SCOTUS's lawless ruling is a casu confessionis

There is a saying among those on the Left to the effect that we have a "living Constitution." By that they mean that it evolves with time. But the term has another, and more poignant meaning, made clear by today's arrogant and lawless ruling forbidding states to restrict marriage to the only people Anglo-Saxon law has ever considered capable of it: couples consisting of one man and one woman.

But today's absurd and outrageous ruling on same-sex "marriage" by the Supreme Court not only completely ignores two millennia of precedent, tradition and legal reasoning in order to impose a requirement on the states in no way justified by the Constitution (the purpose of marriage has always been for the begetting and raising of children, while allowed as a matter of courtesy and convenience also to heterosexual couples incapable of reproducing), there is also a second sense in which it can no longer be doubted that we do, indeed, have a "living Constitution." But it has nothing to do with the document Madison and the Founders wrote.

Our living constitution is named Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan and Anthony Kennedy. They, and (in fairness) the four dissenting justices who still have some respect for the rule of law, constitute as a practical matter something the Founders never contemplated: a standing and unelected constitutional convention, empowered at a whim to nullify any constitutional guarantee or- as in Roe v. Wade or today's ruling- to create new and unheard of rights out of thin air.

All that is required as that five of them think that it's a good idea. The much-vaunted Separation of Powers we all learned in school was such a stroke of genius on the part of the Founders is a dead letter. The Judicial Branch reigns supreme and unstoppable, short of a mass impeachment of power-abusing, lawless justices which- while it would be fully justified- simply isn't going to happen.

In principle, the decision could be reversed. In practice, it won't be. Never mind that only a tiny minority of gays (especially gay men, whose culture is virtually defined by promiscuity) "marry." Never mind that whatever "discrimination" existed against gays and lesbians under the old laws was a matter of behavior other than orientation (nothing prevented gay men from marrying women, or lesbians from marrying men). Never mind that the objects of today's ruling could have been achieved by granting the same privileges to gay and lesbian couples under the law that married couples enjoy without redefining the foundational institution of Western civilization in a way likely to doom it. Never mind that both lesbians and gay men are shown by the best studies to divorce at a spectacularly higher rate than do heterosexual couples. Never mind that long-term monogamous relationships between gay men are practically unheard of. The genie is out of the bottle- or closet, or whatever- and isn't going to be put back. No future Supreme Court will reverse today's ruling, and given the effective embargo the totalitarian tactics of the Left and the ideological biases of the media have created on dissenting views or arguments that today's ruling might not be such a good idea after all, we will never reach a time when sufficient political muscle to even threaten to get a pro-marriage amendment to the Constitution adopted.

Already voices are being raised advocating the legality of plural marriage. Somewhere down the line some future Supreme Court is going to force states to recognize those, too. Laws against incest are far from secure. Today's ruling in effect marks the death of traditional marriage as an institution in the United States, as it has already died in Canada and in much of Europe.

So where do we go from here, now that monogamy has already been effectively dropped by the State as a fundamental element of marriage and we wait for the other shoe to drop? Marriage is not, and never has been, a human institution. It was instituted by God. The State certainly can call any relationship it wants "marriage." But no court, no legislature, and no other human institution has the authority to redefine it.

Where do we go? What do we do? We render unto Caesar what is Caesar's. We respect the legal rights today's ruling grants gay and lesbian couples. But we refuse to recognize them, either in principle or in practice, as married.

We refuse to use the unaccompanied words "husband" and "wife" in describing those they are partnered with in such relationships (count on it: they will raise holy havoc and claim that they are being oppressed by this. Tough). We can call them "partners." Or maybe- I'm still thinking this through- "civil spouses" or maybe even "civil husband" or "civil wife" Maybe even that latter is conceding too much. Christians and others who, on grounds of conscience, cannot accept today's ruling as changing the true nature of marriage will no doubt come up with a standard terminology. Hopefully, we'll do it more quickly and with more urgency than we came up with the more accurate "marriage redefinition" as an alternative to the propagandistic "marriage equality."

Secondly, to be blunt, its time the clergy grew a pair. If couples are known to be engaging in ANY sexual behavior forbidden by Scripture, they need to be placed on church discipline until and unless they repent and change their ways. If the sin is public, the excommunication should also be. This is nothing less than St. Paul instructs the Corinthians to do in his first letter.

Thirdly, congregations need to have the conviction and the guts to insist that they do so, to back them up when they do- and to refuse to associate with or recognize clergy and congregations which do not.

Fourthly, we need to make it clear, as eminent theologian Wolfhart Pannenberg has, that this is a case of status confessionis. As the Formula of Concord makes clear, when even an adiaphoron- a matter of indifference- becomes a matter of intimidation or compulsion (especially by the government), it is the duty of a Christian to resist that intimidation. How much more an issue in which the matter is an essential article of the Faith!

As Luther put it, if we confess the Faith at every point except the one point which the devil happens to be attacking at the moment, we deny the faith (a Reformed pastor gives a good explanation of how the concept applies to the current case here).

And this is a moment of confession. Today's decision marks the moment at which the Church needs to give up all pretense of being "the Establishment," or of being "winsome" or "diplomatic" with a culture which has in fact rejected and is actively hostile to what it teaches.

This is a time to confess. Like the early Christians who refused to burn incense to the Emperor, or the early Lutherans during the Interims, or Bonhoeffer and Niemoeller during the Third Reich, refusing to go along with the government is not simply an option or a strategy.

It is a duty- and to fail to do so is to deny the Faith.


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