Separation of Church and State

Despite the information discussed above, there can be impenetrable denial on the part of the militant, gay activist, who often equates promiscuity with personal empowerment, a self-avowed lifestyle choice that expresses hard-won gay rights. Likewise, sex addiction treatment via professionals or 12-step support can appear as a moralistic judgment against individual freedoms.

Finally, although the behavioral characteristics of highly functional successful people and psychologically challenged influential people occasionally intersect, the highly functional successful person in society displays altruistic near-term and long-term goals – they desire to contribute to the well being of as many others as they can (think Bill Gates, Warren Buffett and Steve Jobs – in the end). But, influential and psychologically challenged individuals primarily work to benefit themselves to the exclusion of the vast population. That’s a difference and a distinction.

This discussion is not meant as a diagnosis of any individual or group. Its purpose is to introduce into the discussion the concept that those pushing the hardest to change the American cultural landscape with respect to the lodestone of Western Civilization – the nuclear family – are doing so for other than altruistic reasons.

Based on the discussion above, it is certainly conceivable that they are motivated by reasons that do not qualify as legitimate enough to shatter the eons of cultural understanding and practice, and the countless generations that have produced our nuclear family-centric society. Indeed, an unrecognized social pathology is a dangerous thing.

If a straight person manifests moral and ethical beliefs in a religious context, why is that any different than a homosexual person manifesting his or her beliefs in a secular context? Is the secular context protected where the religious context is not? Of course it isn’t. If anything, the religious context is the protected context because it was given the place of primacy in the People’s Bill of Rights as the first issue in the 1st Amendment to the Constitution. That was not accidental. It reflected the importance of the historic principle that the state shall have no place in the free exercise of religion by the People – whether that be action or a refusal to act.

Even if the homosexual person is exercising his or her beliefs in a religious context within a church that conducts gay marriage ceremonies, how does that religious institution have precedence over another religious institution that does not condone gay marriage? It does not, of course.

If a straight person manifests moral and ethical beliefs in a secular context, how is that any different than a homosexual person manifesting his or her beliefs in a religious context? Is the secular context protected where the religious context is not? Again, of course it isn’t because moral truths and ethical behavior based on moral truths are inherently human in nature – they are part of our species like race, gender and ethnicity. They have historically found voice in ancient texts that form the basis for our religious institutions – like the Bible for our Judeo-Christian ancestors who founded our great nation.

As citizens, we operate in two spheres, two universes, if you like – the private sphere and the public sphere. In the private sphere, citizens are sovereign unto themselves, animated by whatever moral and ethical code their conscience demands – that conscience being informed by whatever experiences their mind has evolved or encountered. The private sphere ends at the tip of one’s nose, so to speak. The public sphere begins whenever an individual enters the private sphere of another, either actually or figuratively.

Entering another’s “sphere” includes the collective sphere of all other citizens so, by entering any other sphere, the individual has an effect on another individual or collection of individuals. It is in this sphere, the public sphere, that governments are provided with a limited, though revocable, sovereignty – by the People. It is a portion of the People’s sovereignty, inalienably granted to them by God, which is “loaned” to government for efficiency and effectiveness – to accomplish what individuals alone cannot – such as protecting the Constitutional rights of the individual citizen.

Since it is the People’s sovereignty, it must be animated by the People’s collective moral and ethical code; it must be conscientious and it must be informed by the collective experiences and evolution of the People’s collective mind. In other words, it must reflect a common moral and ethical code. For America, that moral and ethical code is bound to the collective wisdom and traditions of Western Civilization, specifically, the Judeo-Christian ethic.

Government therefore, cannot act in an immoral or amoral, or unethical, manner. This doesn’t mean that government must be religious, it cannot be – per the Constitution. It must therefore, be secular. But it cannot be secularly immoral or amoral, or unethical either. Consequently, situational ethics, secular humanism and moral relativism (to be discussed in detail later) have no place in government because they do not reflect the common moral and collective code or the collective wisdom and traditions of Western Civilization.

By requiring a Christian citizen to accept the moral equivalency (moral relativism) of traditional and “gay” marriage, government is infringing on the private sphere of the Christian citizen, as well as the constitutionally exempt issue of religious freedom. The People specifically prohibited the federal government from becoming involved in any way with private religious belief.

Public officials, so designated, may perform ceremonies to formally link gay partners in a familial way. Religious institutions that have so decided, may perform ceremonies to formally link gay partners in a familial way. But, no individual may be required by government to recognize, in any way, these unions as “marriage” or be required to support these activities, in any way, if they conflict with individual religious belief. Two popular examples may be instructive.

A gay couple asks a baker to provide a “wedding” cake for their “wedding” reception. They desire the baker to decorate the cake with the salutation: “Congratulations to William and Robert on their Wedding Day” under a rainbow. The baker declines, saying that such an undertaking would violate his religious convictions. The couple sues the baker for discrimination based on sexual orientation – a “protected” classification.

The second example is about a gay couple that asks a baker to provide a cake for their anniversary. They desire the baker to decorate the cake with the salutation: “Congratulations to William and Robert on the 10th Anniversary of “The LGBTQ Boutique”, their small clothing business. The baker declines, saying that such an undertaking would violate his religious convictions. The couple sues the baker for discrimination based on sexual orientation.

In the first example, the couple loses (if the case is decided on Constitutional grounds – not a given because of progressive/liberal/Democrat activist Federal judges with political agendas) because the government has no standing in matters of religious belief and traditional marriage is a religious matter under the Judeo-Christian tradition. In the second case, the couple wins because the character of their business is not of a religious nature. If their business was as “LBGTQ Wedding Planners”, they would have lost (with the same caveats as above) – for the same reason as in example 1.

As long as we are talking about the courts, it is important to understand that the Constitutional role of the Supreme Court was defined in 1803 in the case of Marbury v. Madison, 5 U.S. 137 (1803), which was the landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed Justice of the Peace in the District of Columbia by President John Adams but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the new Secretary of State, James Madison, to deliver the documents.

“The Court, with the legendary John Marshall as Chief Justice, found firstly that Madison’s refusal to deliver the commission was both illegal and correctible. Nonetheless, the Court stopped short of ordering Madison (by writ of mandamus) to hand over Marbury’s commission, instead holding that the provision of the Judiciary Act of 1789, that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III of the Constitution established. The petition was therefore denied.

Chief Justice Marshall wrote the opinion of the Court. Marshall presented the case as raising three distinct questions:

* Did Marbury have a right to the commission?

* Do the laws of the country give Marbury a legal remedy?

* Is asking the Supreme Court for a writ of mandamus the correct legal remedy?

Marshall quickly answered the first two questions affirmatively. He found that the failure to deliver the commission was “violative of a vested legal right.”

In analyzing the third question, Marshall divided the question further, asking if a writ of mandamus was the correct means by which to restore Marbury to his right, and if so, whether the writ Marbury sought could issue from the Supreme Court.

Concluding quickly that since a writ of mandamus, by definition, was the correct judicial means to order an official of the United States (in this case, the Secretary of State) to do something required of him (in this case, deliver a commission), Marshall devotes the remainder of his inquiry at the second part of the question: “Whether it [the writ] can issue from this court.”

Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the Constitution, which defines the Supreme Court’s original and appellate jurisdictions.

Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme Court’s – Constitutionally authorized – original jurisdiction. [That can only be accomplished with a Constitutional amendment.] Consequently, Marshall found that the Constitution and the Judiciary Act are in conflict. This conflict raised the important question of what happens when an Act of Congress conflicts with the Constitution?

Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position Marshall looked to the nature of the written Constitution – there would be no point of having a written Constitution if the courts could just ignore it.

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”

[Keep this concept in mind when we discuss recent Supreme Court rulings and several Courts’ discovery of hidden rights within the written Constitution. Where are the Courts’ limits?]

Marshall also argued that the very nature of the judicial function requires courts to make this determination. Since it is a court’s duty to decide cases, courts have to be able to decide what [existing] law applies to each case. Therefore, if two laws conflict with each other, a court must decide which law applies.

[By extension, of course, Marshall would not counsel the Court to create its own laws to solve a legislative dilemma. That function is strictly within the Congress.]

Finally, Marshall pointed to the judge’s oath requiring them to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the “Constitution” before the “laws of the United States.” Part of the core of this reasoning is found in the following statements from the decision:

“It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule as to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

“If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

“Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].”

“This doctrine would subvert the very foundation of all written constitutions.”

In denying Marbury’s request, the Court held that it lacked jurisdiction because Section 13 of the Judiciary Act passed by Congress in 1789, which authorized the Court to issue such a writ, was unconstitutional and thus invalid.” Marbury never became a Justice of the Peace in the District of Columbia.”

Under Marshall’s conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases. [Remember this, too – especially in Roe v. Wade.]

Jefferson criticized some of Marshall’s reasoning in this case:

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

[Jefferson’s concern has become a fatal flaw in the hands of ideological PLDC judges.]

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of co-equal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution’s terms. Despite such criticisms of Marbury v. Madison, judicial review has been accepted in the American legal community since the day it was issued.

On the other hand, the Constitution, unlike the Articles of Confederation, created an independent judiciary, and gave it power to resolve matters arising under the Constitution, controversies between two states and disputes between the federal government and a state, suggesting that the Framers of the Constitution intended the court to act as, in effect, an arbitrator, to which the parties appearing before it would be bound.

Marbury v. Madison is one of the oldest precedents in U.S. law and has never been seriously challenged. Even critics like Alexander Bickel in his book, The Least Dangerous Branch, suggests that Marshall’s argument implies that judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases. Nowhere in the opinion does Marshall discuss any ability of the Court to change, amend or create new law or even to consider the consequences of its decision.”

With the 19th Century case of Marbury as background, we now consider what the Supreme Court does in the 21st Century with matters of church and state.

Next time: Obergefell v. Hodges. Buckle up.

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