Americans Are Independent But Are They Still Free?

LGBT-shariaA majority of the honorable Supreme Court of the United States has recently judged that, whereas as recently as 2013 the court had asserted that marriage law is the province of the states, homosexuals have a constitutional right under the 14th amendment to civil marriage. Some of the dissenting opinions, most especially that of Justice Thomas, however, warn that religious liberty is now in serious jeopardy. That warning is not hyperbole. Brad Avakian, Oregon Labor Commissioner, has not only fined Aaron and Melissa Klein $135,000 for refusing to violate their conscience, for the free exercise of religion, but he has also issued a gag order demanding that the Kleins “cease and desist” from speaking and writing publicly about their refusal to participate in a homosexual wedding. The order says:

The Commissioner of the Bureau of Labor and Industries hereby orders [Aaron and Melissa Klein] to cease and desist from publishing, circulating, issuing or displaying, or causing to be published … any communication to the effect that any of the accommodations … will be refused, withheld from or denied to, or that any discrimination be made against, any person on account of their sexual orientation.

It is not unusual for a judge to issue a gag order on parties in a civil or criminal proceeding, while it is underway. As near as I can determine, however, Avakian is an elected official but not a judge. It seems unusual for a labor commissioner (or any official of that sort) to issue such a cease and desist order. An administrative law judge has already rejected Avakian’s action but the commissioner has persisted. The attorney for the Kleins is surely right when he calls this order an “outrageous abuse.” Judging by Avakian’s Twitter feed he would seem to be a partisan on one side of the issue of same-sex marriage.

If Avakian is acting according to Oregon law (which will certainly be tested in court) it would not be the first time that Oregon has ignored basic civil liberties. J. Gresham Machen complained in 1933:

That right [civil and religious liberty] has been attacked in America in recent years in the most blatant possible ways. In Oregon, a law was actually passed some years ago requiring all children to attend the public schools—thus taking the children from the control of their parents and placing them under the despotic control of whatever superintendent of education might happen to be in office in the district in which they resided. In Nebraska, a law was passed forbidding the study of languages other than English, even in private schools, until the child was too old to learn them well. That was really a law making literary education a crime. In New York, one of the abominable Lusk Laws placed even private tutors under state supervision and control.

Avakian’s actions demonstrate the weakness of Justice Kennedy’s language, written in the majority opinion in Obergefell:

Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.

The majority seems to assume that religion is something that exists in church, in temple, in the mosque, or in the home but that is sequestered from daily life. This is not what the Founders of our Republic assumed nor is it what they wrote. The first Amendment speaks of the “free exercise of religion. To this point In his dissent, Justice Roberts reminded the majority:

Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.

He warns,

The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante, at 27. The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.

In his dissent, Justice Thomas used even stronger language to warn about the inevitable negative consequences for religious and other civil liberties of the majority opinion in Obergefell. In 1933 Machen used the word “tyranny” to describe the attempt by Oregon, Nebraska, and New York to control the educational choices made by their citizens. If that was tyranny what word should we use to describe the majority opinion in Obergefell? What word should we use to describe the attempt by an elected labor commissioner in Oregon to silence dissent from his ruling?

Almost as disturbing as the majority opinion in Obergefell and almost as disturbing as Avakian’s apparent attempt to remove from the Kleins their first Amendment protections, is the news that 19% of Americans polled believe that religious institutions ought to be forced to conduct same-sex weddings. In the same poll, 26% of those under 40 think that religious institutions should be required, forced to conduct same-sex weddings. This is a remarkable proportion that is sure to grow.

Americans who still believe that civil liberty is, by definition, the relative absence of governmental restraint upon the freedom of speech, the relative absence of restraint upon religious practice, the absence of prior restraint upon the press and other basic liberties (e.g., life, liberty, and the pursuit of happiness relative to civil life) need to assert their conviction or those who have a utopian eschatology, a vision of the future that cannot tolerate dissent, that does not include religious liberty or any other civil liberties will continue to grow. Presumably, that 26% of those under 40, who do not seem to understand that basic constitutional protections still apply, who do not seem to understand that courts err but they do, egregiously. For example, , the court held in a 7-2 majority, in 1857, in Scott v Sanford that Scott, a slave, could not be a citizen of the United States and therefore was not protected by the Constitution. This decision was so bad that it was overturned by not one but two amendments to the constitution of the United States (13th and 14th).

If Scott v Sanford could be reversed by a constitutional procedure it is puzzling why so many pundits have already decided that neither Roe v Wade (1973), Doe v Bolton (1973), decisions as bad as Scott v Sanford, and Obergefell could not be reversed by constitutional action. Before those avenues are pursued, however, it is evident that there is an great, an immense need to educate millions of Americans in basic civics. It does not seem too much to say that if we do not, we may be independent but we will not long be free and will not have been “the communists” nor “the Jesuits,” or any other outsider feared by conspiracy theorists that shall have taken our constitutional liberties. We shall have done it to ourselves through negligence, ignorance, and sheer stupidity.

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  1. “Today’s decision…creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority— actually spelled out in the Constitution. Amdt. 1.” Justice Roberts

    We are losing our Constitutional rights and religious liberty in particular because a great cosmological shift that occurred in the seventeenth century deconstructed man as the spiritual image bearer of God to dehumanized product of the evolving universe of matter and energy.

    In the meticulously researched work of intellectual history, “Politicizing the Bible,” Scott Hahn and Benjamin Wiker argue that nothing can be rightly understood about the historical-critical method and the politicization of Scripture if close attention is not paid to the cosmological shift. What the shift yielded was both a secular (anti-supernatural and wholly naturalistic or monistic) understanding of the universe, philosophy and scientific method and a secular-pagan understanding of man and politics:

    “The two occur as part of one revolution because the shift in the meaning of nature includes human nature as well.” (p. 257)

    The authors write that it was Descartes, Hobbes, and Spinoza among others who redefined nature so that it was ontologically mathematical and mechanical, thereby paving the way for the universe to be entirely law-governed, self-contained (closed to the supernatural), self-sustaining, mechanical and evolutionary. This view necessitated that the active, living, creating, and redeeming Holy God of Old and New Testament be redefined in one of three ways: as a deistic god that created matter, mechanical mechanisms and formative evolutionary processes that over time allows things to make themselves, or a divine evolutionary force (pantheism) within nature, or be simply rejected by the more radical of the radical Enlightenment. (pp. 272-273 &544)

    In the man centered cosmology, the gap between the Mind of God and the mind of man, and the supernatural and natural were closed. Thereafter, the exalted mind of the god-man and the content of the mathematical-mechanical universe defined what method was appropriate to its illumination. (p. 545)

    The approach to the Word of God followed suit, meaning that an evolutionary modernist understanding completely defines the ‘new’ approach to the interpretative deconstruction of the Bible:

    “Since miracles had been excised from nature, they had to be removed from the text. Since nature was entirely defined by mathematics, knowledge of mathematical-mechanical laws displaced prophecy, and so prophecy had to be removed from the text. In fact, since there was, with pantheism, assumed to be an identity of the logos of nature with the Logos of God, scientists who studied the logos of nature provided the highest revelation possible, thereby demoting the revelation contained in the Bible as at best puerile. All that was left, so it seemed, was the moral message of the text, and the focus on the Bible as merely moral reinforced its politicization.” (p. 544)

    All that is left is a desacralized book of moral messages for hominids—the uncreated products of evolution; mere aspects of the evolving universe; parasites draining goddess Gaia of her life-sustaining natural resources.

    Western civilization and America in particular rose on the wings of a Biblical/Christian-grounded cosmology and worldview. Vishal Mangalwadi, India’s foremost Christian scholar affirms that the Christian gift of personhood gave birth to the “belief in the unique dignity of human beings,” and this is,

    “…the force that created Western civilization, where citizens do not exist for the state but the state exists for the individuals. Even kings, presidents, prime ministers, and army generals cannot be allowed to trample upon an individual and his or her rights.” (Truth and Transformation: A Manifesto for Ailing Nations, pp. 12-13)

    Whether the Founders were individually Christian or not there was among them a strong Christian consensus, especially with respect to the historically unique Christian conception of personhood. The term ‘person’ originated in Christian theologies developmental struggle to comprehend the nature and experience of the transcendent, personal Triune God:

    “The derivative concept of human personhood is a gift of the Christian faith to culture…” (Stephen P. Stratton, Chapter 14, p. 247, The Self, Paul Vitz & Susan M. Felch, Editors)

    It is on this historically unique Christian definition of person that America’s Constitutional Republic is grounded, making America’s founding documents great spiritual documents delineating the God-given spiritual property and temporal rights of “we the people.”

    Furthermore, as all men are created spiritual equals in the eyes of God, then life, worth, dignity and other unalienable rights are conferred upon each human person at conception. For example, freedom of religion and speech are the temporal manifestations of a person’s God-given spiritual property of conscience and reason.

    In “Property,” published in The National Gazette on March 29, 1792, James Madison clearly defines the meaning of a person’s God-given spiritual property, some of its’ temporal manifestations and the meaning and intent of just government as opposed to unjust government:

    “He has a property….in his religious opinions, and in the profession and practice dictated by them.” “He has a property…in his opinions and the free communication of them.” “He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.” “He has property very dear to him in the safety and liberty of his person.”

    Property is,

    “….a man’s land, or merchandize, or money (and) as a man is said to have a right to his property, he may be equally said to have a property in his rights. Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties or his possessions.”

    Government is instituted to protect property of every sort:

    “This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” (Samuel Rutherford, Lex Rex;

    The Constitution therefore, recognizes the divine nature of man’s creation, that man is a person endowed by his personal Creator with spiritual property, a divine right to life and liberty, and the means of acquiring and possessing property. Hence our Republic recognizes Law is unchangeable because the Creator of “we the people” is the Lawgiver:

    “It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act; and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted. These rights cannot well be separated.” (James Madison, Speech at the Virginia Convention, December 2, 1829)

    How does one determine whether a law is just or unjust?

    ” A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.” (Martin Luther King, Excerpts from his Letter from the Birmingham Jail, Apr. 16, 1963)

    In keeping with Christian thought, George Washington and Benjamin Franklin connect personhood, virtue and self-control with individual freedom:

    “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.” Benjamin Franklin, quoted in Born Liberal Raised Right, p. 15)

    Conversely, they connect corruption, anarchy, and barbarism with man’s sin nature:

    “The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet” and “Thou shalt not steal” were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.” (John Adams, A Defense of the American Constitutions, 1787,

    In this light, how does one determine whether a law is just or unjust?

    ” A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.” (Martin Luther King, Excerpts from his Letter from the Birmingham Jail, Apr. 16, 1963)

  2. “In the same poll, 26% of those under 40 think that religious institutions should be required, forced to conduct same-sex weddings. This is a remarkable proportion that is sure to grow.”

    It’s not remarkable at all. I currently live in what’s considered a conservative part of the country and attend a PCA church that is considered confessional by some in the PCA (who seem to think that’s a pejorative). While many kids attend a local Christian school or are homeschooled, I was surprised even ten years ago how many of those who attended public schools assumed that gay marriage was an obvious right. While this is antidotal and hardly scientific, I suspect this is representative of schools across the nation. And this pales in comparison to the anti american trash that is taught in universities (this was true 20 years ago when I was in college and it’s gotten worse since). There have been comments made on Christian sites after the recent scotus decision lamenting the sudden change, but the change happened years ago, we are just seeing the manifestation of it now.
    A more interesting survey question to ask would be to find out how many younger people think the constitution should even still exist. A lot of Christian writers seem to be putting a lot of stock in it, but younger folks don’t seem to. It won’t save us. If scotus can find marriage equality (the term for it used on NPR approximately 47 times a day on average over the past year) in it, they can find anything. The Bible is protected under freedom of religion and freedom of speech? Obviously the founders could not possibly have intended to protect hate speech right? Turn that into a few pages of legal jargon and you have a future scotus opinion.

  3. Scott, I think “the gag order” has been a bit overplayed. If you look at the law it is enforcing, its purpose is to forbid something like “McDonald’s doesn’t serve blacks/Jews/homosexuals.” But it might not be on a sign at the McDonald’s counter. It could be on the radio, on a website, etc. Meanwhile the McDonald’s franchise owner is free to, on his own personal behalf, say whatever he wants about blacks/Jews/homosexuals/other protected class. So the bakery owners are not being forbidden from talking about rights, homosexuality, or justice – they cannot publicize that “Sweetcakes by Melissa” refuses to serve gays for their marriages.”

  4. The Kleins might not be objective about the whole thing. It seems to me that both the LGBT side and the socially conservative side have behaved badly.

  5. If the starting point for our search for truth and reality is “So God created man in his own image, in the image of God created he him; male and female created he them.” then we know there is only one human race consisting of only two sexes and multiple skin colors. Thus “gay” has nothing to do with “race” but with sinful compulsions. Only if our starting point is Darwinism with its inverted exegesis posting life from inert matter ascending up through seaweed, lizards, birds, and apes does it become possible to argue (however illogically) that “gay,” a cloaking term for sodomy, sado-masochism, pedophilia, pederasty, lesbianism and transgender (androgyny) is a new “race” consisting of emergent genders.

    However, as Darwinism implies continues change it is actually a species of subjectivism and deconstruction. It is a two-pronged fork, a hellish spike scepter of relativism and deconstruction that with one tine serves up an anti-creation account –— an inverted exegesis that reduces man in the spiritual image of the Holy Trinity to evolved ape, and with the other argues that since humanity has evolved from lesser to greater biological organisms, the same change process is in play in the area of morals, biblical infallibility, unchanging truth and reality. Therefore, all that can be known at present – and forever – is that there is no absolute or fixed certainty about anything—-including Darwinism, reality, truth, and “gay” as new race consisting of emergent genders.

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