I taught Constitutional Law for many years and I studied in detail back in the 1950’s an interview where I saw Hugo Black on television. He was one of the great jurists of the 20th Century. He was sitting with a copy of the Constitution in his hands, and every time someone asked him a question, he would act like he was going for his Bible. Instead, he would go to the Constitution.
One of the interviewers asked him this question, “Justice Black, when you are making a decision about a law, do you make that decision on the basis of whether it is stupid law, a silly law, a practical law, a rational law?” He answered, “Absolutely not! There are many stupid, silly laws that are perfectly constitutional. The only thing I make my decision on is whether or not a law is constitutional.”
Our current court doesn’t rule that way anymore, does it?
I explored this question with one of the foremost defenders of Christian freedoms in America today. His name is Kelly Shackelford and he’s the founder and director of the Liberty Institute in Plano, Texas. The Liberty Institute is the largest organization of lawyers in America today that is dedicated to the defense and advancement of Christian rights and freedoms. His response is below.
The Rule of Law
No. I’d say we certainly have three Supreme Court justices who have always taken that approach, that the Constitution is a “living document.” We’ve got four actually who have often taken that approach, except in the Obamacare case. Justice Roberts really changed his approach in that case for some unknown reason. But, we’ve got five justices who don’t open the Constitution up for reinterpretation. That imbalance is why we have some of these decisions that are so shocking.
For example, the decision to legalize abortion and the decision for gay marriage are in actuality both supposed to be left to the States according to the Tenth Amendment. The Supreme Court had no right even to have any jurisdiction over these rulings, and yet it jumped in there and started making decisions and legislating from the bench. That’s wrong.
The Supreme Court taking on more liberties than it is allowed creates problems. For instance the abortion issues have not gone away. What the court has done really is frustrate the democratic process, the true place where these issues should be talked about and where there could be debates. People could bring up the best arguments, and the country could decide state-by-state.
That process is how same-sex marriage is supposed to be decided. For example, think of all the states where this was put up to public votes like California. Millions were spent, people debated, this and it was voted down. But, the courts, just like that, overran the will of the people.
Our country’s founders were smart. They didn’t want to put five unelected lawyers in charge of all of our public policy. That’s not the way our constitutional system is supposed to work. The Supreme Court justices are from a very narrow part of America. If you want to represent the whole country, that’s what the legislative process is for. The people we have acting as our representatives, that’s what they were meant to do. The court is not supposed to be a legislature. They’re not supposed to make policy decisions. When they do, they frustrate the legal system.
Justice Kennedy said in his majority opinion on same-sex marriage to the effect, “Our Founders just couldn’t envision all of these problems, so somebody has got to solve them.” Well, the Founders provided a process for solving problems, and it’s called the Constitutional Amendment process. Our system is perfectly capable of handling new issues. It’s perfect, but it’s just not going as fast as Justice Kennedy wanted it to go. Kennedy’s prerogative is part of the problem.
Our court system is being used to attack religious freedom. People can look at the decision on same-sex marriage and conclude it’s just about marriage, but that’s not what it is being used for. The attempt is to use that decision as a weapon to attack people who disagree with homosexuality.
Where will the attacks against Christian beliefs be targeted? School accreditation and tax-exempt status are at the forefront.
Curtailing religious freedom is not what our country is about. Our country believes strongly in religious freedom. That is why it was founded for people to have the right to religiously dissent from the government’s view. It’s interesting how we are turning full circle and we are now testing that very view of religious freedom that founded this nation.
Another direction of attack is hate crimes being applied to speech. If a pastor gives a sermon against homosexuality then they are guilty of a hate crime. This is the reality already in other countries. There was a pastor in Sweden who was actually given 30 days in jail for preaching from the pulpit on the biblical view of homosexuality. That ruling was eventually overturned when it got to their Supreme Court, but this is the beginning of the coming tidal wave of litigation.
Yet another direction of attack will be Christian programming on the air. For those who do not believe the same-sex marriage ruling will affect them, do they watch TV? What do they listen to on the radio? Do they listen to Christian programs? Do they listen to Christian ministers? Well, how can Christian programming obtain FCC licenses in order to be on the air if they are engaging in discrimination against a federal constitutional right?
This conundrum is exactly what happened in Canada. The discussion on TV of biblical view of homosexuality is no longer allowed there. Some American programming cannot be broadcast in Canada.
I believe we will see exactly the same attempt in the United States at censorship. It’s an attempt really to push through only one view on the issue. But, our First Amendment doesn’t allow for that. Still, there are attempts already starting at silencing any dissension against homosexuality on the airwaves. The arguments I’m hearing are about restricting religious freedom when it comes to commerce. They want society to only allow freedom of worship in one’s own home or church, but not in the public sector. But, that goes directly against the First Amendment right of free speech and the right of free exercise of religion.