Supreme Court can’t tell what “legislature” means

Lost in the tumultuous week of Supreme Court rulings over Obamacare and gay marriage was another odd ruling.  To combat gerrymandering, the people of Arizona passed a referendum that would take away the state legislature’s power to draw electoral boundaries and give it instead to a non-partisan commission.  That sounds like a good outcome, since gerrymandering–drawing districts to protect the incumbents–is a plague on democracy.  The problem is, the Constitution explicitly, in so many words, gives that power to the “legislature.”

But not wanting the Constitution to get in the way of their favored policies, the court ruled in favor of the commission.  George Will tells the tale and recounts Chief Justice Robert’s vigorous–if surprising, given his Obamacare ruling–dissent on the necessity of attending to the language of the Constitution. [Read more...]

The right to dignity

To find a right to abortion in the Constitution, the Supreme Court justices in Roe v. Wade construed from the text a “right to privacy.”  To find a right to gay marriage in the Constitution, Justice Kennedy, with the concurrence of the majority, has construed a “right to dignity.”

Law professor Jonathan Turley, who supports gay marriage, said that the judges could very well have ruled to that effect by invoking the equal protection clause of the 14th Amendment, as lower courts have done.  But instead it invokes the section on “due process” and asserts this new right to “dignity.”  Prof. Turley, who shows how Justice Kennedy has been building up to this notion in a number of his other rulings, is worried about this new legal doctrine, saying that it opens up all kinds of legal and civil liberty cans of worms. [Read more...]

The Declaration of Independence and natural law

Legal scholar Randy Barnett offer a fascinating section by section reading of the Declaration of Independence, which he says succinctly states the political theory of the American founding.  He summarizes it this way:

  • The rights of individuals do not originate with any government, but pre-exist its formation.
  • The protection of these rights is both the purpose and first duty of government.
  • Even after government is formed, these rights provide a standard by which its performance is measured and, in extreme cases, its systemic failure to protect rights—or its systematic violation of rights—can justify its alteration or abolition.
  • At least some of these rights are so fundamental that they are “inalienable,” meaning they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.

But I’d like to draw your attention to his exposition of the first paragraph and his explanation of “The Laws of Nature and of Nature’s God.”  In quoting a clergyman of the time, he gives a helpful explanation of what we mean by that much-misunderstood concept of “natural law,” as well as showing how that was a fundamental assumption of the American founders. [Read more...]

Government approved churches?

Conservative churches are troubled with the gay marriage decision and feel threatened lest the government punish them for teaching that homosexuality is sinful.  But liberal churches are celebrating the ruling and will have no problem with discrimination statutes.  If conservative congregations lose their tax exempt status, liberal congregations wouldn’t.  Indeed, some denominations would presumably include conservative congregations that would and liberal congregations that would not.

So you have GOT to read Anthony Sacramone’s post Do You Worship in a State-Approved Church?  Read especially “the talk” that he says conservative pastors must give to their congregations.   I’ll excerpt the first part after the jump, but you really need to read the whole thing.

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“Conscientious objection against the state”?

LCMS president Matthew Harrison has issued a response to the Supreme Court marriage ruling.  It’s a strong statement, but what’s most striking and surprising, coming from a Lutheran with a Two Kingdoms theology, is his quotation of the anti-Nazi theologian Hermann Sasse on signs that the state has lost its Romans 13 legitimacy.  President Harrison concludes that “Christians will now begin to learn what it means to be in a state of solemn conscientious objection against the state.”

Is he saying that the United States government is no longer legitimate?  Wouldn’t that mean we don’t have to follow any of the laws it passes?  The Lutheran theology of culture, the doctrine of the Two Kingdoms, has sometimes been interpreted to mean that God rules through the state, so that we need to submit to the secular authorities no matter what.  But I think the Two Kingdoms offers a mechanism for critiquing the state.  If God is the King, hidden in secular institutions and vocations but working through them with His moral law, then states and rulers who repudiate that moral law are in rebellion against His kingship.  Right?  But presumably He would still be working through them, despite themselves, in other ways, so that Christians would still be obliged to submit to their authority where it doesn’t conflict with God’s Word.

How else might a Two Kingdoms approach to the gay marriage decision help us navigate these controversies?  Read President Harrison’s statement, after the jump.  What do you think about it?  What else might be said?

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How should the church respond?

Russell Moore on the gay marriage ruling and on how churches should respond:

As I write this, the Supreme Court has handed down what will be the “Roe v. Wade” of marriage, redefining marriage in all 50 states. This is a sober moment, and I am a conscientious dissenter from this ruling. The Court now has disregarded thousands of years of definition of the most foundational unit of society, and the cultural changes here will be broad and deep. So how should the church respond? [Read more...]


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