28 June 2015


In the majority opinion in Obergefell v. Hodges, 576 US ___ (2015), Justice Kennedy took great pains to try to differentiate the import of the decision.  He wrote

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. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

Unfortunately, language such as this in an opinion is known as dicta.  Dicta, from the Latin dictum (“remark”), is the part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar.  It is extraneous material which is merely informative or explanatory and which is not required to reach the decision. While it may be cited in later legal argument, it does not constitute precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment. Opposing counsel’s appropriate argument is: "Your Honor, that is merely dicta and is not binding on the Court or the case at bar."

In other words, it is worth less than the paper on which it is written.

And the attempts to use Obergefell as weapon have begun.  Mark Oppenheimer, an admitted supporter of same-sex marriage, has written an interesting and alarming article for Time.  Titled Now’s the Time To End Tax Exemptions for Religious Institutions, he uses a well-known propagandists’s technique to advocate for government control of churches and religious matters.  He does so by writing

Two weeks ago, with a decision in Obergefell v. Hodges on the way, Sen. Mike Lee of Utah introduced the First Amendment Defense Act, which ensures that religious institutions won’t lose their tax exemptions if they don’t support same-sex marriage. Liberals tend to think Sen. Lee’s fears are unwarranted, and they can even point to Justice Anthony Kennedy’s opinion in Friday’s case, which promises “that religious organizations and persons [will be] given proper protection.”  But I don’t think Sen. Lee is crazy. In the 1983 Bob Jones University case, the court ruled that a school could lose tax-exempt status if its policies violated “fundamental national public policy.” So far, the Bob Jones reasoning hasn’t been extended to other kinds of discrimination, but someday it could be. I’m a gay-rights supporter who was elated by Friday’s Supreme Court decision — but I honor Sen. Lee’s fears.
The old “somebody-might-think-about-tossing-that-match-through-that-window-but-I sure-won’t” ploy. 

For the uninitiated, Bob Jones University is a private non-denominational university. Originally founded in 1927 as a part of the modernist-fundamentalist debate that swept through the northern Presbyterian church in the 1920s, it is now located in Greenville, SC.  (That debate in which the “modernists” rejected the divinity of Christ and His virgin birth, the authenticity of His miracles, the atoning nature of the Cross, the inerrancy of Scripture, and the bodily resurrection of Christ, divided, among others, the Presbyterian Church in the United States of America, a predecessor of the current PC(USA).  In fact, that continuing debate has led to the recent continuing massive loss of members by the PC(USA).)

The University, which was at one time the largest liberal arts university in Tennessee before it moved to South Carolina, held to a particularly narrow Biblical interpretation regarding interracial dating, and completely excluded black applicants until 1971.  Beginning in 1971, the University admitted black students, but only if they were married. After 1975, the University began to admit unmarried black applicants, but continued to deny admission to applicants who were married to a spouse of another race.  As far as I can recall, no one ever asserted that this Biblical interpretation was a sham, i.e., that it was not honestly held. 

Nonetheless, the IRS revoked the University’s tax exempt status because of those beliefs and policies.  In Bob Jones University v. US, 461 U.S. 574 (1983), the Supreme Court held that the first amendment's free exercise provisions did not prohibit the  IRS from revoking the tax-exempt status of a religious university for no other reason than that those practices are contrary to a compelling government interest, such as eradicating racial discrimination.

Same-sex marriage is now a fundamental right under the Constitution.  What Mr. Oppenheimer is not (wink, wink) suggesting is that someone use the Bob Jones precedent to revoke the tax exempt status of any church or congregation that preaches against same-sex marriage or refuses to accept and ratify such “marriages” as religiously conforming.

In McCulloch v. Maryland, 17 U.S. 159, 4 Wheat. 159 (1819), the Court held that a State could not tax a federal entity, in that case the Bank of the United States.  Writing for the Court, Chief Justice John Marshall said that "[T]he power to tax involves the power to destroy…"  

And that, dear friends, is what the hard-liners in the so-called “gay rights” movement want.  They do not seek the long-cherished American “right to be left alone.”  They got that from Obergefell.  They want to force any Christian who believes that homosexual conduct is a sin tosay “Oh, I was wrong.  The Bible is wrong.  You are right.”  

If they don’t get that, then along with Mr. Oppenheimer, “ a gay-rights supporter who was elated by Friday’s Supreme Court decision,” they will continue to look for any way to destroy Bible-believing Christian churches.  And I do believe that the attack will be aimed solely at Christian churches.  Bible-believing churches think homosexual conduct is a sin.  They, and I include myself here, also believe that there are plenty of additional sins to go around and we are all sinners and will be until Judgement Day.  But Islam thinks homosexual conduct is a capital offense.  However, I’ve heard no one suggest that an effort be made to silence the teachers in that faith.  

And, I have to say, they have a logical argument.  If same-sex marriage is a fundamental federal right, then to combat the evil of conscience, the federal government ought to be allowed to use its taxing power to destroy any church that does not accept same-sex marriage as legitimate.  Remember, Bob Jones University was punished because it carried its beliefs into action.  Why not, then, destroy a congregation when its session and pastor refuse to permit a same-sex wedding in its sanctuary?

And, for liberals, there is another benefit to this ploy.  Money!!!!  That is what Mr. Oppenheimer really wants.  Like Henry VIII, he wants the “fortunes” that are currently tax-free in the accounts of churches and other religious and non-profit entities.  Everybody wins—except American citizens who can no longer rely on the protections afforded by the Constitution!