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The DOMA Decision: Why the SCOTUS got it wrong


The other day the Supreme Court issued two rulings that helped to take America in the absolute wrong direction; the decisions on the Defense of Marriage Act (DOMA) and Proposition 8 can only be viewed as flagrant abuses of power and further steps towards an immoral society ruled by big government. These decisions were no victories for freedom; they were in fact the exact opposite. But what is even sadder is that Libertarians, as well as a small group of Conservatives are hailing the Court’s actions as being a good thing! To show this, let’s look to two of my friend’s Facebook statuses dealing with the issue; the first reading:

“The Defense of Marriage Act, giving the federal government free-reign in defining marriage, has been overturned in a 5-4 vote in the Supreme Court. Today is a victory for marriage freedom and equal rights. Now let’s just leave the rest to the 10th amendment.”

Never mind the fact that DOMA did no such thing; it did not give the federal government free-reign to define marriage for everyone. What it did do was give the government the right to define marriage for the purposes of federal benefits, which is totally reasonable. (1) DOMA in no way usurped States rights, as the States were already making their own decisions on what marriage means in their state (not that that is a good thing, for reasons I detail here).

Needless to say, this decision was not a victory for marriage freedom, it was actually a blow to marriage and freedom in general (but you can read all about that in the link above, as well as in the writings of the Founding Fathers); the author of this status misses the point entirely by redefining the debate, but then again he IS a Libertarian so I really shouldn’t be so surprised. The second status from my newsfeed sarcastically proclaimed:

“Gay Marriage is now constitutional! And…wait for it..wait for it…no flying pigs…no four horsemen of the apocalypse…the sky’s still blue and the sun still shines…Would you look at that? It didn’t affect me!”

The snarky nature of this comment adds to the support this person has for gay marriage, and to be honest, it is quite sickening to say the least. Now there is something I must correct in this status; my friend acts as if gay marriage is now legal nationwide, and it’s not…for now. The individual states still make the decision on gay marriage for their state (like they did under DOMA); it’s just that the federal government has to recognize these “new marriages” for benefit purposes.

That being said let me address the snark, because it illuminates a much bigger problem; even if gay marriage had just become legal in all 50 states, no one, and I mean NO ONE said that the moment it happened there would be mass problems. To try to mock the anti-gay marriage crowd by snickering about how the “apocalypse didn’t happen” does nothing to add to the discussion, and it once again mis-defines the debate in order to make the writer look (supposedly) smarter.

Again, we never claimed that all the problems would hit at once; our entire point is that when gay marriage becomes legal and is viewed as another norm, our rights and freedoms will decrease over time. Anyone who even remotely studies history can see that often times the problems happen as time goes on, not all at once; and as they say, those who don’t learn their history are doomed to repeat it. And one not need look very far back in history to see the consequences; the author said he was not affected? This is simply not true, because the legalization of gay marriage leads to violations of free speech and religious conscience.

One needs look no further than Canada to see the effects of gay marriage and homosexuality being viewed as “normal”; simply look at the case of William Whatcott, a man who’s grand crime was handing out anti-gay flyers with biblical messages on them:

“The Supreme Court of Canada has ruled that Biblical speech opposing homosexual behavior, including in written form, is essentially a hate crime. On Wednesday, the court upheld the conviction of activist William Whatcott, who found himself in hot water after distributing flyers regarding the Bible’s prohibitions against homosexuality…in 2001 and 2002…”The Bible is clear that homosexuality is an abomination,” one flyer that was found to be in violation stated, citing 1 Corinthians 6:9. “Scripture records that Sodom and Gomorrah was given over completely to homosexual perversion and as a result destroyed by God’s wrath.” (2)

Because Whatcott handed out anti-gay fliers with Bible verses on them, apparently he participated in illegal hate speech (at least according to the Canadian court); what happened to his right to free speech? What happened to his right to religious speech? Apparently using the Bible in your argument is against Canadian law, if it speaks out against the actions of a particular group.

“The Supreme Court noted in its opinion, among other concerns, that Whatcott’s use of the Bible to target homosexuals was a problem. “[Whatcott’s] expression portrays the targeted group as a menace that could threaten the safety and well-being of others, makes reference to respected sources (in this case the Bible) to lend credibility to the negative generalizations, and uses vilifying and derogatory representations to create a tone of hatred,” the panel ruled on Wednesday.” (2)

It is plain to see what is so horrible here; if a Christian can’t quote what the Bible says on homosexuality, does he really have freedom of religious speech? The answer is quite frankly no; his rights are being abused and tossed by the wayside in the name of tolerance. Even if this currently only happens in the rarest of circumstances, the fact that it can happen at all is frightening. If one doesn’t think that this could ever happen in America, they are sadly mistaking; this is what is coming, and if they don’t think that we will follow Canada’s example on this, perhaps they should revisit the whole healthcare debate again.

But Canada isn’t the only country that shows the consequences of gay marriage/homosexual acceptance in regards to religious freedom, as Sweden provides another prime example:

“A Swedish pastor who preached a sermon on the Biblical prohibitions against homosexual behavior is waiting to see if the Supreme Court of Sweden will send him to jail for six months for doing so. Ake Green, the pastor of a small-town Pentecostal church, delivered his sermon in 2003 and has been in the prosecutor’s crosshairs ever since. Charged with violating a Swedish hate speech law that protects homosexuals from “intimidation” and “agitation,” he was sentenced to a month in jail last year by a district court. An appeals court overturned his conviction, but the prosecutor has appealed to the Supreme Court and has asked that the 68-year-old pastor’s jail term be increased to six months…This is because Sweden has a law that “prohibits the expression of ‘disrespect’ towards favored minority groups,” explained Jared Leland of the Becket Fund for Religious Liberty.” (3)

The fact that a Pastor can even be put on trial for preaching what the Bible says about homosexuality is disturbing, and that he could go to jail if the Court so wills it, is an even scarier proposition. So much for freedom of religion! Again, don’t be fooled into thinking this could never happen in America, current world events are proving that it can and will. Even American Pastor’s have to deal with these problems:

“An American pastor is facing a federal lawsuit filed by a George Soros-funded organization alleging that the pastor’s messages on homosexuality are a “crime against humanity” – a lawsuit that some Christians fear might have far-reaching consequences for church mission groups…Scott Lively, a Massachusetts pastor known for his opposition to homosexuality, was sued by Sexual Minorities Uganda (SMUG). They claim that he incited the persecution of homosexuals in Uganda. Lively traveled to Uganda in 2009 where he delivered messages that shared his Biblical views on homosexuality.” (4)

This story hits a little closer to home; if an American Pastor can be sued for preaching a sermon in Uganda, or having views on homosexuality that are not favorable, what else can happen? Do people really think that this won’t become normal in America if we keep accepting the homosexual agenda? If we continue down the road we are on, Americans, particularly Christians, will have damage done to their rights; but there is even more American based proof of this.

Take for example the case of a Washington State Florist:

“A Washington florist is being sued by the state’s attorney general for refusing to provide flowers for a gay wedding. Barronelle Stutzman owns Arlene’s Flowers in Richland, Wash. She objected to selling a gay customer flowers for his same-sex wedding because of her Christian faith. Washington state Attorney General Bob Ferguson filed a consumer protection suit against Stutzman. He says Stutzman discriminated against the customer based on his sexual orientation.” (5)

Or perhaps we should look at the example of a Baker from the state of Oregon:

“A Christian baker is under a state investigation in Oregon after he refused to make a wedding cake for a same-sex couple. The Oregon Attorney General is investigating Aaron Klein, the owner of Sweet Cakes by Melissa. Klein reportedly refused to make a wedding cake for two lesbians. Klein, who is a Christian, told the couple that he would not sell them a cake based on his religious beliefs that marriage should be between one man and one woman. One of the women filed a complaint alleging that his actions violated the Oregon Equality Act. If the baker is found guilty, he could face $50,000 in fines. Religious beliefs don’t outweigh state law, attorney Matthew Ellis told the Portland Tribune. (6)

Not to mention the tale of another Baker in Colorado:

“Masterpiece Cakeshop, owned by Jack Phillips and based near Denver, Colorado, is at the center of the dispute after David Mullins and Charlie Craig attempted to order the baked good from the business last summer. Phillips, declining to provide service after learning of the couple’s sexuality, cited his Christian beliefs. But Mullins and Craig aren’t accepting Biblical arguments as a viable basis for the refusal…Last week, the Colorado Attorney General’s office also filed a formal complaint. If the baker loses and continues to refuse service to gays and lesbians, he could be fined $500 per instance — and given up to a year in jail, his attorney claims. Phillips will stand in front of the state’s Civil Rights Commission in September.” (7) We should not forget that this happened a few years ago with a Canadian block printer as well. (8)

With Christians already being sued in this country for refusing service due to religious beliefs, it seems laughable that gay marriage proponents on either side expect us to believe that this won’t become more widespread with the full legalization and acceptance of gay marriage in this country. It is a simple fact that if gay marriage is nationally legalized, Christians all over this country will be sued and forced to have their rights to religious conscience constantly threatened; my friend and others think that this will not affect them or people like them? They should really think again.

There is one more issue to address here; one of the reasons some on the right incorrectly laud the DOMA ruling as a good decision is because they mistakenly believe that this will make it so that the States will have all the power in defining marriage and the federal government will have none, but this is simply not true:

“Even as they celebrate a momentous legal victory, supporters of gay marriage already are anticipating a return trip to the Supreme Court in a few years, sensing that no other option but a broader court ruling will legalize same-sex unions in all 50 states. In the meantime, as one gay-rights leader said, there will be “two Americas” — and a host of legal complications for many gay couples moving between them…“It would be inefficient to try to pick off 30 constitutional amendments one by one,” said Fred Sainz of the Human Rights Campaign, a national gay-rights group. “Eventually this will have to be settled by the Supreme Court.” (9)

In other words my friends, the fight is far from over; the homosexual community will continue to push for national legalization, going back to the Supreme Court in order to overturn what the States have duly decided for themselves; the DOMA decision was only step one in the process.

In closing, Hadley Arkes makes an excellent point about the future of this country after this ruling:

“As Scalia suggested, that opinion can now become the predicate for challenges to the laws on marriage in all of the States. A couple of the same sex need merely go into a federal court and invoke Justice Kennedy’s opinion in the DOMA case (U.S. v. Windsor): The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate…That may be enough to have the laws and the constitutional provision overruled. But it gets even better if the state has a Democratic governor: For he may declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution…” (10)

Dr. Arkes provides a very good dissection about what these decisions really mean and what might be done to counteract them, and I encourage everyone to go read his fantastic work.

The Supreme Court made two major mistakes in their rulings this week, making decisions that will help to negatively change this country for years to come; but what is worse is that so called freedom and limited government loving Libertarians, as well as a handful of Conservatives stood by cheering as the things they claim to love started circling down the drain. This was not the first time that in the name of liberty we have seen liberty’s antithesis be promoted, and sadly, it will not be the last.

Sources Used

1. The Right Scoop, Mark Levin:

2. Christian News:

3. Chalcedon.Edu:

4. Fox News:


6. Fox News:

7. The Blaze:

8. Life Site News:

9. The Blaze:

10. National Review: