Christianity in Today's America
5/19/15 at 12:51 PM 10 Comments

An Open Letter to the Supreme Court of the United States on Gay Marriage (And Torture)

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It is said that a confession obtained through torture is null and void, and for good reason: people will confess to anything if enough pain is inflicted. Then, there is the ethics of the matter. Torture, it seems to me, undermines the dignity of both the person being tortured, and the one doing the torturing. A price is also paid by the society that sanctions it. There is always self-interest to take into account: the tortured may turn the tables... and he will not show mercy.

As with a man, so with a manuscript. To wit, the Constitution of these United States.

While there are occasions where there is genuine ambiguity in the language of the Constitution, and thus uncertainty on how it is to be applied, in other cases the language is crystal clear and the application straight-forward and obvious. To go against that clear language and obvious application, but still insist that one is acting according Constitutionally, requires torturing the text into saying something it plainly does not say. But torture comes with a price. Always.

The issue of ‘gay marriage’ currently being decided by your august body is one of those occasions where the language is clear and the application obvious. Not that the Constitution contains clear statements on the matter... exactly the opposite. The Constitution is utterly silent on the issue, but not silent about how to handle the things it is silent about. Witness the 10th Amendment, in its glorious absence of ambiguity:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The powers ‘reserved to the States respectively, or to the people’ have dwindled in number. One strains to find instances where your Court has expanded the powers of the States or the people. Over the decades, the Court has found countless ways to minimize those powers and then justify its decisions as Constitutional. These justifications, we will allow, flow from genuine and sincere motives. But to say that the plain language of the Constitution actually supports them? No. It is only by torturing the text that one can obtain the desired confession.

The issue of ‘gay marriage’ is, in this sense, only the latest example, but oh, what an example it is. The Roe vs. Wade decision was (and remains) hotly contested, but none of the states have tried to do with abortion what they’ve actually done on the issue of marriage. There have been no amendments to state constitutions forbidding abortion, and none have dared to pass laws that blatantly defy the Court’s verdict in Roe. Yet, here is a list of state constitutional amendments in favor of ‘traditional marriage’:

Alaska, Nevada, Nebraska, Mississippi, Missouri, Montana, Georgia, Kentucky, Louisiana, North Dakota, Ohio, Oregon, Utah, Oklahoma, Michigan, Arkansas, Kansas, Texas, Colorado, Tennessee, Alabama, South Carolina, South Dakota, Wisconsin, Virginia, Idaho, Arizona, Florida, California, and North Carolina.

30 states!

The list above is interesting in its diversity. Northern states acted as quickly as states in the deep south. The east coast is represented along with the west coast. Even in a state known for its support for gays, California, an amendment was passed in favor of ‘traditional marriage.’

I do not have to inform the justices about the supreme difficulties involved in passing an amendment to a state constitution. Amendments are deliberately difficult to obtain, precisely to ensure that they are done deliberately. This deliberate and decisive action by millions and millions of people is what you are poised to overturn, representing the greatest voter disenfranchisement, ever. Millions of Americans have gone above and beyond as far as ‘due process’ goes, and you are about to run roughshod over all of them.

And on what basis? There cannot be a Constitutional one, because the Constitution is silent on the matter, which means the 10th amendment applies. Hence, any justification you offer, if it be presented as ‘Constitutional,’ will have to come by torturing the text to make it say what it patently does not say.

Your decision ought to be simple and concise:

The Constitution does not speak to the issue of marriage, thus, by application of the 10th amendment, the States and the people are the ones to decide such matters.

Case closed.

Hoping for such a ruling is, of course, a pipe dream. No doubt, various aspects of the marriage issue will be discussed and weighed, despite the fact that the States and the people have already spoken decisively. Allow me, then, to issue a warning: a ‘win’ for ‘gay marriage’ brought about in this manner would be Pyrrhic. The very social contract this nation is built upon, where we govern ourselves according to the rule of law, would be given a body-blow.

A decision for ‘gay marriage’ dramatically expands a dangerous trend whereby soon it will be the case that the only issues people are permitted to decide for themselves are which days the garbage will be collected and the amount to charge for a dog license!

It is hard to imagine that people will tolerate such impositions for very long. Eventually a line will be crossed where it is apparent to all that the Constitution simply does not say what you say it says. The implications, likewise, will be clear to all. This may very well be that line. But even if it isn’t, the precedent is set, is it not? Tables do turn. If the Constitution can be tortured into saying one thing today, it can be made to say another thing tomorrow.

It has been noted that public opinion has turned sharply in favor of gay marriage in recent years. Very well! Then it shouldn’t be that hard for the citizens in these states to repeal their amendments--if this change of opinion is real and genuine. That is the proper way to do it.

Burning down the Republic to get what you want? Beating a ‘confession’ out of the Constitution? That can’t end well.

If the cause is noble enough, there are noble methods and means for attaining it. I urge our honorable Supreme Court justices, even (and especially) the ones sympathetic to gay marriage, to fulfill its Constitutional obligation and interpret the Constitution as written. A tortured interpretation would exact, ultimately and inevitably, a high price indeed: freedom.

Anthony Horvath is the Executive Director of Athanatos Christian Ministries.

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