Sunday afternoon, 6/28/15

  1. Kennedy, J: SSM makes everything doubleplusgood
  2. Who can serve these refugees?
  3. The death of Kumbaya Evangelicalism?
  4. “This is who I am!”
  5. Our “ten righteous”
  6. RFRA and FADA
  7. Dear Cracker:


I have finished reading the Supreme Court’s same-sex marriage decision. If you want to know what’s wrong with it, you’ll do better reading it and the dissents – especially Justice Thomas’s dissent – than reading this 30,000-foot overview. I just want to jot down my impressions and see how they hold up over time; my memory might valorize my contemporaneous insight too readily otherwise.

Justice Kennedy’s majority opinion is one of the least rigorous SCOTUS opinions I’ve ever read, but he has become famous for that in anything touching sexuality. He tacitly espouses philosophical nominalism in his very first sentence, for instance (not all will disagree with nominalism, but I do), but that’s pretty much been the law of the land, God help us, since he wrote his sweet mystery of life passage 23 years ago.

But let’s pick some of the fun stuff. I particularly enjoyed the claim that single people are hopeless losers:

Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

(Emphasis added) If he’s trying to persuade me of some “conservative” case for SSM, he’s down 0-2 (nominalism and contempt for celibacy) before the third pitch.

He can’t even avoid tripping over his own myths.

Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation … Two years ago, Obergefell and Arthur decided to commit to one another ….

(Emphasis added) So they were stable and committed without civil marriage but needed marriage for stability and commitment. Mirabile dictu! Is there anything same-sex marriage can’t do!? It makes lasting committed relationships doubleplusgood!

After describing some pretty superficial changes in marriage over recent centuries (e.g., abandonment of arranged marriage and coverture), he launches his dishonest nonsequitur:

These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.

No, I doubt that anyone thought parental arrangement of marriage or coverture was “essential,” but more importantly, Kennedy is writing to inflict a patently deep and thorough change, all the while pretending it’s superficial and harmless. So superficial changes are profound while deliberately profound changes are really superficial. Is it any wonder this poor intellectualoid American Jurisprudence Award recipient in Introductory Con Law is shaking his head in bafflement?

But the richest of all is this:

Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues.

This exposes Kennedy as a hypocrite par excellence, as he has routinely labeled as bigots and inflicters of calculated, malicious harm those who dare resist the wish list of gays and lesbians. And it’s written of (among others) the arrogant reductionist and bully extraordinaire, Chicago’s own Judge Richard Posner. (Hold the applause.)

Justice Thomas’ dissent is getting the most scholarly attention, and I can see why. If his view of the original meaning of “liberty” in the due process clauses is correct, we have to ‘fess up that we’ve been making up bogus substantive meanings of liberty – or else we have a lot of incorrect liberty/substantive due process decisions in late modernity to overrule as the opportunity presents itself.

Roberts’s dissent seems intellectually weaker than Thomas’s (but better than Kennedy’s majority). Thomas and Scalia joined it anyway.

Scalia’s dissent can be, and is, entertaining and hyperbolic because he already has joined more high-minded dissents and now is waving a bloody flag in defense of self-governance. Good for him. I don’t need string citations for the proposition that republican self-governance is a central constitutional principle, and I won’t despise stridency in protesting judicial infringement.

Overall impression? As with substantive due process decisions of the past, the gestalt matters more than the precise legal reasoning, and to grasp the gestalt of Justice Kennedy, you’d have to be a flake like him.

And as passionate as I am about religious freedom, the majority and the dissents, insofar as they treated of it at all, treated it as an aside (majority) or as make-weight (dissents). There’s nothing in the majority to increase the religious freedom alert level from code red to code doubleplusred, but as the dissents say, there’s no real comfort in the majority opinion either.


There are two sorts of churches that will not be able to reach the sexual revolution’s refugees. A church that has given up on the truth of the Scriptures, including on marriage and sexuality, and has nothing to say to a fallen world. And a church that screams with outrage at those who disagree will have nothing to say to those who are looking for a new birth.

(Russell Moore)


I have too much respect for Terry Mattingly to dismiss it out of hand when he suggests that the age of non-doctrinal, nondenominational, Kumbaya Evangelicalism likely is coming to an end for legal reasons. Indeed, it’s sort of consistent with some things I said in my last blog.

His theory is put in terms of the federal government, on such things as HHS mandates, tending to look at the denominational label on the Church sign as a sort of litmus test of how it should be treated. (Starting at about 14:45 in the podcast.) I’m frankly not sure what facts he’s distilling into that summary, but apparently he thinks that “non-denominational” or no sign at all makes a Church more vulnerable. Maybe a distinct denominational or historic affiliation mediates between state and congregation just as “church” in the broadest sense mediates between state and individual.

Yet when one of its former editors, David Neff, came out of the closet as a gay marriage supporter, Christianity Today responded quickly with a claim that “2 Billion Christians Believe in Traditional Marriage,” thus explicitly aligning its denominationally neutral publication with the Great Tradition that includes doctrinally clear Roman Catholicism and Orthodoxy. (Starting at about 16:45 in the podcast.)

But “united – though we don’t have any particular doctrine” (the Evangelical ethos) is going to be an embarrassment when the rejoinder is “but you have a binding doctrine that forbids gay marriage?! Really?!


Our general societal dogma that you should act on whatever your deepest desires are will trump any arguments made from sociology, statistics, etc. “This is who I am!” is now our culture’s basic creed. (As if anyone knows who he really is! Please. All our entertainment and literature is centered around people having no clue about this.)

(Fr. Andrew Stephen Damick, emphasis added)


Fr. Patrick Henry Reardon, in an uncharacteristically brief and heartfelt homily:

The merciful God poured his grace into our hearts this week as we sat, and watched, and listened, spellbound, to the awesome expressions of love and forgiveness in the courtroom in the beautiful city of Charleston … I have wondered for the last several years why God has not destroyed the United States, and I got some inkling of why this last week. Because there are people like that ….

(Hyperlink added)


If RFRA ignites the Outrage Machine, I don’t know that FADA has a snowball’s chance of passage:

This bill … is good policy in part because it is so simple. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. That’s it in a nutshell.

(Ryan Anderson) My first impression is that it’s worth the effort and can serve, if nothing else, to flush out the Congressmen/women and Senators who truly do desire to see religious freedom crushed. You can’t take at face value protestations of love for religious freedom. Let’s put them to the test.


Dear Cracker: I can understand your frustration at the nation you grew up in dissolving before your eyes, but your arson dissolves the world I grew up in, and blacks were not the perpetrators of this last week’s judicial intrusions on self-governance.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.