Christine Flowers, 6/29/2015 [Archive]

Religious Groups Now Open to Lawsuits

By Christine Flowers

When I was 11, the Supreme Court legalized abortion.

It jumped into the social battles that had been waging across the country at a slow boil, snatched a constitutional right from the penumbral shadows and gave dignity to the coat hanger. After all, it was this bloody symbol that had been raised to prove that women needed abortions, and when they couldn't get them they'd resort to fatal home remedies.

And voila, the issue was finally laid to rest.

We don't do slow anymore. We want everything now, yesterday, and wrapped in a bow. When you have Supreme Court justices as willing to oblige as Harry Blackmun then, and Anthony Kennedy now, who needs to wait for society to catch up to our demands? We can just shove our desires down the collective throats of everyone who dissents, stop them from speaking, and take a victory lap.

This time the lap was taken under a rainbow flag, and timed to the rhythms of a Supreme Court gavel.

Bam! Same-sex unions are a fundamental right.

Bam! The states must give them full faith and credit, even if a particular state finds this to be against its public policy.

Bam! People of faith must tread carefully when they object.

Bam! Cakes must be baked (that one is for you, Indiana.)

Kennedy seemed to have understood during oral arguments that something infinitely important was at stake, when he used the term "millennia" to describe the status of traditional marriage. One man and one woman is not a fad, designed to make hetero cake toppers look good.

It was the default position for generations upon generations of people who never had to wonder why they occupied a favored status in society. It was a keystone of the family unit, even though it was a flawed and rocky foundation for many. But the solidity of marriage started to deteriorate when men and women decided that they had a right to "be happy."

Which brought us to the gay-marriage scenario. Gays and lesbians, and Caitlyn Jenner, demand the right to "be happy." It's not enough to have the same legal rights as heterosexual couples, rights and privileges that are extended in domestic partnerships and through many other legal alternatives. No, they wanted to have the same standing in society as heterosexual couples, the ones that could procreate, the ones that had existed for those millennia noted by Justice Kennedy.

So the campaign began, waged under the rainbow flag. It started slowly, with a push to have laws against sodomy overturned.

Bam! Anthony Kennedy obliges in Lawrence v. Texas, and Antonin Scalia predicts the day when the court will be obligated to validate gay unions.

No, says Kennedy. This has nothing to do with marriage.

And then, Bam!, the court in Windsor decides that the federal government cannot deny federal benefits to those parties legally married in those jurisdictions that recognize it. Roberts and the other dissenters tell us to see the writing on the wall, that we are steps away from finding a fundamental right to gay unions.

No, says Kennedy, stop hyperventilating. Who is talking about fundamental rights? That question isn't before us.

And then, on June 26, 2015, Anthony Kennedy does what Anthony Kennedy has always done, and imposed his own rather florid and Harlequinesque belief in romantic love on the rest of society. He really should have been a novelist. He would've knocked Danielle Steele off the best-seller list.

With a nod to the states and those millennia of tradition, Kennedy and his liberal cohorts did exactly what the Burger court did in Roe v. Wade: silenced the voices of the opposition, bound the hands that would have cast votes in a referendum, put blindfolds on those who see dangers for people of faith.

Because that is what they have to do. If gay unions are fundamental, how can a Christian college that bars same-sex couples from living together still maintain its tax exemption? Hobby Lobby was several terms ago, and this court appears to have no concern whatsoever for either religious beliefs or constitutional coherence.

And that, my friends, is the truly threatening part in this scenario. Those who oppose same-sex marriage are now susceptible to lawsuits even if their objections are based on legitimate religious or moral principle. The First Amendment is a mighty thing, but we have seen how this court's fluid majority can circumvent its mandated protections.

In 1973, I was too young to understand the dangerous steps the court had taken. Four decades later, my eyes are open. And I'm troubled by the view.


©2015 Christine Flowers. Flowers is an attorney and a columnist for the Philadelphia Daily News, and can be reached at

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