Two prospective jurors in Missouri were stricken from a jury pool in a recent case because of their Christian faith. During jury selection, the plaintiff’s attorney wanted to know “whether the prospective jurors believed that homosexual conduct is sinful and whether they believed that gays and lesbians should not enjoy the legal rights possessed by others.”
The two jurors stated they believe homosexuality is a sin. The judge then granted a motion from the plaintiff’s attorney who argued “there’s no way” that someone who “looks at a gay person” and says “you are a sinner” could “fairly consider a case involving a lesbian plaintiff.” The judge dismissed the two jurors “for-cause,” meaning that the judge found the jurors’ Christian beliefs caused them to be biased against the lesbian plaintiff.
The Supreme Court recently declined to review the Missouri case on technical grounds. However, Justice Samuel Alito took the unusual step of writing a statement explaining his concerns with the Missouri court: “I write because I am concerned that the lower court’s reasoning may spread and may be a foretaste of things to come.” Alito noted how the Missouri Court of Appeals “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.”
Alito’s prophecy
Justice Alito noted that the Missouri holding “exemplifies the danger” he had anticipated with Obergefell v. Hodges, the landmark 2015 case in which the Supreme Court found that same-sex couples have a constitutional right to marry, 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.”
Justice Alito wrote in his Obergefell dissent that the decision “usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” He also said Obergefell “will be used to vilify Americans who are unwilling to assent to the new orthodoxy” and warned 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.”
Two years prior to Obergefell, the Supreme Court overturned the Defense of Marriage Act in United States v. Windsor. Alito again dissented and cautioned: “The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.” Moreover he said that: “No one, including social scientists, philosophers, and historians, can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment.”
What evils Obergefell hath wrought
Needless to say, Alito’s words have proven prophetic. Even with this clairvoyance, Alito could not have predicted the vast and rapid moral decay in our system of government caused by the Supreme Court decision in Obergefell.
The Justices on the Supreme Court did not predict that within less than a decade, two citizens in Missouri would be removed from jury service because of their Christian faith; a federal agency would create a gender pronoun policy that forces federal employees to use preferred pronouns or be fired; states would remove children from their parents if they refuse to affirm the child’s newly chosen purported transgender identity; states like Idaho would have to propose and pass laws to prevent doctors from mutilating children under the guise of so-called gender-affirming care; and college professors would rebrand pedophiles as “minor attracted persons.”
The list could continue indefinitely. For conservative Christians, there seems to be no end to the descent into madness caused by Obergefell.
Overturning Obergefell
For Christians to stem the madness of Obergefell, we must start fighting Obergefell in the same way Christians fought Roe v. Wade. Luckily, Alito provided the roadmap for overturning Obergefell.
In New York Rifle and Pistol Association v. Bruen, Justice Clarence Thomas wrote the opinion of the Supreme Court and held that “the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home.” The Supreme Court thereby rejected a two-part test to determine whether individuals have a constitutional right to bear arms, instead adopting a textual historical test which requires any government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
The Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade using the same analysis. Alito, writing the majority opinion, explained that alleged rights not found in the Constitution “must be deeply rooted in this nation’s history and tradition and implicit in the concept of ordered liberty” in order to be protected by the Due Process Clause of the Fourteenth Amendment. In other words, if a “right” is not explicitly protected by the Constitution, then the court looks to whether that “right” is part of the nation’s history and tradition. If not, then the supposed “right” is not a constitutionally protected right at all and may be regulated by the government.
Applying this same test in his dissent to Obergefell, Justice Alito stated that “liberty under the Due Process Clause should be understood to protect only those rights that are deeply rooted in this nation’s history and tradition,” and that “it is beyond dispute that the right to same-sex marriage is not among those rights.” He added that: “No state permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000.”
Not mentioned in Alito’s dissent, but worth noting here, sodomy was illegal throughout much of the United States prior to the Supreme Court decision in Lawrence v. Texas in 2003. The Supreme Court even upheld criminal sodomy laws as recently as Bowers v. Hardwick in 1986. Moreover, there is almost two millennia of Western history from Constantine through Alfred the Great, the English common law, William Blackstone, and the United States prior to 2015 that demonstrate Christian governments have always criminalized sodomy and purported same-sex marriage.
Herein lies the roadmap to overturning Obergefell: Christians in state legislatures must begin passing laws to directly attack Obergefell. The right to so-called same-sex marriage and sodomy are not deeply rooted in the history and tradition of this nation. Therefore so-called same sex marriage and sodomy are not protected by the Due Process Clause of the Fourteenth Amendment, and states can regulate the practices.
Alito has once again opened the door to challenging Obergefell. Christians must no longer “whisper their thoughts in the recesses of their homes” or fear “being labeled as bigots and treated as such by governments, employers, and schools.” Christians at every level of state government must rather begin taking this fight to the headwaters and challenging the cultural madness at the very source.
