The Supreme Court recently mandated that the American people do not have a right to truthfully define marriage as the union of one man and one woman. The National Coalition of Black Pastors and Christian Leaders, a group of over 25,000 African-American Christian churches and ministries filed a “Friend of the Court” brief in this case. Much like Noah before the flood, the pastors leading these churches and ministries carried on the lonely task of speaking truth to a Court that ultimately chose to abandon it altogether.
Their message was compelling. They began with the fundamental principle that all human beings have inherent value because God created every person in His image. Thus, it was their position before the Court that the government should never classify or discriminate against another human being based on who they are. As the African-American pastors explained to the Court in their brief, however, a person’s sexuality and sexual preferences are, unlike race, not their state of being, or even an immutable aspect of who they are. The truth is that sexual conduct is an activity. For the pastors, truth matters. It should have also mattered to the Court.
In their brief the pastors correctly argued that a State has no responsibility to promote any person’s sexual proclivities, whether heterosexual, homosexual, or otherwise—and certainly is not required to accept that one’s sexual conduct preference is the same as an immutable characteristic like race. Government may not regulate people based on who they are, but it may regulate their conduct, including sexual conduct. Even more germane to this case is the principle that government need not—and, indeed, must not—force its citizens to promote a type of sexual behavior to which its citizens object.
Marriage redefinition activist Justices contended however, that any State-approved truthful definition of marriage violated the Fourteenth Amendment. The Fourteenth Amendment holds special significance for Black Americans. The text of the Fourteenth Amendment guarantees that “no state shall . . . deny to any person within its jurisdiction equal protection of the laws.”
When the Fourteenth Amendment became law, many Black Americans were recently emancipated slaves. The brief of the African-American churches and ministries respectfully reminded the Court that comparing the dilemmas of same-sex couples to the centuries of discrimination faced by Black Americans is a deceptive distortion of our country’s culture and history. As one pastor in the Coalition stated:
The disgraces in our nation’s history pertaining to the civil rights of Black Americans are unmatched. No other class of individuals, including individuals who are same-sex attracted, have ever been enslaved, or lawfully viewed not as human, but as property. Same-sex attracted individuals have never lawfully been forced to attend different schools, walk on separate public sidewalks, sit at the back of the bus, drink out of separate drinking fountains, denied their right to assemble, or denied their voting rights.
The legal history of these disparate classifications, i.e., immutable racial discrimination and same-sex attraction, is incongruent. Yet, many now understate this incongruence to manufacture and mandate a limitless (and therefore meaningless) concept of “marriage equality,”
To the pastors of the 25,000 churches and ministries, and to most Americans, the Court’s deliberate federalization and redefinition of marriage directly harms and threatens this sacred and foundational institution. There is no surer way to destroy an institution like marriage than to destroy it’s meaning. If “marriage” means whatever a political activist, or a politically unaccountable lawyer wearing a robe wants it to mean, it means nothing. If it has no fixed meaning, it is merely a vessel for an unelected judge’s will. It is a subterfuge for an imperial judiciary imposing its personal will on the citizenry. And as Montesquieu observed: “There is no greater tyranny than that which is perpetrated under the shield of law and in the name of justice.”
William Wagner is Distinguished Professor Emeritus (constitutional law) and previously served as a Federal Judge in the U.S. Courts, Legal Counsel at the U.S. Senate, and Senior Assistant United States Attorney in the Department of Justice. He co-authored the friend of the court brief filed on behalf of the 25,000 African-American churches and ministries.
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