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I expect to see much more of this kind of thing as the proponents of the homosexual agenda continue their campaign against religious believers. Obergefell is going to lead to serious fights over the fundamental right to the free exercise of religion, as the Chief Justice discussed in his dissenting opinion. A due process "right" was cooked up by Anthony Kennedy and four others who share his disdain for the Constitution, and forced upon 70% of the states by a strident minority which so far had been widely tolerated. That new, ginned-up "right" has been set on a collision course with a real, solid gold First Amendment right that is as fundamental as any we enjoy, and one the large majority of Americans who are neither atheists nor homosexuals do not take lightly.
The last time the Supreme Court sharply narrowed its interpretation of the right to free exercise, 25 years ago in Employment Division v. Smith, it provoked so much concern that the decision led directly to the Religious Freedom Restoration Act of 1993. The RFRA restores the very demanding standard for government actions that substantially affect the right to free exercise the Court had applied in two cases from 1963 and 1972, and it passed both Houses of Congress by very large majorities. The RFRA was the basis for the decision last year in the Hobby Lobby case, in which the Court held an Obamacare rule on contraceptives invalid.
The strong support for the RFRA and the Court's demonstrated willingness to apply its demanding standard tells me this is still quite a religious nation, and that believers are willing to fight for their beliefs. I will not be surprised if there is widespread defiance of the arbitrary, flagrantly unconstitutional dictate in Obergefell. The Supreme Court can crow all it wants about the supremacy of its decisions over the states, as it did in Cooper v. Aaron in 1958, for example--but in the end it has no power to force any state to abide by any of those decisions. The People are the final check on lawless rule.
As Justice Scalia wrote at the end of his dissenting opinion in Obergefell,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has“neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[quoting A. Hamilton from Federalist No. 78]. With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
The last time the Supreme Court sharply narrowed its interpretation of the right to free exercise, 25 years ago in Employment Division v. Smith, it provoked so much concern that the decision led directly to the Religious Freedom Restoration Act of 1993. The RFRA restores the very demanding standard for government actions that substantially affect the right to free exercise the Court had applied in two cases from 1963 and 1972, and it passed both Houses of Congress by very large majorities. The RFRA was the basis for the decision last year in the Hobby Lobby case, in which the Court held an Obamacare rule on contraceptives invalid.
The strong support for the RFRA and the Court's demonstrated willingness to apply its demanding standard tells me this is still quite a religious nation, and that believers are willing to fight for their beliefs. I will not be surprised if there is widespread defiance of the arbitrary, flagrantly unconstitutional dictate in Obergefell. The Supreme Court can crow all it wants about the supremacy of its decisions over the states, as it did in Cooper v. Aaron in 1958, for example--but in the end it has no power to force any state to abide by any of those decisions. The People are the final check on lawless rule.
As Justice Scalia wrote at the end of his dissenting opinion in Obergefell,
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has“neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[quoting A. Hamilton from Federalist No. 78]. With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
