Once again, five Supreme Court justices have invented a right that is nowhere mentioned or implied in the U.S. Constitution. Instead of allowing the states the right to make decisions about marriage, these judges have elected to impose their will on the nation.
Moreover, their reasoning is sociologically illiterate. The idea that marriage is a matter of individual autonomy—and not a social institution—is the most profound flaw in their ruling. In their mind, society is composed of monads.
For people of faith, this decision is ominous. On p. 27, the majority declares that religious Americans “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” It is nice to know they respect our First Amendment right to freedom of speech.
“The First Amendment,” the five justices say, “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….” That’s the best they can do? Justice Clarence Thomas, in his dissent, rightly criticizes this genuflection to religious rights. “Religious liberty,” he says, “is about freedom of action in matters of religion generally”—it is not confined to advocacy.
In order to stop the IRS from revoking the tax-exempt status of religious institutions that refuse to marry two men or two women, Congress needs to pass the First Amendment Defense Act that was introduced last week. Nothing less is acceptable.