Mixing religion,
jurisprudence, and ideology together is one potent drink. Ingestion can cause
palpable heart-burn as well as migraine headaches. In the case of gay marriage
in the U.S., sorting out and evaluating the three elements can be rife with
controversy and thus confusion. In this essay, I discuss the county clerk in
Kentucky who refused to grant marriage licenses to gay couples because doing so
would violate God’s law and thus betray Jesus. Her religious rationale makes
for interesting legal reasoning. I then look at the U.S. Supreme Court’s
gay-marriage decision. I contend that a natural-right (and thus human right)
basis clashes with ideological anger. Human nature itself is on display
throughout, particularly as it wades into religion, legal reasoning, and
ideology.
Refusing to issue marriage
licenses to gay couples, a rural county-clerk in Kentucky repeatedly said she
was acting under God’s authority. She insisted that she “must be obedient to
[Jesus] and to the Word of God.”[1]
On this basis, she claimed that affixing her name to homosexual marriages would
violate her Christian beliefs. “To issue a marriage license which conflicts
with God’s definition of marriage, with my name affixed to the certificate,
would violate my conscience,” she said. She added, “I have no animosity toward
anyone and harbor no ill will. To me this has never been a gay or lesbian
issue. It is about marriage and God’s word.”[2]
Yet the impact of her decision implies animosity, assuming she was aware of the
harm reflected on the faces of the rejected gays. One gay woman turned away
said, “Every time we go in there and we’re denied a license, it’s rejection,
it’s marginalization. . . . We feel ostracized.”[3]
This particular harm renders the clerk a hypocrite in Christian terms. I submit
that she misunderstood the notion of abomination as used in both the Old and
New Testaments, blowing it out of proportion without realizing it, or even that
such an excess on her part might be possible. I turn now to an exegesis of “abomination.”
The Hebrew word to’avah is used for “abomination” in the
verse on homosexuality in Leviticus. To’avah
“refers to that which is repulsive, loathsome, or abhorrent to another person,
usually Yahweh.”[4]
The related verb, ta’av means “to
abhor, loath, or detest”; “to commit abominable deeds”; “to be loathed,
detestable”; or “to be abhorred.”[5]
The term, which is usually translated as an abhorrence, “is used primarily to
denote that which is repugnant to God. The term’s actual meaning is less severe
than are the connotations that readily come to mind for abomination. Typically,
an abomination is thought of as so severe that no other sin can be as dire; to
commit an abomination is as though to be cast out into the dark emptiness of
space from all that is good and happy in God’s eyes. I contend that we have
heaped a lot of weight on the term that is not inherent to it.
Some of the abominations
listed in the Hebrew Bible are actually rather light. “For example, shepherds
are an abomination to the Egyptians (Gen 46:34); the psalmist is an abomination
to his former friends (Ps 88:8 [Heb. 88:9]).”[6]
Many instances deal with idolatry,” which of course is more severe inherently,
though even here even incorrect ritual of Yahweh is an abomination.[7]
Worshipping idols (Deut. 7:25), human sacrifice (Deut. 12:31; Ezek. 16:22), and
cultic (i.e., ritualistic) prostitution (1 Kgs. 14:23-24) are abominations, as
is incorrect worship of Yahweh, including defective sacrifices (Deut. 17:1) and
invalid offerers (Deut. 23:19). Forbidden meats, such as from animals that
creep on the ground, are labeled as abominations,” though the word sheqets, which also translates as
abomination, is used in the case of food (Lev. 11).[8]
In addition, “(v)arious
unethical attitudes and behavior are repugnant to God as well because they are
incompatible with his character and values.”[9]
False weights (Deut. 25:13-16), men dressing in women garb (and vice versa)
(Deut. 22:5), and remarriage with a divorcee (Deut. 24:4) are instances of to’avah. In Leviticus, to’avah is applied to several sexual
relations, including homosexuality. “Do not lie with a [man] as one lies with a
woman; it is an abhorrence” (Lev. 18:22).[10]
Lesbians apparently get a pass.
To’avah is “an abhorrence” in the English translation.[11]
Interestingly, whereas sex between two men is merely “an abhorrence,” sex with
animals is “perversion,” and thus qualitatively different from not only homosexuality,
but also any of the other abhorrences (Lev. 18:23). Those others include uncovering
until nude your mother, father, sister (or step-sister), a daughter of your son
or daughter, your father’s or mother’s sister, your father’s brother or his
wife, your daughter-in-law, your brother’s wife, and more generally a woman and
her daughter; also included are marrying a woman as a rival to her sister,
coming near a woman during her period, having sex with your neighbor’s wife,
and sacrificing any of your children to Molech, another god (Lev. 18:7-21). In
Lev. 26-30, all of these things are included in “those abhorrent things”—and
thus are all abominations. Put another way, gay sex between two men and being
in close proximity to a woman during her period are both abominations. Staying
clear of abominations turns out to be rather difficult.
Indeed, if you are arrogant or
you do not tell the truth, you are committing an abomination. “Proverbs lists
seven abominations, including pride, lying, murder, evil plots, false
testimony, and strife (Prov. 6:16-19).”[12]
It may seem strange that such a variety of sins fall under the label of abomination,
or to’avah. Homosexual acts between two men are thus not especially
abhorrent to God. Indeed, the listed detestable things, such as a woman putting
on a man’s suit, sleeping with one’s wife during her period, and being prideful
(i.e., arrogant) are suggestive of the actual meaning of to’avah as an abhorrence, which is defined as “a feeling of extreme
repugnance or aversion or utter loathing,”[13]
has little or nothing to do with the degree of severity of a practice.
To understand why something as
innocuous as being arrogant, lying, putting on a dress (a man) or a suit (a
woman), or uncovering a woman is an abomination, it is helpful to investigate
why Yahweh is listing abominations. His concern, or focus, is on his will being
violated, and thus ignored, by his chosen people. His “revulsion” is “toward
practices counter to his expressed will.”[14]
Hence Lev. 18 begins with the LORD telling Moses to tell the Israelite people,
“You shall keep My laws and My rules, by the pursuit of which man shall live: I
am the LORD” (Lev. 18:5) and ends with “You shall keep My charge not to engage
in any of the abhorrent practices [i.e., abominations: to’avah] . . . I the LORD am your God” (Lev. 18:30).[15]
Fidelity to the covenants and
divine decrees is the litmus test that Yahweh uses to assess whether the chosen
people are indeed His. Ultimately, perhaps, being ignored may have an
existential basis here—but can a deity cease to exist on being cast out of mind
by the chosen people? At the very least, considering the people’s option to
worship other gods such as Baal, a hint of jealousy may also be in the divine mix
(even if the sordid quality discredits the concept of that deity, as Nietzsche
suggested). If the crucial point to Yahweh is the fidelity of His chosen
people, it follows that the question of the ethical or even religious
severities of the abhorrent practices themselves is beside the point. In other
words, severity cannot be inferred from the fact that the practices are detestable
to Yahweh.
Plato’s Euthyphro can provide additional understanding here. Socrates asks whether the gods love piety because
it is pious, or whether the pious is pious only because the gods love it.
Socrates goes with the former rather than the latter. Leibniz, a Christian
philosopher, put the question in monotheistic terms. "It is generally
agreed that whatever God wills is good and just. But there remains the question
whether it is good and just because God wills it or whether God wills it
because it is good and just; in other words, whether justice and goodness are
arbitrary or whether they belong to the necessary and eternal truths about the
nature of things."[16]
To Socrates (and thus Plato), justice and goodness are eternal moral verities,
and thus cannot be subject to the whims of gods. The Abrahamic deity, however, cannot
be other than good and just, for it is goodness itself and perfect justice—and,
as Leibniz and Aquinas were wont to affirm, perfect being as well. Yahweh
cannot but will the good and the just, for He is omnibenevolent and perfect
justice. In other words, the question’s very dichotomy collapses.
Put in terms of the abominations, however, a similar
dichotomy survives. Are the practices abhorrent to Yahweh simply because He
declares them to be so, or are they intrinsically detestable? The abhorrence
depends on being decreed as such because practices like eating the meat of
animals that creep on the ground are not in themselves detestable apart from
being decreed as such. Precisely because of the lack of inherent detestability
of at the very least some of the practices, as well as Yahweh’s firm intent
that His people obey rather than ignore Him, the detestability of abomination
is dogmatic in the sense of being arbitrary rather than innate. I suspect that
the Jesus of the Gospels understands this, and is therefore content to preach
against only the practices whose substance he considers to be worthy of being
denounced on its own demerits rather than to replicate Yahweh’s point on the
importance of following God’s law. Before turning to the Gospels, a bit more on
the relevant translations is in order.
The Greek word usually used in
the Septuigint for to’avah is bdélygma
“in the sense of abhorrence and repugnance.”[17]
Definitions
of bdélygma:
1.That
which emits a foul and odor and thus is disgustingly abhorrent (abominable,
detestable);( figuratively) moral horror as a stench to God (like when people
refuse to hear and obey His voice). (HELPS Word-studies)
2. Transliterated
as bdélugma in Strong’s Concordance: a detestable thing, an
abominable thing, an accursed thing).
Bdélygma comes
from bdelýssō:
Technically, bdelýssō means to stink,
or become foul (abhorrent), or detestable as in stench; "to
strongly detest something on the basis that it is abominable–'to abhor, to
abominate'.” Bdelýssō is in
turn derived from bdeo, “to
reek with stench” (HELP
Word-Studies).
In the Gospels, Jesus does not
take a position on homosexuality. Nor does he apply “abomination” in its
ethical sense, which in itself is not distinctly or even fundamentally religious
in nature. Especially in the Prophets, the Septuigint uses anomia (“lawlessness”) too—“a purely ethical concept”—for to’avah.[18]
Although to’avah is translated in the
Wisdom literature as bdélygma and sometimes even as akathartos or akatharsia
(“impure”), “the emphasis nevertheless remains ethical rather than cultic.”[19]
Although “abomination” is applied in the Bible beyond the distinctly religious
terrain as “a purely ethical concept,” Jesus in the Gospels does not do so. Instead,
he uses bdélygma in the same sense that it is used in the Book of Daniel—in
terms of the end of the world. In particular, “Matthew and Mark use [bdélygma]
in their parallel accounts of Jesus’ eschatological discourse” (Matt 24:15;
Mark 13:14).[20] Because
the Hebrew Bible applies to’avah ethically
to certain sexual relations, including homosexuality and yet Jesus is silent on the issue and does not
even use bdélygma for ethical
matters even though he uses the term eschatologically, we cannot conclude that
Jesus of the Gospels is opposed to homosexuality. At the very least, he does
not view it as important enough in religious (or the related ethical) terms to
include in his preaching, or the writers of the Gospels ascribed a lack of
importance of the issue to Jesus.
Whereas Jesus of the Gospels
is mute on gay marriage, he does preach and act on including those who
are marginalized societally. For example, he eats with the unclean. It seems,
therefore, that the clerk’s Christian beliefs contradict those of the Jesus of
the Gospels, or at least she was acting contrary to Jesus’ teaching and example
in order to avoid a sin. Since Jesus does not speak on gay marriage itself,
committing the sin would not be worth violating something that Jesus
emphasizes. Therefore, we can question the clerk’s choice from a Christian standpoint—assuming that being Christian entails
following his preachments and example.
That the clerk would decide to
marginalize the marginalized and yet consider herself Christian suggests the
presence of cognitive dissidence, especially given her stated explanation. “I
own my life to Jesus Christ who loves me and gave His life for me.”[21]
That she believed she owes her very life to Jesus makes her refusal to follow
his preaching and example on how to regard and treat societal and even
religious outsiders all the more perplexing.
Furthermore, that the clerk
believed that signing gay-marriage certificates “is not a light issue for me.
It is a Heaven or Hell decision.” The condition of her soul after the death of
her body hinged on one particular issue, and even more narrowly, on signing her
name on a piece of paper.[22]
One of the clerk’s lawyers told the U.S. Supreme Court, “This searing act of
validation [of gay marriage] would forever echo in her conscience.”[23]
Taking a step back, both the acting being searing
and the unending echoing in her conscience—of which she was a prisoner to,
according to her lawyers[24]—may
seem exaggerated, even blown out of proportion. Ironically, her soul and the
matter of salvation (as well as heaven and hell) are effectively trivialized,
as they can hinge on the signing of a name.
From The Creation of Adam, painted by Michelangelo between 1508 and 1512. The outstretched fingers do not touch. This could imply the "wholly other" aspect of the Abrahamic deity, as well as that humans fall short of having certitude regarding even that we take to be divine revelation.
Generally speaking, the human
brain may not be able to handle religious beliefs very well. The nature of the
domain of religion, including spirituality outside of a formalized religion,
may trigger cognitive and judgmental impairments that are protected by a wall
of denial. Specifically, self-critical feedback loops may be
inoperative—reasoning that would otherwise raise the mere possibilities of
logical inconsistency, treating belief as knowledge, flawed judgment regarding
something’s importance (i.e., making a mole hill into a mountain and not
realizing it), and simply being wrong (i.e., not infallible) in terms of belief
or impaired in judgment. To hold that divine revelation gets to our realm like
sunshine through a window darkened by smoke, as Augustine held, and yet to
treat a held interpretation of scripture as truth is but one case of the
cognitive impairment. Perhaps the human brain is not able to relate different
thoughts bearing on or being religious beliefs, such that the brain cannot
essentially police (i.e., restrain) itself.
Of course, the assumption that
the clerk refused on religious grounds may be wrong. Instead, ideological
prejudice may have been her true motive. Circumstantially, a woman related to
the clerk by marriage said, “She’s standing strong against the gays. And I
agree with her. The Bible says husband and wife. Not two women, and not two
stupid men. This world has become so sick that it is ruining our young generation.”[25]
Opposing the gays can be distinguished from not wanting to go to hell. The
expression “standing strong against” is not in itself religion. Calling gay men
stupid is also not particularly religious. Tellingly, the woman does not refer
to gay women as stupid, so anger toward men—the clerk having been divorced
three times—could be the driving force behind the clerk’s refusal. A cynicism
toward marriage may also have been in the mix, given that the clerk was then on
her fourth marriage. Therefore, the inconsistency from a Christian criterion
may be a function of ideology rather than religion being the underlying
motives: blind anger and biased ideological vigor.
As for the legality of the
clerk’s refusal to issue marriage licenses, the U.S. Court of Appeals
concluded, “It cannot be defensibly argued that the holder of the Rowan County
clerk’s office, apart from who personally occupies that office, may decline to
act in conformity with the United States Constitution as interpreted by a
dispositive holding of the United States Supreme Court.”[26]
The dubious legal ground of the clerk’s claim was not even sufficient for the
court to issue a stay on appeal. An official at the Human Rights Campaign noted
that the clerk “has the fundamental right to believe what she likes, but as a
public servant, she does not have the right to pick and choose which laws she
will follow or which services she will provide.”[27]
For an elected official to refuse to enforce the law is tantamount to refusing
to do the job. In the private sector, such a person would be fired. The clerk
could have been removed by a judge.
The reasoning in the clerk’s
legal defense is itself flawed. Before taking office as county clerk in 2015,
she swore an oath to support the constitutions of the U.S. and the Commonwealth
of Kentucky, “so help me God.”[28]
Her lawyers wrote that she “understood this oath to mean that, in upholding the
federal and state constitutions and laws, she would not act in contradiction to
the moral law of God, natural law, or her sincerely held religious beliefs and
convictions.”[29]
In other words, the lawyers interpreted “so help me God” as including
additional content that she was swearing to support. I submit that the function
of the phrase is to validate the oath rather than to add additional substance
(i.e. material) to it. In effect, a person saying “so help me God” at the end
of taking an oath is confirming an intent to be bound by the aforementioned (i.e., the oath’s
content) obligations, rather than adding more. Put another way, the phrase is
part of the process of oath-taking rather than content in the oath.
Turning now to the U.S.
Supreme Court’s 5-4 ruling in Obergefell v. Hodges (June 2015) in favor of gay
marriage, the majority provides a natural rights (and thus human rights) basis
while two justices wrote dissents in which anger and ideology are salient. I
contend that the legal argument that gay marriage is a human right is sound,
whereas the basis in ideology is not—at least in regard to jurisprudence.
On the day of the decision,
Texas Attorney General Ken Paxton
lamented that "the United States Supreme Court again ignored the text and
spirit of the Constitution to manufacture a right that simply does not exist.
In so doing, the court weakened itself and weakened the rule of law, but did
nothing to weaken our resolve to protect religious liberty and return to
democratic self-government in the face of judicial activists attempting to tell
us how to live."[30] Deniers of a right newly recognized would
of course view it as manufactured and thus as artificial. In recognizing
same-sex marriage as a right under the U.S. Constitution, the high court
followed in the tradition wherein rights presuppose government. Even so, the
Court’s justification arguably implies that the right is natural in the fullest
sense—that is, being valid even in the state of nature even if political,
moral, or religious ideology objects under juridical garb.
Analysis of the court’s
decision bears out the naturalness of the newly-enshrined right. “The first
premise of this Court’s relevant precedents is that the right to personal
choice regarding marriage is inherent in the concept of individual autonomy.”[31]
Human beings are naturally autonomous.
We naturally bristle at being told what to do. Law is by its very nature
a constraint. We are “hard-wired” by our very nature to be free. The problem is
that one person’s innate sense of autonomy can result in conduct that harms
other persons—the harm impairing their innate autonomy. Hence, a just rationale is derived for
government being able to limit the autonomy of people.
The Court goes on to note that
“(d)ecisions about marriage are among the most intimate that an individual can
make. Intimacy itself is natural, even if psychological defense-mechanisms get
in the way in more than a few people not only in their own intimate
associations, but also those of others. Yet even those people would doubtless
agree that emotional intimacy is naturally something that should be respected,
or at the very least that it is human.
Whether a person falls in love with someone of the same or the other
gender, the falling in love is natural because it can neither be concocted nor
the feeling ended simply by an act of will. The phenomenon of falling in love is
therefore human, all too human, rather than being a mere whim of the human will.
Living together in a condition
of emotional intimacy can be regarded as the natural telos of being in love. Two people in love naturally desire to be together.
The desire may even be instinctual as long as both people are in love. Hence,
the Court declares, “A second principle in this Court’s jurisprudence is that
the right to marry is fundamental because it supports a two-person union unlike
any other in its importance to the committed individuals. The intimate
association protected by this right was central to Griswold v. Connecticut,
which held the Constitution protects the right of married couples to use
contraception. . . . Same-sex couples have the same right as opposite-sex
couples to enjoy intimate association, a right extending beyond mere freedom
from laws making same-sex intimacy a criminal offense.”[32]
The enjoyment of intimate association is so intrinsic to human nature that
depriving persons of the experience violates a fundamental right—one that is
natural in the sense that persons would naturally defend it in the state of
nature. In other words, the right is a natural right, and thus a human right,
rather than one to be granted (or taken away) by either a court or a majority of
an electorate.
That an infertile man and
women, or a couple of the same sex, cannot have children does not mean that the
right to marry—to pledge to be together in a formal way and based on love—is
not a natural right. Couples who are not able to have children together can
feel deep emotional intimacy, which alone can make life worth living together.
Accordingly, the Court declares, “A third basis for protecting the right to
marry is that it safeguards children and families and thus draws meaning from related
rights of childrearing, procreation, and education. . . . This does not mean
that the right to marry is less meaningful for those who do not or cannot have
children. Precedent protects the right of a married couple not to procreate,
so the right to marry cannot be conditioned on the capacity or commitment to
procreate. “[33]
No one would take seriously a county clerk refusing to marry a retired man and
woman whose love is mature rather than oriented to having kids.
The Court’s grounding its
decision on natural law surprised me; less remarkable is the predictable
inclusion of the constitution’s equal-protection (under the law) clause. I
contend that this basis for such a decision is not without drawbacks in terms
of federalism. The Court bases its equal-protection argument on its natural
right argument as follows:
“The right of same-sex couples to marry is
also derived from the Fourteenth Amendment’s guarantee of equal protection. . .
. The challenged laws burden the liberty of same-sex couples, and they abridge
central precepts of equality. The marriage laws at issue are in essence
unequal: Same-sex couples are denied benefits afforded opposite-sex couples and
are barred from exercising a fundamental right. Especially against a long
history of disapproval of their relationships, this denial works a grave and
continuing harm, serving to disrespect and subordinate gays and lesbians.”[34]
To be sure, Mississippi’s Governor, Phil Bryant,
was on solid ground in claiming that the U.S. Supreme Court "usurped"
each state's "authority to regulate marriage within their borders."[35] The recognition of a federal right
reduces the existing and residual governmental sovereignty of the states. In
other words, the transfer of power was at the expense of the Tenth Amendment.
Given the extent of successive federal encroachments in the twentieth century,
moreover, Bryant could argue that political consolidation in an empire-scale
Union is weaker than federalism because with territorial scale comes cultural
and related ideological differences. In other words, federalizing everything
risks the loss of federalism itself, and thus restricts the ability of the
“extended republic” (which in turn consists of republics) to breath.
Federalism is a juristically valid
counter-principle in limiting the scope of equal protection to be applied at
the federal level in the U.S. system. I submit that ideology is not a valid
restraint on the reach of either natural law or equal-protection. Personal
opinion grounded in a hierarchy of values and related emotions can get in the
way of a court recognizing a natural right as a human right and in applying the
equal-protection clause to a controversial topic.
Ideology under the guise of judicial opinion is
evident in Justice’s Scalia’s dissent. Referring to the humiliation that comes
with a fundamental right going unrecognized, the Court claims, “It is
demeaning to lock same-sex couples out of a central institution of the Nation’s
society, for they too may aspire to the transcendent purposes of marriage. . .
. Bowers, in effect, upheld state action that denied gays and lesbians a
fundamental right. Though it was eventually repudiated, men and women suffered
pain and humiliation in the interim, and the effects of these injuries no doubt
lingered long after Bowers was overruled.” Justice Scalia argues in contrast that “human
dignity cannot be taken away by the government. Slaves did not lose their
dignity (any more than they lost their humanity) because the government allowed
them to be enslaved. Those held in internment camps did not lose their dignity
because the government confined them. And those denied governmental benefits
certainly do not lose their dignity because the government denies them those
benefits. The government cannot bestow dignity, and it cannot take it
away."[36] The claim that slaves did not lose their
dignity does not come out of the body of knowledge in jurisprudence; rather,
psychology and sociology are the relevant disciplines. Unless Scalia holds an
advanced degree in either of these fields, his claim is beyond his ken. His
presumption to be well-versed in those fields and thus able to know from an
empirical basis (e.g., history) that governments did not deprive slaves of
their dignity in the U.S. is problematic rationally, and this in turn points to
the presence of an underlying ideology impairing Scalia’s cognition.
To be sure, plenty of emotion was involved as
well. This is prime facie evident in Scalia’s calling Kennedy’s opinion
“often profoundly incoherent” and declared that its “style is as pretentious as
its content is egotistic.”[37]
At another juncture, Scalia ridicules Kennedy’s language as “sounding like an
aphorism from a fortune cookie.”[38]
Clearly, more is involved in Scalia’s “legal” opinion than jurisprudence. The reputation
of the Court itself suffers because legal reasoning and judgment is the only basis of the Court’s authority. Put
another way, if the “liberal” and “conservative” justices can be clustered
because they tend write from the standpoint of their respective ideologies,
then a more legitimate basis would be to have the people decide directly
through referendums attached to ballots. Unfortunately, however, even
fundamental rights can be blocked by majority rule.
The Court’s Chief Justice,
John Roberts, wrote a dissent, but that he did not sign on to any of his
colleagues’ dissents may suggest that he felt the need to buttress the Court’s
reputation as per its legitimating foundation of legal reasoning. “I
would be shocked if Roberts ever got near the invective that Scalia uses,”
Lucus Powe, a lawyer who follows the Court, said.[39]
Were Roberts to “go off” in his legal opinions,
people would naturally wonder why we are leaving such important decisions up to
nine people. Even supporters of gay marriage “appreciated Roberts’
restraint — and reasoning — in his dissent . . . , even though he ultimately
rejected the notion of a constitutional right to marry for gays and lesbian
couples.”[40]
It might even be said that the U.S. Supreme Court is in the business of producing
well-reasoned analyses based on jurisprudence. “The two best
opinions Roberts has written on the court are his opinion in the Obamacare and
gay marriage cases,” said Walter Dellinger, who served as acting solicitor
general in the Clinton administration.[41]
He added, “While I don’t agree with his bottom line in the same-sex marriage
case, he wrote the most respectful and best-reasoned argument for allowing the
democratic process to run its course. None of the advocates defending bans on
same-sex marriage at the court came close to articulating as good an argument
as Chief Justice Roberts.”[42]
Dellinger said he was struck by the difference in tone
between Alito and Roberts. “Alito could barely contain his anger and foresees
people opposing gay rights being marginalized and discriminated against
themselves, whereas Roberts speaks with great sympathy of the desire of gay
people to be married.”[43]
If Alito could barely contain his ideological anger in his legal opinion, it is not clear how much of his opinions for the
Court is really judicial as distinct from his personal agendas—his
jurisprudence serving as a subterfuge for his political ideology and emotions.
In the end, perhaps
the overriding question is whether fundamental natural rights should be subject
to the will of a majority having a certain political, moral, or religious
ideology. Max Weber’s theory of bureaucracy maintains that the particulars or
idiosyncrasies of an occupant of an office—whether in business or government—should
make no difference in his or her carrying out of the office’s duties. Whether a
county clerk is personally religious and has certain religious beliefs, or has
a particular ideology or prejudice should make no indentation on how the person
functions in that office; what the person believes and feels should not leave
their mark on the output. Similarly, whether a justice is angry or very
ideological should not affect his or her legal reasoning and judgment. Otherwise,
the individual usurps the office and thus detracts from its public service.
Human pride may be the underlying culprit—an abomination in its pedestrian usage.
The desire to fashion a social
reality as a projection of the self, as if what a person believes or feels is
truth, may be so ingrained in us all that we scarcely recognize the pathology even though it is right under our noses. Hence, religious folks could do worse than regard religious ideas, beliefs, dogmas, and practices such as worship and even related domains such as ethics (as used by religions) as being especially subject to strict scrutiny within. In other words, a religious person leaves herself vulnerable to herself as long as she regards truth as she understands and practices it as sacred in the sense of being inherently beyond self-reproach or at least self-examination from the standpoint of cognitive and judgmental dysfunctions in the person's own mind.
[1]Alan Blinder and Richard Perez-Pena, “Kentucky Clerk Defies Justices on Marriage,” The New York Times, September 2, 2015.
[4] The New Interpreter’s Dictionary of the
Bible, Vol. 1, Katharine D. Sakenfeld, ed. (Nashville, TN: Abingdon Press,
2006), p. 15.
[7] Deut.
18:9, 1 Kgs. 14:31; 2 Kgs 16:3; 21:2; 2 Chr. 33:2; 36:14. The New Interpreter’s Dictionary of the Bible, p. 15.
[10] Tanakh: The Holy Scriptures (New York:
The Jewish Publication Society, 1988), p. 184.
[12] The New Interpreter’s Dictionary of the
Bible, p. 15.
[13] Random House Unabridged Dictionary, 2nd
edition (New York: Random-House, 1993).
[14] The New Interpreter’s Dictionary of the
Bible, p. 16.
[16] Gottfried Leibniz,
"Reflections on the Common Concept of Justice," in Leroy Loemker. Leibniz:
Philosophical Papers and Letters (Dordrecht: Klumer, 1702/1989), p. 516.
[17] The New Interpreter’s Dictionary of the Bible, p.
15.
[20] The Anchor Bible Dictionary, Vol. 1,
David N. Freedman, ed. (New York: Doubleday, 1992), p. 29.
[26]
Adam Liptak, “Justices Deny Bid to Resist Gay Marriage in Kentucky,” The New York Times, September 1, 2015..
[28]
Alan Blinder and Richard Fausset, “County Clerk, a Local Fixture, Suddenly
Becomes a National Symbol,” The New York
Times, September 2, 2015.
