Put away your Bible, Justice: The new "religious freedom" arguments are neither

The faithful want to follow a "higher law" than the Supreme Court. Even some justices. Here's why they're wrong

Published July 19, 2015 9:59AM (EDT)

  (AP/Jessica Hill/Manuel Balce Ceneta/Photo montage by Salon)
(AP/Jessica Hill/Manuel Balce Ceneta/Photo montage by Salon)

Pope John Paul II famously declared, back in 2003, that “God’s authentic plan for the family as a community of life [is] founded on marriage, in other words, on the stable and faithful union of a man and a woman, bound to each other by a bond which is publicly manifested and recognized.”

Reading this, one wonders, had the pope been skipping out on his Bible-study sessions? At least as far as biblical marriage goes, he got it all wrong.

An illustrative confession.  I would like to arrange a biblical marriage for myself.  That is, a flat-out, no-holds-barred “traditional” marriage purely and distinctly in accordance with hallowed biblical criteria. Of course, I plan to follow Genesis 2:24 and “cleave” unto my wife. I’m supposed to become “of one flesh” with her. But note that contrary to Pope John Paul’s statement, the Bible doesn’t anywhere say I can have only one wife. Just after the above-cited verse, we read in Genesis 4:19 about Lamech, who took two wives. The patriarch Abraham – the founding father of three world religions -- had two, and King Solomon had 700. So I’m going to marry as many times as I like, and “cleave” unto each one in turn, depending on the night of the week.

I also plan on following the examples laid down in the Good Book and helping myself to the sexual favors of our domestic help, which I will not, however, enslave, as Leviticus 25:44-46 allows. If any putative brother of mine should kick the bucket, I will immediately wed his wife, as the Bible (Genesis 38:8-10) commands me to do, on pain of death. (Strangely, the only known death-penalty victim of this obscure biblical statute was the hapless Onan, who has undeservedly gone down in history as the world’s most notorious masturbator, when, in fact, he was only a spiteful practitioner of coitus interruptus.)

If any of my proliferating wives dare rebuke me, I’ll thunder words from Ephesians 5:22-33 at them. They must, that verse says, submit unto me “as unto the Lord” Himself.  And if they should behave foolishly, I intend to beat them, as is stipulated in Proverbs 10:12-31.

Also, I, as the Lord-designated (per Ephesians 5:23) head of my household, intend to enforce other biblical injunctions as well, including those of Leviticus. I will administer death or beatings, as the Law ordains, to my wives if they reap the edges of a field, plant differing seeds in that field (both from 19:19), pick up fallen grapes in our vineyard (19:10), sell an Israelite as a slave (25:40), or wear clothes mixing different kinds of fabric (again from 19:19).

In behaving this way, it might seem as though I’m breaking a raft of laws, state and federal. I may well be, but I don’t care! Doing otherwise would “burden my religion.” I’m obeying a “higher law” – the one decreed by the Almighty Himself. I can quote the Holy Scripture chapter and verse to prove it. That I’ve publicly decreed my atheism matters not; I can always say I converted. Who can disprove me? In any case, I have a growing number of Religious Freedom Restoration Acts to back me up, as well as the implicit support of Supreme Court Justice Clarence Thomas. Want to put me on trial? I dare you.

Seriously, though, marriage as the ancient Israelites conceived it, and as demonstrated throughout the Bible’s rapine-replete rants, sagas of savagery and mind-deadening genealogical longueurs, has precious little to do with what faith-derived custom and Western history A.D. have bequeathed to us: the “traditional” matrimony between one man and one woman. We can be thankful for that. Those discriminating against same-sex couples, alleging a RFRA-type “burden” to their religion, and planning, if necessary, to present a RFRA-based defense, should beware: the sainted scripture they plan on adducing in court consists of “wild and disorderly compositions” (to quote Thomas Paine) so larded with evidence contrary to their case that they should not stand a chance of prevailing, at least before a rational judge in a fair court.

We don’t, however, live in a rational, fair world. The Supreme Court’s recent Obergefell v. Hodges ruling in favor of same-sex marriage should have been a no-brainer, permitting, as it does, Americans of different sexual orientations to enjoy equal protection of the law, as the Constitution mandates, and as the Declaration of Independence, with its phrase “the pursuit of happiness,” proclaims. But the case split the bench five-to-four, reflecting, in a way, the division in the United States as a whole, where, despite the burgeoning tide of nonbelief and a public ever more receptive to same-sex marriage (six out of 10 Americans now support it), seven out of 10 still call themselves Christians, with evangelicals accounting for a quarter of the entire population and actually increasing in number.

So it should shock no one that for some of the faith-addled, the SCOTUS ruling settled nothing at all. A county circuit clerk in Mississippi protested that her “final authority is the Bible” and that “the Supreme Court's decision violates my core values as a Christian.” She quit, rather than issue marriage licenses to same-sex couples. Clerks in three Kentuckian counties have also refused to give marriage licenses to gays, even though the governor of that state has stated that he would obey the law. Kentucky County Clerk Casey Davis, appearing on MSNBC, noted that he had sworn “so help me God” to assume his duties and defended his decision to halt the issuance of all marriage licenses as a matter of religious conviction. He will not resign, but plans to stand his ground. South Dakota’s Republican attorney general seems to have found a compromise of sorts, permitting religious dissenters to refuse to do their job, as long as someone else in the office will. Which would not work for Decatur County in Tennessee, where the entire staff in the clerks’ office quit and stormed out.

The situation in Alabama is direst. There, 17 county clerk offices are refusing to wed gays, and surely take comfort in the open letter Win Johnson, an attorney working for Alabama Supreme Court Justice Roy Moore (who claims that “our rights do not come from the Constitution, they come from God”) wrote to Governor Robert Bentley, scolding him for saying he would observe Obergefell v. Hodges. Johnson addressed the clerks, demanding of them, "Public official, what will you do? Will you stand up for the law of Alabama, for the people, for the weak and vulnerable, for the law of God? Or will you capitulate? Will you become complicit in the takeover by the wicked?"

Johnson – remember, this man is a lawyer -- also declared that, “When the law becomes merely the opinion of a handful of people on the courts, there is no longer any law. There is tyranny. There is chaos.” Mike Huckabee agrees, and hopes to become president and fight what he so illiterately and oxmoronically described as the prevailing “secular theocracy, which is “humanistic, atheistic, even antagonistic toward Christian faith . . . . Our basic, fundamental rights are being robbed from us, taken from us piece by piece.” Huckabee is doing nothing more than pleading the (entirely bogus) Christian persecution case. No one, not least the Supreme Court (which in the Hobby Lobby decision went so far as to recognize the religious beliefs of corporations) has “robbed” Christians of any rights.

Longtime ultra-conservative Roman Catholic pundit Pat Buchanan weighed in, and what he said deserves more serious attention.  After noting that Oklahoma’s Supreme Court has recently ordered a monument to the Ten Commandments be removed from the state capitol building, despite objections from the governor (a Church of God fanatic), Buchanan predicted an “era of civil disobedience like the 1960s, where court orders are defied and laws ignored in the name of conscience and a higher law.” He implied that resisting Obergefell v. Hodges is tantamount to fighting in the American Revolution, freeing the slaves, defying Jim Crow, and even boozing during prohibition, all of which involved breaking the unjust laws of the time. In this regard, he shamelessly quotes Martin Luther King citing Saint Augustine: “an unjust law is no law at all.”

An “era of civil disobedience like the 1960s”? A more accurate description would be “a collective temper tantrum thrown by faith-deranged folks who didn’t get their way in court.” In any case, the “disobedience,” such as it is, has remained limited to the red states and shows no sign of spreading significantly farther afield (though it may well prove tenacious). Time and progress are against these flat-earther holdouts. With opposition to same-sex marriage religious in origin, and religion declining across the country, they will find themselves ever more isolated.

Obeying or flouting the law as established by Obergefell v. Hodges is not, as Buchanan has it, a matter of “conscience” but of self-interest. Violate the law and you risk legal sanction. In a representative democracy, obviously, citizens are free to band together and campaign for changes to laws they consider unjust.

And there is no law “higher” than that on which the Supreme Court has ruled. Article III of the Constitution is explicit: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Judicial power “extend[s] to all cases, in law and equity, arising under this Constitution,” and “the laws of the United States.”

The avowedly secular Founding Fathers would not, in any case, have recognized the term “higher law” (meaning “divinely ordained”) as Buchanan uses it. They founded a republic in which the government derives its power “from the consent of the governed,” not from some purported deity. Our gloriously secular Constitution makes no mention of God, let alone Christianity. If you’re in doubt, search for yourself.

It’s time we recognized “civil disobedience” against same-sex marriage for what it is: mean-spirited bullying, an attempt to forcibly impose vicious old superstitious notions of right and wrong on people wanting to do nothing more than enjoy the equality before the law provided for in the Constitution. No matter what Jesus said, the “kingdom” of these reactionary zealots is very much “of this world;” they aim not merely to practice their religion as protected by the First Amendment, but to coerce others into living by its bizarre dictates. And make no mistake about it: a healthy lust after mammon drives at least some leaders of the faith-deranged, as Buchanan and others imply when worrying aloud that secularists may next take aim at abolishing religious tax exemptions.

And it’s time we appreciate how wonderful our progress has been, fragile though it may be, from the law of the jungle to the rule of law, from the almost universal sleep of faith to the awakening of reason now underway. If we had contented ourselves in, say, science, with the crude piffle of Genesis, we would today know nothing more than the ignorant human primates who concocted it millennia ago, when gravity was a mystery, the composition of matter and light unknown, the Earth at the center of the universe, and the gods or God behind every thunderstorm and earthquake. We have disproved the voodoo “knowledge” religion preaches about cosmogony, and can safely ditch its “moral” certitudes, too, in favor of solutions arrived at through reason, discussion and consensus.

Meanwhile, faith-deranged tantrum-mongers will fume and foam at the mouth, at least for a time. Their best plan of action may well be an active retreat from the rest of us, otherwise now known as the Benedictine Option, which faith leaders have already begun proposing.

If such is their choice, rationalists should not stand in their way.






By Jeffrey Tayler

Jeffrey Tayler is a contributing editor at The Atlantic. His seventh book, "Topless Jihadis -- Inside Femen, the World's Most Provocative Activist Group," is out now as an Atlantic ebook. Follow @JeffreyTayler1 on Twitter.

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