and expressly state
that the Religious Freedom Restoration Act (RFRA) may not be used as a defense
or a basis for challenging the Equality Act.
- Sex: would enter a
congressional finding that “federal agencies and courts have correctly
interpreted [] prohibitions on sex discrimination to include discrimination
based on sexual orientation, gender identity, and sex stereotypes,” thereby
adopting the EEOC’s most aggressively extra-textual recent rulings.
- Bona Fide Occupational Qualifications: would amend
Title VII exemptions for employers who have sex-based “bona fide occupational
qualifications” (BFOQ) for specialized jobs—for example, male security guards
in a maximum security prison or female undercover officers in a sex-trafficking
sting operation—to require recognition of persons “in accordance with their
gender identity.”
Unlike ENDA, the Equality Act does not even feign an equal
balancing of sexual liberty and religious liberty. Like some voracious legal
Pac-Man, the Obergefell-fueled
Equality Act devours any preexisting constitutional rights that might impede
absolute victory in the march for “marriage equality”: speech, association,
assembly, and the free exercise of religion. The Equality Act boldly declares
that some constitutional rights are “more equal than others.”
That ‘70s Show
We’ve been here before.
On January 22, 1973, seven justices of the Supreme Court found
an unwritten “fundamental right” to abortion hiding in the due process clause
of the Fourteenth Amendment and the shadowy “penumbras” of the Bill of Rights,
a celestial phenomenon invisible to the non-lawyer eye. In the minutes and
hours that followed, the New
York Times predicted that Roe represented “an historic resolution of
a fiercely controversial issue.”
But Roe did
not resolve the fierce controversy of abortion. Instead, sexual revolutionaries
suffered loss after loss when they rammed Roe into state and municipal policies
restricting public funds or forced participation in the “fundamental right” of
abortion. See, for example, Beal v. Doe (1977), Maher v.Roe (1977),
and Poelker v. Doe (1977).
This losing streak continued into the 1980s, when the Supreme Court affirmed
the federal Hyde Amendment and state laws prohibiting the use of public
facilities and public employees for elective abortions. See Harris v. McRae (1980) and Webster v. Reproductive Health Services (1989).
The Court’s underlying rationale was simple. It was also
consistent with the Constitution as a “charter of negative liberties”: the
right to have an abortion does not include the right to force taxpayers or
conscientious objectors to participate in the process.
Moving into the twenty-first century, legislatures
counterbalanced the “fundamental right” to abortion with more and more
protections for conscientious objectors. These included (1) the Church
Amendments prohibiting forced participation in abortion and sterilization
procedures, (2) Public Health Service Act prohibitions on abortion-related
discrimination in program funding, (3) Weldon Amendment protections for health
providers who refuse to cover or refer for abortions, and (4) licensure and
lawsuit protections for pharmacists who refuse to dispense contraceptive or
abortifacient drugs.
In short, the unwritten right to abortion gradually approached
equilibrium with the freedom to exercise religion—which, as Chief Justice
Roberts pointed out, is “actually spelled out
in the Constitution.” Today, pro-abortion and pro-life adversaries continue to
litigate the points where the unwritten constitutional right to abortion
collides with written constitutional rights to speech, association, assembly,
and religion.
The Long War Ahead
On July 29, Catholic News Agency reported
on statements made at the Out & Equal conference in San Francisco, where a
speaker declared:
We are at a crossroads where the choices we make will
mean we will fight religious exemptions for two to three years or have a
protracted twenty-year struggle on our hands.
Despite the euphoric media reaction to “marriage equality” and
the rush to enact the Equality Act before President Obama leaves office, the
post-Obergefell trajectory
will probably look less like a two-year dash to the finish line and more like
the “protracted” timeline of post-Roe litigation
and legislation. That is, the new “fundamental right” to same-sex marriage will
be made to coexist alongside meaningful exceptions for religious dissenters.
I make this prediction for three reasons. First, the vast
majority of Abrahamic religious denominations in America—Catholic, Protestant,
Evangelical, Jewish, Mormon, Muslim—continue to define marriage as the sacred
union of one man and one woman, accounting for over 100 million Americans. For
two millennia, Christians have based their definition of marriage on the “red
letter” words of Jesus Christ, who incorporated 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 no longer
two but one flesh.
Whatever the faith-distinctive term—sacrament, covenant, kiddushin, nikah—Americans in the growing Abrahamic
denominations will continue to preach and seek to exercise their sincere
religious belief that marriage is the sacred union of one man and one woman.
Because marriage is a central tenet to all, religious liberty issues will
persist and intensify in the post-Obergefell world.
Second, though politically potent in the short term, the analogy
to interracial marriage is ahistorical and illogical. All of Christendom
permitted interracial marriage until eighteenth-century slaveholders devised a
political lie to suppress an inconvenient truth: one man and one woman can and
do unite to create interracial children, so skin color is irrelevant to
marriage.
Click "like" if you want to defend
true marriage.
Some southerners wrapped their racist politics in the rhetoric
of religion, but an even larger coalition of Catholics, Protestants, and Jews brought
an end to “racial purity” laws using direct appeals to shared religious
principles. In fact, the very first case striking
down an anti-miscegenation statute was brought by Roman Catholics who made
religious liberty arguments against the state of California. Consequently, the
“religious liberty equals racism” argument cannot withstand serious scrutiny.
Third, despite repeated attempts to meld the two into one “right
side of history” campaign, the Sexual Revolution is not the Civil Rights
Movement. Both started in the post-war boom and gained ground in the social
upheaval of the 1960s and 1970s, but they share almost nothing else in common.
They have different origins, different leaders, different objectives, and
different legacies.
The former was rooted in the soil of the uniquely American
Judeo-Christian tradition, spearheaded by Christian leaders, and was
essentially “moderate” in its demands. It sought the restoration of civil
rights won in the Civil War and ratified in the Thirteenth, Fourteenth, and
Fifteenth Amendments, with additional, necessary protections for the mediating
institutions essential to the African-American community: family, home, church,
school, and business. In this way, the Civil Rights Movement was like the
American Revolution, seeking to restore rather than destroy.
The latter was rooted in the soil of elitist postmodern philosophy,
spearheaded by secular libertines, and was essentially “radical” in its
demands. It sought public affirmation of the lie that the human person is an
autonomous blob of Silly Putty unconstrained by nature or biology, and that
marriage, sexuality, gender identity, and even the unborn child must yield to
the erotic desires of liberated adults. In this way, the Sexual Revolution was
more like the French Revolution, seeking to destroy rather than restore.
The former has achieved near-absolute victory in winning over
the hearts and minds of the American people. The latter is mired in a
continuous culture war, pitting sexual liberty against religious liberty in
fights over pornography, divorce, abortion, and HHS mandates. The butcher, the
baker, the candlestick maker are all forced into battle.
A Better Alternative
Polls now show that a majority of Americans favor sexual liberty and religious liberty.
Because it decrees absolute victory for the sexual revolutionary without
protecting the religious dissenter, the Equality Act is not a serious attempt
to achieve equilibrium between the two.
In contrast, the First Amendment Defense Act (FADA) does nothing
to upset the holding in Obergefell but
does prohibit the federal government from discriminating against persons who
continue to believe in man-woman marriage. This gives real effect to the
closing words of Justice Kennedy’s majority opinion in Obergefell:
Finally, 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 their lives and faiths, and to their own deep
aspirations to continue the family structure they have long revered.
FADA is a better start to the long road ahead.
Matthew Kacsmaryk is Deputy General Counsel for the Liberty
Institute in Dallas, Texas. He previously served as an Assistant United States
Attorney for the Northern District of Texas. Reprinted with permission
from The
Witherspoon Institute.
