Op-Ed

Religious liberty not superior to other constitutional rights

Americans are quick to denounce the intolerance of a Muslim theocracy. Nevertheless, numerous American Evangelicals would welcome a theocracy in the United States as long as it was a Christian theocracy.

Rowan County Clerk Kim Davis' supporters are only quick to condemn the Supreme Court decisions when they do not conform to their religious beliefs.

Attorney Phyllis Sower's column condemning the Supreme Court's same-sex marriage decision in Obergefell vs. Hodges is based more on her theology studies than on constitutional law. Her argument that approving gay marriage elevates homosexual rights over religious rights assumes that religious rights are superior to all other rights, thereby providing the mandatory starting point for court decisions.

Constitutional law might seem esoteric, but it constitutes the core of who we are as a nation, a nation ruled by law, not by the masses.

The court's power of judicial review began in 1796 with Hylton vs. U.S. and then seven years later with the better known case Marbury vs. Madison. Judicial review by the Supreme Court precludes the tyranny of the majority over any minority.

Four words carved on the front of the Supreme Court building, "Equal Justice for All," mean justice not only for Christians or heterosexuals, but for all without distinction.

Sower's column cites a dissenting opinion in Obergefell claiming in the Dred Scott decision "the court made the same horrible mistake — relying on its own concept of liberty instead of what the Constitution actually provides."

Dred Scott decided, applying the Constitution, that blacks were not citizens without rights, including the right to sue. If the court had used personal liberty in arriving at its decision, Dred Scott would have been freed. After the Civil War, to correct the effect of Article 1, Section 2 of the Constitution, the 13th, 14th and 15th Amendments were passed. In Obergefell, the majority relied on the 14th Amendment in reaching its decision.

Sower's claim that the decision violates states' rights is without legal merit.

In 1954, millions wanted racially segregated schools, arguing states' rights. The Supreme Court, in Brown vs. Board of Education, concluded states' rights cannot serve as the basis to justify discriminatory conduct and overturned the 1896 decision of Plessy vs. Ferguson, ending separate but equal. Obergefell rejects the unequal treatment of gay marriage.

Obergefell is the result of the legal evolution of individual freedom for sexual rights beginning with Griswold vs. Connecticut in 1965 striking down the criminalization of contraception usage by married couples; Loving v. Virginia in 1967, permitting interracial marriage; Eisenstadt vs. Baird, in 1972, contraception usage by non-married couples; and Lawrence vs. Texas in 2003, striking down the sodomy laws of Texas and 13 other states.

After each decision, nothing dangerous occurred — unless you consider expanded personal freedom and dignity dangerous.

Conservatives always argue that government should not interfere with business but approve government involvement with individual choice and sexual prefer ences. Why? Is it because conservatives are a never-ending cornucopia of hypocrisy?

The 2013 decision in United States vs. Windsor, striking down the Defense of Marriage Act, created the pathway for Obergefell. Once the Supreme Court's decision in Windsor involving federal law occurred, the Obergefell decision involving state law became inevitable.

Before Davis refused to issue marriage licenses she should have read the 2006 Supreme Court decision in Garcetti vs. Ceballos. In it, the court held that, "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe on any liberties the employee might have enjoyed as a private citizen."

In other words, public officeholders and employees voluntarily surrender some of their liberties when they accept their governmental positions. Garcetti involved First Amendment rights — speech rather than religion — but one right is not more sacred than the other, except for Christian theocrats.

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