Is same-sex marriage about to get the Dobbs treatment?



Could Obergefell v. Hodges, the landmark Supreme Court case that legalized same-sex marriage, face Roe v. Wade's fate?

Last month, Idaho lawmakers overwhelmingly passed House Joint Memorial 1, which declares that the Idaho legislature rejects the Supreme Court's ruling in Obergefell and formally asks the Supreme Court to "restore the natural definition of marriage, a union of one man and one woman."

The memorial accuses the Supreme Court of adopting a definition of "liberty" that the framers of the Constitution "would not have recognized." Whereas the framers declared in the Declaration of Independence that "all men are created equal" and "endowed by their Creator with certain unalienable Rights," the memorial accuses the Supreme Court of declaring in Obergefell that "citizens must seek dignity from the state." The memorial, moreover, accuses the Supreme Court of treating the Due Process Clause of the 14th Amendment "as a font of substantive rights," therefore "exalt[ing] judges at the expense of the people from whom they derive their authority."

Ultimately, the memorial demands the issue of marriage be returned to the "several states and the people."

What is most interesting about the memorial is that it was crafted to mirror the language of Supreme Court Justice Clarence Thomas.

The question seems not to be if the Supreme Court will hear a direct challenge to Obergefell — but when.

Case in point: In his forceful Obergefell dissent, Thomas condemned the "dangerous fiction of treating the Due Process Clause as a font of substantive rights" while warning that when strayed from the Constitution, "substantive due process exalts judges at the expense of the People from whom they derive their authority."

Thomas resurrected his argument seven years later when he wrote a concurring opinion in Dobbs v. Jackson Women's Health Organization, the landmark Supreme Court case that overturned Roe.

In light of the Dobbs ruling that abortion is not a form of "liberty" protected by substantive due process rights because it is neither "deeply rooted in this Nation’s history and tradition" nor "implicit in the concept of ordered liberty," Thomas argued that "all of this Court's substantive due process precedents" must be reconsidered, specifically highlighting Griswold v. Connecticut, Lawrence v. Texas, and Obergefell.

"Substantive due process ... has harmed our country in many ways," Thomas argued. "Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity."

That opportunity may come sooner than later.

While the Idaho memorial does not carry the force and effect of law, according to the Idaho Capitol Sun, it is a shot across the bow that signals a growing willingness to challenge Obergefell and the jurisprudence on which it stands.

The Supreme Court, however, will not revisit the legal question of same-sex marriage until it receives a direct challenge to the Obergefell precedent.

But it is not hard to imagine such a challenge emerging in the near future.

While the Obergefell decision legalized same-sex marriage in all 50 states, more than 30 states still have state constitutional amendments or statutes banning same-sex marriage. Democrats, concerned about a potential Obergefell reversal, warn that more than 200 million Americans live in states where same-sex marriage would become illegal if Obergefell falls.

Not only is there a legitimate argument that marriage is an issue of state's rights, but Thomas and Justice Samuel Alito have written on the consequences of the Obergefell decision for Christians.

After the Supreme Court chose not to hear a case involving Kim Davis — the Kentucky clerk who refused to issue same-sex marriage licenses because of her Christian faith — Thomas and Alito described Davis as "one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision" and warned that "she will not be the last."

"Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other anti-discrimination laws," the duo wrote in 2020.

"It would be one thing if recognition for same-sex marriage had been debated and adopted through the democratic process, with the people deciding not to provide statutory protections for religious liberty under state law," they explained. "But it is quite another when the Court forces that choice upon society through its creation of atextual constitutional rights and its ungenerous interpretation of the Free Exercise Clause, leaving those with religious objections in the lurch."

In their eyes, the Supreme Court chose to "privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment" in Obergefell through "undemocratic" means.

The only remedy, according to Thomas and Alito, is future intervention from the Supreme Court.

Still, there are significant differences between abortion and same-sex marriage that would make overturning Obergefell insurmountable.

For example, support for same-sex marriage remains statistically high: About 70% of Americans support it, according to Gallup. Abortion never enjoyed such widespread support. Even more important is that reversing Obergefell would raise the complex legal question of what to do with existing same-sex marriages. Would they be invalidated? Grandfathered in?

Only the Supreme Court's nine justices can answer that question. But if Dobbs proved anything, it's that the Supreme Court is willing to overturn long-standing precedents to correct legal transgressions.

With growing cultural and political backlash against woke ideology, the question seems not to be if the Supreme Court will hear a direct challenge to Obergefell — but when.

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Justice Alito highlights continued 'danger' of Supreme Court's same-sex 'marriage' ruling for religious Americans



For nearly a decade, Supreme Court Justice Samuel Alito has seen his concerns over the possible fallout of the court's ruling in Obergefell v. Hodges manifest in various ways, both in the public and private spheres.

In a statement Tuesday, the conservative justice renewed his criticism, stressing that the controversial 2015 decision continues to threaten and adversely impact religious Americans — particularly those who remain steadfast in their conviction that marriage is reserved for one man and one woman.

What's the background?

Michigan, Kentucky, Ohio, and Tennessee outlasted much of the nation in maintaining that marriage was a union between one man and one woman. Plaintiffs in the four states filed lawsuits, which ultimately culminated in Obergefell v. Hodges, heard by the Supreme Court in 2015.

Liberal justices determined in their 5-4 ruling that the right to marry is guaranteed to non-straight couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Alito joined Justices Antonin Scalia and Clarence Thomas in stressing that there was no textual basis in the Constitution or corresponding history for precluding states from developing their own definitions of marriage. The conservative justices also indicated that the majority changed the focus from what the four states were constitutionally required to do to what they supposedly should do.

Extra to indicating that the court's liberal majority adopted a "distinctively postmodern" understanding of liberty and accepted an eudaemonistic concept of marriage — one divorced from any traditional understanding — Alito stressed that the decision "usurps the constitutional right of the people to decide whether to keep or alter their traditional understanding of marriage."

"It will be used to vilify Americans who are unwilling to assent to the new orthodoxy," wrote Alito.

"In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women," continued the conservative justice. "The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent."

Alito underscored that "those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools."

Foreseen consequences

The Supreme Court declined Tuesday to hear the case Missouri Department of Corrections v. Jean Finney, concerning whether the Fourteenth Amendment protects jurors from being dismissed on the basis of stereotypes about religious views and whether, again in the context of jury selection, the amendment protects "both religious status and religious belief, religious status only, or neither," reported SCOTUSblog.

Finney, a lesbian employee of the Missouri Department of Corrections, alleged that after starting a non-straight relationship with a co-worker's former spouse, the co-worker made life and work difficult for her. She sued the MDOC, alleging it was responsible for her co-worker's actions.

The New York Times noted that during jury selection, Finney's lawyer grilled potential jurors about whether they attended a "conservative Christian church," particularly one that was not all in on the LGBT agenda. The lawyer proceeded to strike off two jurors on the basis of their responses, prompting concerns about religious discrimination.

Ultimately, the jury — purged of religious Americans with orthodox views — sided with Finney. The MDOC appealed, and the case then got kicked up to the Supreme Court's attention at the request of the Office of the Missouri Attorney General.

Justice Alito's renewed concern

Justice Alito wrote Tuesday that while he reluctantly agreed the court "should not grant certiorari in this case, which is complicated by a state-law procedural issue[,] ... I am concerned that the lower court's reasoning may spread and may be a foretaste of things to come."

The conservative justice noted that "the court below reasoned that a person who still holds traditional religious views on questions of sexual morality is presumptively unfit to serve on a jury in a case involving a party who is a lesbian."

"That holding exemplifies the danger that I anticipated in Obergefell v. Hodges," continued Alito, "namely, that Americans who do not hide their adherence to traditional religious beliefs about homosexual conduct will be 'labeled as bigots and treated as such' by the government."

Alito cast doubt on whether the Missouri Court of Appeals, which affirmed the religious jurors' dismissals, respected their "fundamental rights," including the right to the free exercise of religion and the right to the equal protection of laws.

"When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights," wrote Alito, adding that state actions that single out the religious for disfavored treatment must survive the most rigorous scrutiny under the Free Exercise Clause.

Alito suggested that unless the jurors were somehow incapable of deciding the case "based on the law and the evidence," which the lower courts and Finney's lawyer apparently failed to demonstrate, he would "see no basis for dismissing a juror for cause base on religious beliefs."

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Media Squawk About Mike Johnson’s ‘Sexual Anarchy’ Predictions As They All Come True

[rebelmouse-proxy-image https://thefederalist.com/wp-content/uploads/2023/10/Screenshot-2023-10-27-at-12.56.18 PM-1200x675.png crop_info="%7B%22image%22%3A%20%22https%3A//thefederalist.com/wp-content/uploads/2023/10/Screenshot-2023-10-27-at-12.56.18%5Cu202fPM-1200x675.png%22%7D" expand=1]The media spilled thousands of words detailing the new House speaker's LGBT track record — but they won't say how well his views have held up.

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Horowitz: Elevating homosexuality to a national religion



Allah forbid that Republicans would ever stand for biblical values. But are they still so dense as not to realize where the effort to redefine marriage – only for one type of sexual behavior – came from and where it is headed? Indeed, this was never about “marriage equality,” but about codifying homosexuality as a national religion in order to uproot all social norms and family structure and trample all other rights at its expense.

On Tuesday, the House passed a bill that not only repeals the federal Defense of Marriage Act, but also bans states from defining marriage as it always has been since the dawn of civilization. Along with every Democrat, 47 Republicans supported the bill. But more telling, GOP leaders refused to whip against it, and even most of those who spoke out against the bill referred to it more as a distraction or claimed the Democrat assertion that the Supreme Court could overturn Obergefell is unfounded. In fact, with ubiquitous redefining of gender and endless child grooming, now is precisely the time they should have defended something “deeply rooted in history and tradition” and the need to reverse Obergefell.

Those “moderate” Republicans who are fine with banning the basic definition of marriage and who thought redefining marriage through the courts would never lead to transgender grooming are deluding themselves. While intellectually, one could obviously support one without the other, practically and politically it was always headed in this direction, for a very simple reason. Regardless of one's values, we cannot forget that gay marriage was never about rights and equality. Same-sex lovers, like anyone else who engages in a form of intimate relations deemed sinful (or otherwise) by the Bible, were fully able, before Obergefell, to indulge their desires unimpeded by government. So what problem were they trying to rectify, if not societal transformation and conformity to their broader cause of decivilization and cultural Marxism?

In fact, for decades before Obergefell, homosexuality was promoted by every cultural elite institution. In 1996, Justice Scalia, in his famous Romer v. Evans dissent, noted how in vogue homosexuality was to the legal profession:

How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation’s law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant’s homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: “assurance of the employer’s willingness” to hire homosexuals.

Fast-forward to 2015 and the Obergefell decision, and the pendulum had already swung so much in favor of homosexuality over religious liberty that it was religious business owners and institutions who were being persecuted for wanting to abide by their religion – deeply rooted in our history and tradition – with their own property. There was no need for special protections for same-sex relationships, which is exactly what they were asking for by redefining a basic institution in order to accommodate a behavior that was in vogue.

Just how insidious was the Obergefell decision? Just two years before, in Windsor v. U.S., Justice Kennedy made it clear that the federal government has no role in marriage and that it is left to the states to regulate. “By history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States,” wrote the justice in asserting that the federal government could not define the parameters of marriage, even exclusively for federal benefits. Then two years later, he ruled that even states cannot define marriage as a marriage for themselves. Now Congress wants to codify that ban on states in statute, something DOMA never did to blue states even in its full glory. Indeed, a number of these states recognized gay marriage under its operation. But it was a slow yet unrelenting subterfuge to gradually turn the homosexual marriage agenda from a lamb to a lion, from a shield to a sword.

The question they could never answer, though, is this: If this was all about equality and protection of rights, how is it justified to redefine marriage for two same-sex individuals but not for other relationships? If marriage is no longer limited to one man and one woman, why should it not include polyamory, polygamy, and incestuous relationships? Yet bizarrely, the House bill notes that marriage licenses must be issued to any “2” individuals.

Why two? What happened to the right to love for three people?

In fact, there are three reasons why the aforementioned relationships should have a stronger case in their quest for marriage recognition than same-sex lovers. First, from a natural-law perspective, polygamist, polyamorist, and incestuous marriages can result in procreation, which is what has always distinguished the institution of marriage from other relationships, including loving relationships. And in the case of polygamy, it is certainly more rooted in history than homosexual marriages. While marriage encompasses a lot more than simply having children, procreation has been the hallmark of the institution since its inception, because civilization could not perpetuate itself without it. That is the defining characteristic differentiating a marriage from any other friendship or relationship.

Moreover, so much of Kennedy’s Obergefell opinion was rooted in his fabrication of new constitutional rights – namely, the right to “dignity,” “nobility,” protection against stigmas, and the right to “define and express their identity.” If Kennedy and his disciples, in both political parties today, believe it is their responsibility and prerogative to bestow those new post-constitutional rights upon perhaps the most powerful and trendy class of people in the country, how much more so for a group that is still scorned, stigmatized, and denied their dignity to express their identity? Homosexual marriage is in vogue and glorified by Hollywood, whereas these other relationships are still heavily stigmatized. Don’t they need an even greater degree of protection? Where is their “right to love” if love and equality now encompass redefining fixed institutions, their legal parameters, their technical definitions, and the unambiguous constitutional authority behind their oversight?

The only way to answer these questions is to suggest that homosexuality is so cool that it was able to trump all legal definitions, social norms, and even religious liberty rights of business owners simply because it’s popular. As Chief Justice Roberts noted in his dissent, Kennedy’s insertion of the adjective “two” into his edict redefining marriage as between any two individuals of the same or opposite sex makes it clear that personal social preference now trumps legal consistency.

“Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” wrote the chief justice in Obergefell v. Hodges. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

At the time, one could forgive Republicans for thinking, “Yes, just give them their papers and be done with it.” But again, this was never about “live and let live.” Never before were basic legal definitions, natural law, and – in the case of Christian bakers – long-standing religious liberty rights trampled in order to accommodate a sexual trend, whether cool or not. In fact, the redefinition of marriage – but only in a very specific culture – was always about grooming a population into submitting to every aspect of that culture, be it adoption into family units without a mother and father, transgenderism, drag queen story hour, and yes, the coming pedophilia trend.

Which raises the question: At what point does homosexuality qualify as a violation of the Establishment Clause of the First Amendment on account of establishing a national religion?

During the House floor debate over the First Amendment on August 20, 1789, James Madison explained the purpose of the Establishment Clause as follows: “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience” (emphasis added).

If Madison’s primary concern was to ensure that Congress does not compel individuals by the force of law to service a particular religion (as opposed to the innocuous display of religious symbols or public prayer), what would he say about an unelected branch of government compelling individuals to serve paganism in any manner contrary to their conscience? To that end, why won’t Republicans at least demand full religious liberty protections for religious groups and businesses before mandating gay marriage on the states?

Just how sacred is homosexuality in this country? Consider the fact that we were told that out of concern for infectious diseases, the laws of quarantine and social distancing trump all human rights, including the right to worship, open a business, or breathe feely without a mask – regardless of whether you have risk factors, are already immune, or have prima facie symptoms. This was for a respiratory virus that was quite clearly not quarantinable from day one.

Fast-forward to monkeypox, which is the ultimate quarantinable virus. It only spreads by close contact and is almost exclusively associated with homosexual behavior at public bars and other similar venues. 98% of the males outside Africa who have contracted the virus have had intercourse with other men. So much so that the D.C. government is handing out vaccines exclusively to homosexuals.

Now, any epidemiologist would agree that, unlike with COVID, if you simply close the gay bars and houses of orgy for 15 days to flatten the curve, the virus would essentially die out. No need to shut them down for two years, just for two weeks. Yet not only is this untouchable, but the CDC is putting out a guide as to how to engage in gay sex. The WHO would rather declare a global emergency than simply tell people to lay low on the sodomy with random people for a few weeks.

Throughout last week, journalists were noting with shock and surprise how prominent liberal politicians voted for the Defense of Marriage Act in 1996, including Joe Biden himself. As if to say, “Wow, look how radical they were back then.” But in fact it demonstrates how radical all of us have become and how quickly the Overton window has shifted. One need not be a frothing-at-the-mouth anti-homosexual to appreciate that you simply don’t change the definition of an obvious institution the same way you wouldn’t do so to accommodate other intimate relationships that might truly involve sincerely held love.

The complete abandonment of basic common sense by both parties has led to the elevation of homosexuality itself as a supremely unequal “right” that is preeminent and trumps all other rights, including personal property and conscience rights. Theoretically, the redefinition of marriage to accommodate homosexuality didn’t need to lead to the trampling of religious liberty rights. But practically, it was inevitable, because it was never about a piece of paper. It was about a piece of your soul. And they will continue to fill up the alphabet with their licentious acronyms until they have it.

Defenders Of Traditional Marriage Should Follow The Pro-Life Playbook

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