AFA Activate Biblical Worldview Training for Every Believer
: M We live in dark times. Greed and corruption are everywhere, traditional values are in decline, the killing of innocent lives is celebrated, and people can't even define the word woman. As Christians, it's our job to shine God's light into the darkest corners of culture and to boldly stand for truth no matter the consequence. Many Christians want to make a difference, but they just don't know where to start. Introducing AFA Activate Biblical Worldview Training for Every Believer Activate is an in depth educational worldview training course designed to help Christians respond to some of the toughest issues of our day. Topics such as sanctity of human life.
: If we don't keep the main thing the main thing and stay on message, we're going to lose this fight. Marriage and Family Marriage is good because a good God designed it.
: Parents must embolden their kids to stand
: for the truth of who God is in a very hostile culture.
: Religious liberty and if we recede from
: the culture and we don't live out
: our faith, if we don't exercise our freedom of religion, we're going to lose it.
: And stewardship Capitalism promotes productivity while socialism stifles productivity. There are 18 powerful sessions built on the truth of God's Word and filled with practical tips for engaging our lost and hurting world. Each session comes with a worksheet to help cement the truths you learn and apply them to your daily life. But it's not enough to just learn biblical principles, you also must be willing to act on them. M that's why we've designed accountability challenges to help you step out of your comfort zone and and engage with the world around you. Challenges like volunteering at or donating items to a crisis pregnancy center, contacting your state representatives about an issue you're passionate about, or having a conversation with someone who disagrees with your worldview. The course also comes with a one year subscription to AFA Stream, giving you access to all of AFA's video resources. This content is packed with biblical truth and to help you build on the information learned in each session. AFA Activate is perfect for individuals or couples who want to work at their own pace, but it can also be used by small groups or Sunday school classes who want to work through the content together. After completing the entire course, graduates will be given an opportunity to participate in a special commissioning ceremony at our headquarters in Tupelo, Mississippi and celebrate with our team at afa.
American Family Association has three divisions to help voters and government officials
are you ready to make a difference? It's time to take a stand. AFA Activate available now at activate.aca.net
Walker Wildmon: AFA Action is the governmental affairs affiliate of American Family Association. As part of our mission to inform and mobilize voters and government officials, AFA Action has three divisions designed to address specific facets of our country's needs. These three divisions are the center for Government Renewal, iVoterGuide and the center for Judicial Renewal.
Dr. Jameson Taylor: At the center for Government Renewal, our goal is to advance biblical and constitutional principles. We are building a movement to defend the rights of families and people of faith. We are passing innovative legislation in the states pushing back against Washington D.C. and equipping leaders for the fight. With your help, we can build a brighter future for our children and our country.
Debbie Wuthow: IVoterguide is known for its accuracy and integrity in researching and evaluating candidates on your ballot so that faith based voters like you can be good stewards of your citizenship and vote for candidates that share your values. Thousands of candidates, from president and Congress to state legislatures and even your local school board, are evaluated based on their positions on issues like the right to life, religious liberty, national defense, the economy and border security. Ivoterguide helps you vote wisely.
Phillip Jauregui: At the center for Judicial Renewal, we keep tabs on federal judges so that we're fully prepared to hand solid recommendations to the president in the event that a Supreme Court seat opens up. We research and rank prospective judges According to these 10 principles of a constitutional judge. Essentially, we look for judges with the best, long term, demonstrable record of commitment to the constitutional role of judges, which is to decide cases according to the original meaning of the Constitution and legislative text, and to never legislate from the bench.
Walker Wildmon: Each of these departments play a crucial role in fulfilling AFA Action's vision to see our country successfully preserving life, liberty and the ability to pursue happiness. To learn more and to get involved, go to afaaction.net. Hello, everybody. Welcome to this episode of AFA at Home. This is going to be episode eight, Strategies for Restoring Matrimony and Morality at the State Level. Just to give you a little backgrounder. For much of America's history, it has been universally acknowledged that religion and morality are necessary for good government. Beginning in the mid 20th century, this changed, accelerated by a series of Supreme Court rulings that significantly handicapped the ability of the state or states to prohibit things like pornography, abortion and other deviant behavior. But this panel today, which I'll introduce, will explore different strategies aimed at restoring this state authority to regulate such immoral behavior, specifically regarding marriage and morality.
Walker Wildman introduces our panel of experts on various topics
So to introduce our panel today, we have with us, starting from, your left, Jeff Schaeffer. I'm sorry. Jeff's here. David's here. we've got David Upham with us. David's, associate professor of Law at St. Thomas University College of Law. Trey Dellinger is one of my colleagues here. He's a senior legal fellow with AFA Action, which is our 5014-oh, government affairs affiliate, obviously. I'm Walker Wildmon. I'm your host today. And then Jeff, Schaefer is an attorney and director at the Hell Institute. these men have been with us prior at other events and are excellent, minds on these different topics that we're going to talk about today.
Every major issue in our country lands at the Supreme Court
So, to start, Trey, I think the Supreme Court seems to be the common denominator when it comes to, you know, legal rulings and precedent and debates. Over the last at least 15 to 20 years, the Supreme Court, it seems like every major issue in our country lands at the Supreme Court, and they end up being kind of the arbiter of what we're going to do as a nation, for better or worse. Right. but tell us how the Supreme Court got so instrumental, and involved in these issues, such as what is marriage? Right, right.
Trey Dellinger: Well, I think, Walker, you have to kind of go back to. Go all the way back to the founding era. in the founding era, the founding generation, as you alluded to in your opening comments, they understood that our Constitution and laws are only really fit for a moral and religious people. And for about the first 150 years or so of the country's life, the Supreme Court of the United largely stayed out of the cultural issues. at that time, at the founding. At the time of the founding, and even if you go back to English common law before that, the law and our legal institutions were dedicated to, enforcing moral principles and, establishing a moral foundation for society and placing moral limits on behavior. because the founders, again, understood that, that freedom in a free society under constitutional government is not licensed to engage in any behavior. It's a restriction against arbitrary rule. But that system only works when you have moral limitations, and the law had a key role in that. So if you go back to the, If you go back to the time of the founding of the country and you trace, you know, the patterns of our laws. As you go through the 1800s, for example, what you find is that, every state had laws that were dedicated to upholding moral principles and enforcing traditional requirements around marriage and family, for example, you had, Each state had a section of its code that was dedicated to crimes against Public decency, for example, lewd and immoral and indecent behavior in public was a crime in most every state. as you go further into the late 19th, century and into the early 20th century, you saw laws against cross dressing, for example, that were pervasive in U.S. cities. there were legal requirements for marriage and family. marriage itself was a particular definition that reflected Judeo Christian principles. Marriage of one man and one woman with, legal enforceable duties towards their children. And so this was not, just a contractual arrangement or arrangement of convenience or what would reflect individual choices. Marriage had a structure that reflected a Judeo Christian tradition and that was enforced in law. And you saw the law's, role in enforcing and building up morality across, a number of dimensions of the culture. We, have this idea now that the kind of cultural decay that we see in our society is this sort of bottom up spontaneous process that the culture changes and then politics and government respond to that. We have this idea that, politics and policy are downstream from culture. But if you look back at history, that's not really accurate really. in the deep history of our country, law acted as a sort of moral stabilizer, kind of a, defense mechanism that prevented cultural degeneration. The founders understood this. The founding generation understood that human societies are susceptible to, moral decay. And they viewed the law as a stabilizer. They knew that these sort of ways, waves of immoral behavior would pass through the popular culture, but then they would break up against the law. The law would provide a barrier. They would break up against the law like waves crashing on the shore. And the law was a bulwark and a barrier against this kind of moral decay. Which is a completely opposite idea to the kind of modern and postmodern idea of how law should function. So, I'll give you some concrete examples of that. if you look, I mentioned laws against loose and indecent behavior, at English Common law and its tradition was inherited by the American colonies and later the American states. Lewd and indecent behavior in public was anything that would corrupt the morals of children. So the public square was much more friendly and had a much more moral atmosphere that was friendly to families and children. Their view of religion was also far different. The founding generation understood that religion was a necessary support for morality. You know, President Washington and his farewell address warned us against the concept that you could have m morality without religion. Most people now, think about this. They've been, trained to think that the Constitution includes separation of church and state. Well at the founding that was not the concept of the First Amendment. The First Amendment establishment clause was never applied against the state for the large, early history of the country. The Establishment clause was not even applied against the states until the Everson case in the 1940s. And in that case, for the first time, the US Supreme Court makes a major change. They quote Jefferson's letter to the Danbury Baptist association and say that the establishment clause was intended to erect a wall of separation between church and state, which had never been done before, had never been recognized before, was completely really at odds with constitutional history. And so then you quickly see case, law develop out of the Supreme Court that was hostile to relig. In the early 1960s you saw the Engel and Shemp decisions that effectively removed prayer and Bible reading from public schools. Before that, for most of the history of the country, prayer and Bible reading had been pervasive in the public schools, matter of fact, as an example.
Walker Wildmon: And in Congress.
Trey Dellinger: And in Congress, yeah, you saw opening of public institutions, courts, legislative assemblies would be opened with prayer. In 1869 the National Teachers association, which was the forerunner of today's National Education education association, the NEA, which is a hard left organization. In 1869 the National Teachers association, advocated Bible reading in all the public schools of the nation. So that gives you an idea of how pervasive friendliness towards religion was in the public square. Then you fast forward to the Everson decision in the 40s and the Engel and Shemp decisions in the early 1960s. And that effectively removes prayer and organized religious engagement out of the public schools. Then quickly, in the early 1970s you had the Lemon test which said that the Supreme Court applied what's called the Lemon test in the Lemon case, which said that the government was not supposed to encourage or endorse religion. You began to see this hostility to religion that then developed in the court into rulings which were hostile to morality more broadly. You saw in 1961 you had 1962, excuse me, you had the Griswold case which created a right to privacy within marriage to make intimate personal decisions within marriage. Quickly that was extended to a right for individual personal autonomy in the Eisenstadt case out of the Supreme Court in 63 which created a right to contraceptives for individuals that were not married. So you see then really a real hostility to moral principles in the law that led directly in in 19, 73 to the Roe vs. Wade decision that this right to personal autonomy included a right even for a mother to take the life of her child. Now the right to personal autonomy, they read that into the Constitution and that trumps the traditional moral judgments. That principle was then picked up and goes into 1992, when we had the Planned Parenthood versus Casey case where the court said that the Constitution includes a right for every person to define their own concept of existence and of the meaning of life. That in turn led in 2003 to the Lawrence vs Texas case where the Supreme Court said that moral judgments were no longer a valid constitutional basis for law. So you see how we go from at the founding. In the founding generation, the laws and legal institutions were intended to enforce and support traditional Judeo Christian morals. Now you fast forward to the early 2000s. The law is used as a weapon to tear down and deconstruct traditional traditional moral principles and to make the public square hostile to religion and morality. That leads directly to the Obergefell decision that constitutionalized same sex marriage. So you see how this was not a bottom up spontaneous change in the culture. this was a culture that was dedicated to religious and moral Judeo Christian principles. And you see pressure from the top, from the Supreme Court that forcibly changes the direction of the culture into an amoral direction.
The Supreme Court has become this place where it just welds a lot of power
Walker Wildmon: You know the one thing I want to ask you before we move on to David and Jeff. The Supreme Court has become this place where it just welds a lot of power. Whether it's constitutional power or not is debatable. But back in the founding of our country, I forgot which founding father it was. Early American leader. But the Supreme Court wasn't this noble, prestigious position. The Supreme Court was actually kind of boring, because I mean they didn't even have a building for many, many decades or centuries. they didn't even have their own, you know, Supreme Court building and all this prestige that it comes with today. But when did the Supreme Court either insert itself into this deciding everything, right? I mean almost everything goes. There's. And we just assume that we just got to see what the Supreme Court says. But the founders didn't. Correct me if I'm wrong. The founders didn't intend the Supreme Court to be kind of the one stop shop on being the arbiter of every single legal debate and moral debate in America.
Trey Dellinger: Did they? Well, I think as you mentioned, you saw that grow over time. And David and Jeff are of course much more eminent scholars in this area than I. But a lot of this development, I think came with the application of the 14th amendment against the states after the end of the Civil War, you saw some inklings of it with the Dred Scott decision, where the Supreme Court began to read substantive rights into the Constitution that weren't in the constitutional text. but it really blew up after, there was some activity in the early, 20th century, but it really blew up in the, post World War II period in the 1960s and 1970s, where the Supreme Court, as I alluded to in the cases, the cases that took prayer out of public schools, cases like Roe v. Wade, Eisenstadt and Griswold, where they really declared this right to privacy and personal autonomy, that ultimately, that was in the 1960s and 70s, where they really began to tear down the moral content of the law. And ultimately they declared blatantly in Lawrence v. Texas in the early 2000s, that morality is not a legitimate basis for law, leading to the Obergefell decision. So you saw, a real. It's kind of like the old story where the guy was asked, how did you go bankrupt? Well, gradually, then, all at once, they. Gradually, the Supreme Court increased its influence more and more. And then you saw these kind of very discreet sea change is where they really amassed a lot of cultural power to themselves.
Walker Wildmon: David.
Give us kind of what the religious and historical definition of marriage is
the one institution that we want to talk about today when it comes to, you know, the legal world is obviously marriage. 2015 is a flashpoint where the Supreme Court decides it's going to tell the whole country. Right. What they, what they think marriage is or, what states can do in that regard. But go right pre2015, let's go pre America. Let's go back to God's created order with the marriage union. Give us kind of what the religious and historical definition of marriage is, and then we can start talking about how the Supreme Court inserted the stuff.
David Upham: Sure. I'm actually going to raise you. Let's go back even before the revelation that we now have in Genesis, human beings form marriages. Even before the gospel is proclaimed, even before, there is. I'm going to speak of three marriages. And frequently we say there are two sides. It's actually important to understand the three sides, to understand the lay of the land. Jack and Jill go up the hill, and, Jack says, would you like to hang out? And Jill says, yeah, but, you know, babies might happen. And Jack says, listen, we'll agree that we'll take care of the children that might result. And we know that's a lot of work. Jack and Jill agree to that. That is something that's an anthropological fact of marriage. It's a very difficult thing to do, but it's one of the easiest associations to understand. And the whole human race comes from many generations. And of course, some of our ancestry is not all that pretty. But a lot of it did involve that. Hey, how's it going? And forming that agreement and carrying it out. it's necessarily a free association. It's necessarily male, female. it's necessarily indefinite because children have indefinite needs. You never know when a child is going to get sick. And of course, if you want to raise your child to be like yourself, you raise them so they can be parents too. Which, in case you have an eye toward grandchildren, actually. But the whole association is, We call it marriage in the English language. It's a little bit of an obscure word. Where Mary comes from. I'm going to prefer the word matrimony. Not only because it's clear where it's from, but also because it helps us distinguish this marriage thing, which is now getting rather distorted. matrimonium, the monium is the duty mater. It's this. We're going to jointly deal with the work. The husband is going to be a joint partner in the work of the mother, show up not just for the conception, but also the reception and education of offspring. it was not a controversial thing to call that marriage until very recently. And, it was not something that in sociology, anthropology, people would have difficulty. And it was largely, almost entirely a cultural universal, like a dinner party. Human beings do these sorts of things. Christianity, comes along and does not distort nature, but takes it and then elevates it. First by revelation. We learn that this thing that human beings do, that's actually what God wants them to do. It's not just a fact. in fact, it was so from the beginning. so Genesis, when it concludes, and thus it shall be that a man shall leave his father and mother. I think that's primarily an explanation, not just saying, why do human beings do this? Well, because God wanted it that way. it's a good thing. And it's before the Fall that it happens. It's not the Fall that creates marriage. the Fall distorts marriage. But, secondly, Christianity gets rather strict. They say, Jack and Jill, that's the only place for hanging out. You're not allowed to have anything on the side. Third, monogamy. Oh, Christianity fought thousands of years of culture war against polygamy. only one wife at a time. And we know that from Scripture, because it's in the Old Testament, it's a phenomenon. And it's something that Christianity really says, okay, the season is over and our Lord Jesus elevates marriage back to its natural status. M. It's not just indefinite, but it's indissoluble except for very grave cause, if at all. And that's a dispute among Christians. But all Christians agree that, matrimony certainly, among Christians is something that is for life and maybe something very violent, something very bad. No casual divorce here. and then lastly, of course in Christianity, it's a symbol, a sign of Christ's love for the church. So Christianity does a lot of things to marriage. It doesn't distort its sort of natural or pre revelation definition, but it makes it, it. It's divinely instituted, a holy union, the holiest state, and it should be monogamy. as Trey rightly pointed out, the American common law and our tradition up until really, I'd say up to World War I, virtually every legal authority, endorsed the Judeo Christian idea of matrimony. the Supreme Court, over 30 years, by my count, 24 justices, between 1884 and 1917, join unanimously in saying that the most important law, the most important law is the law that establishes the family on the basis of the union of one man and one woman in the holy estate of matrimony. So not only natural matrimony, but one man, one woman. No, you can't have two wives at a time. And it's a holy estate, not just a natural phenomenon. In a Supreme court case in 1908, Justice Harlan said this reflects the nearly, we didn't say entirely nearly unanimous view of the American people, after World War I. That never is found, endorsed in the Supreme Court cases and in state court cases vaguely. The changes, I would say, really go back to the 1920s as a huge cultural change in our country. When the elites begin the process where they get, they in some sense turn against and then later on they start exercising power to push it down. But the discourse among our elites in the universities and in the cities in the 1920s, should be familiar to us because now it's pretty much our culture.
Walker Wildmon: That's interesting.
Just spending some time with judicial decisions can change language
Let me interrupt you, David. That's interesting because when I think about this downward spiral that we're in, I think maybe sexual revolution, 1960s, obviously well before I'm around, but definitely don't go back that far. And I haven't heard many people, if any Trace it back that far. What makes you feel confident enough to go back into the 20s and 30s?
David Upham: Just spending some time with judicial decisions and noticing the ways in which they subtly change language. I'll give one example. in 1942 in the Williams case, this is, a predecessor to all of this Williams versus North Carolina. The Supreme Court overturned its precedents on full faith and credit. And they effectively said that, Any state that adopts the easiest divorce, like Nevada, will in fact be the divorce law for the whole country. Because if you can go from one state, get divorce there and then go back. And North Carolina is going to have to accept that divorce. And that was a judicial decision authored by Justice William Douglas, who authored Griswold 20 years later and was, on the Romajaro party.
Trey Dellinger: they generally regarded as one of the most liberal Supreme Court justices ever.
David Upham: So there was definitely. And there's just so much more to say. I would just say in terms of popular culture. There's a song called, Anything Goes written by Cole porter in the 1920s. which is a pretty strong discussion of what's going on in NewSong York and how now anything goes. And It's both comical, but it's also an illustration, at least in some circles, about just as many things. I couldn't even. Actually, I wouldn't even say it on the program because it would be a little PG13. And I don't want to. So you have the second. They have that second view of marriage. And there's a third view which is actually old, but, Reaches kind of a crescendo of power in America in the mid 20th century. And that's the idea of the romantic partnership. Romance, as the word indicates, comes from a certain part of the world deep in Western Christendom in the late Middle Ages. And For those who are disposed to really nerd out, There's a book called. By Denis de Rougemont, written in the 30s, called Love and the Western World that I highly recommend to anybody who wants to wade through it. Because, He was a Swiss scholar, a Christian, describing the history of what we call romance. And he says from the beginning was always anti marriage. It was a rival to marriage. The romantic story is about transcendent death, that is to say, adultery and death. Romeo, and Juliet, they're supposed to die. That's the point of the story. And, It's a rival theology. It speaks about, well, when you die, you have a soulmate in Heaven. Okay. And, what you should be doing is escaping from the world. It's very complicated stuff. But all the stuff that we see that's still so ever present in our culture. Not as much as it used to be about soulmates forever and ever. M. Is this about children? I mean, it's not. You know, the Hallmark movies don't end in childbirth. They end in a transcendent kiss.
Trey Dellinger: It's more about feelings than stable social institutions.
Walker Wildmon: Right.
David Upham: Yeah, that's right. It's not about stable social institutions. And this is important.
We should distinguish between matrimony and romantic partnership
So that gets. That ultimately becomes the basis of Obergefell. We know this because in Griswold, they have a definition of marriage. You can read it there. And they don't talk about the holy estate of matrimony. They say marriage is a coming together for better or for worse. Sounds kind of Christian. Ish. And then they say it's not for social or political projects, but for something noble. Our entire legal tradition would have said, what do you mean it's not for. So that's the first social project. In fact, it's the foundation of society is the association between male and female bring forth. And then the political community is built around that on top of that. But it's really magic, carpet ride. And as I say, that magic carpet ride is no place for kids. They tend to fall off. matrimony is, of course, divinely instituted, and it points to, the divine. But it's about earth and babies and houses. The word husband bound to a house. not flying off in the sky, not having a transcendent experience. and this is important to understand Urbanfell. We often say that's a result of secularism. If you read the Obergefell decision, it's an alternative, universe. And there's a lot about transcendence. And, it's not actually hard hitting, earthbound facts. And then there's Christians over here praying in the corner. There's a different prayer being said there. And it's a prayer that's not, that's not matrimony. And those are the sort of the three things that are going on in our culture. and it's important to distinguish those things. I'm not against. I like Hallmark movies. Okay. And there's something. And I like a lot of the.
Walker Wildmon: They do all end the same, though. Yeah, they.
David Upham: But we should. We should not think that we're getting. We should understand that whatever being educated, there is not an education in matrimony, let alone Christian matrimony. And that obscurity made it very difficult for us, ah, who are Christians, many of whom, it turns out, are the biggest consumers of those sorts of movies, to be able to answer slogans like love is love and, because we don' twe're not, we have a certain obscurity in our own minds about what the distinction between matrimony, Christian matrimony, and this romantic partnership idea that has always been something of a rival. And really, I think my opinion, and de Rougemont says this as well, is one of the main causes of. Even in the 30s, he says divorce is exploding. And he wouldn't be. I mean what happened in the 60s, 70s was crazy. But even in the 30s, by American traditional standards, the 1920s, 30s, 40s already shows an extreme high level of divorce relative to, the first 300 years of our republic from the Puritans through World War I.
Walker Wildmon: Fascinating. I never viewed romance like that, but that's very, that makes a lot of sense. It's become this kind of touchy feely, self centered approach to the relationship up to the union, as opposed to a selfless approach, on others and their needs. Jeff I want to, address kind of this. I poke fun at my libertarian friends, which we probably agree on a lot. But when it comes to, you know, what's it matter what the Supreme Court says? Right. Or what's it matter what a state says about matrimony or marriage? it really does matter.
The conversation shifted post Obergfell on same sex marriage
And so talk about the why people should care about this and what the government's position is on it.
Jeff Chamblee: Yes. This is not something that we can simply give the back of the hand to. It's no small thing when our highest levels of government, dictate are redefining such fundamental institutions as what marriage is in the land. This is, we might say the law taking a position on taking a posture toward the meaning and significance of human being in its, familial relationality, which is normative for what a person is. Moreover, it implicates what the law itself is. That is to say, does the law recognize that there is a reality external to itself to which it must defer, or does it simply get to just make things up as it goes along? you know, one of the things that, I'll mention this, carefully. There's been a substantial emphasis on religious liberty questions on the backside of Obergefell, which I think is altogether legitimate. Obviously a lot of resources properly ought to be directed toward shoring up the prerogatives of Individuals of conscientious objection that do not wish to be co opted or coerced into participating in evil on the backside of this marriage redefinition. all very good, an important undertaking. Nevertheless, I would like to say that my concern is that when our exclusive concern is on my prerogative to do what I wish to do, it's actually doing something less noble, which is serving as something of a distraction. it's deflecting attention from the fact that a far more consequential development has taken place. There's something more fundamental, radical, more ah, sinister that has been inaugurated by Obergefell than simply an elimination of certain choices of traditionalists. You see, what Obergefell, and we might say what the law embracing this thing called same sex marriage is, is essentially a determination that there is no public and institutional significance to persons being male and female. which is not only to kind of revolutionize human anthropology, it's likewise, to revolutionize the law itself. It no longer is deferring to uninterrupted human commitments through all civilizations since the beginning of time, to the very structure of the human body, that which is inscribed on our faces. All of these things testify to particular truths. And the law is essentially saying we don't recognize any of that, we do what we wish to do. Which is to say that the natural family in such a condition no longer has a claim to any sort of independence, autonomy, authority within its own jurisdiction. Because that would suggest that there is a reality and authority outside of what the law says. which is precisely what this same sex marriage construct denies. Which is we all get to make it up as we go along. Which essentially means the law is uninhibited in doing whatever it wishes to do. Which is a nice thing to say to your libertarian friends. Which is, this is fundamentally a totalitarian, statist, totalist undertaking because it does not recognize, accommodate, truths that are independent of the wishes of those who are wielding power. And when that becomes the operable principle, everything is on the table for state action. And you have now been deprived of any of your claims to liberty that in the past you would have been able to appeal to.
Walker Wildmon: Yeah, this, this. I talk about how quickly the conversation shifted post Obergfell. And I've pointed out multiple times that number one, every talking point that was used to get the American people on board with, to the degree that they did, you know, the Supreme Court creating this free for all on marriage, and opening Pandora's box that has broad implications that you just alluded to within six months, 12 months at the most. I have to look back at the specific timing we went from live and let live. You know, this doesn't affect you Christians, right? You'll still have your First Amendment, even though now they're saying you don't have it. But, North Carolina, they were wanting boys in girls bathrooms. Remember The House Bill 2, North Carolina bathroom debate, the weak Republican governor there. that was a huge, you know, cultural flashpoint that was within 12 months of our Burke felt. So we went from homosexuality debates about whether two men can pretend that they're married to, we want dudes in girls dressing rooms, like. And then now we're talking about transgenderism and defined human sexual, biology.
Jeff Chamblee: Yes. You know, it's interesting to me that the Vanity Fair magazine cover with Bruce Jenner gussied up as a woman half his age, appeared on the scene within hours of the Obergefell decision being published. There was a kind of proper temporal association between those two. What you alluded to as flashpoints. the court evidently, impliedly authorized the transgender crusade by what it did in Obergefell. If male and female do not matter in the very place that it has mattered most, why should it matter anywhere else? So I do think that, Obergefell really did. Was the push, the launch. obviously this was in development over a period of time, but there was a kind of credence that was now present that hadn't been prior to Obergefell. And it would be appropriate for us, as we grow weary of having our credulity strained by this transgender proposal, that we look and see that it didn't arise independently, we should be giving a critical eye to Obergefell as well. If we don't like what's going on in the trans crusade.
Walker Wildmon: Absolutely. Absolutely.
Trey Dellinger: The roots of it go all the way back to this concept of right to constitutional personal autonomy that we saw in the Griswold and Eisenstock cases through Roe. And then, really, you see the lingo of the transgender movement in the Planned Parenthood versus case passage that the Constitution guarantees a right for every person to define their own concept of existence and of the meaning of life. What does that sound like? Sounds a lot like, gender ideology, where you can wake up on a different day and decide whether today I feel like I'm male or female. We see it's full culmination in Obergefell. It's interesting because, as I spoke of traditionally, the law was dedicated to a Jewish, traditional Judeo, Christian moral ethic into reinforcing that. Then you see in this course, from, Lawrence v. Texas, Casey, and then Lawrence v. Texas and Obergefell, where the law says objective moral standards, divine law and natural law, objective moral standards, like Jeff is referring to, the Supreme Court says, now those, we're defining those as invidious, discrimination, moral standards, equal, unlawful discrimination. And then you saw the move towards the culture, the LGBTQ culture demanded affirmation. Now you go from, traditional moral standards, equal discrimination now, to anything that, denies me my truth or anything that discriminates against my personal individual choices. Now that constitutes immorality. So you saw the courts Engineer this complete 180 degree flip where you went from the legal system and our institutions enforced traditional morality to now they're dedicated to, blocking and deconstructing traditional morality.
Jeff Chamblee: Can I put my oar in here real quick? I was interested and rather appreciated the way that you designed your comments earlier, initiating with Washington's observation of this indispensable connection between the religious and the moral. We might say the theological and the moral must stick together. And that was recognized for quite a period of time. And then in the 20th century, as you detailed at some length, the courts were largely saying we have to get rid of the theological, which of course then leaves the moral sitting all by itself, which then permitted its, decrepitude, you know, the decline that you were speaking of as well. but David made the point in his comments that actually Obergefell has something of a counter theology resident within it. So there is a way that we don't ultimately escape, having to have this transcendent kind of source that we're pulling from in order to explain things. M. But your point about how things have altered to such an extent that now the new morality is in play. And I would like to say that morality is associated with the new theology that is in play. So what the courts ultimately did was not to get rid of the theological or the religious. It was to get rid of Christianity so as to be able to replace it with an alternative, an absurd and preposterous one, but nevertheless one that serves the same kind of function. Now, that point of transition, I don't know where to identify it, but it certainly has taken a while to come into its own. But here we are in the 21st century facing just spectacular absurdities in the world of, we might say, moral consideration. for whatever that's worth.
Everyone has a right to define their own existence
David Upham: If I can jump in, Trey was Talking about the relationship between Cayce and then the new intolerant. In some sense, it's not a contradiction. Because if you say everyone has a right to define their own existence, and there's someone like me saying, I have no such right. I have a duty to see and to obey what I can know by reason, what I can know by revelation. I'm not doing what I feel. and I'm not deciding to create the universe in my own image. That's exactly what I'm not allowed to do. And if I do that by my word and example, I am contradicting, Justice Kennedy. I don't conceive of my liberty as a right to do what I want, but to worship God according to the dictates of my conscience. so that's very important. And secondly, insofar as Romans one has anything to say about it, the problem with the human being who says there is no creator, every time you have all evidence of either natural or revealed standards of what is right and wrong is something hateful to them. Them, it's either a contradiction of their claim because there is in fact a creator who's given ord rules, or, it's just some sort of, interference with their freedom.
Trey Dellinger: Right.
David Upham: And similarly with Obergefell, it's not surprising if you say I can read the Constitution, truly read the actual Constitution, to compel all the states to grant the status, the title and rights of marriage, why can't the states ask a baker to do the same? I mean, the Constitution can be read the former, certainly the latter as well. Baker versus Estate versus all the states of the Union and five judges on the court. so it kind of. There is an integrity. And one last thing about Obergefell, and Jeff pointed to this. Once you have this kind of, Once people are in fact aware that the court is engaged in some kind of daring thing of saying, we can redefine marriage, we can redefine a natural human institution. they're flush with victory, and then they go on. What's our next conquest? Well, we can redefine male and female. I mean, it's actually. It's the next town you conquer. It's obvious.
Trey Dellinger: Once there's no longer any objective reality and everything is just a construct, they're either. There are no real limits at that point.
The only figure or authority that can counter that is the states
Walker Wildmon: David, I want to talk. You mentioned the states. I want to talk about what states can do, because we've obviously identified the problem. We have a court, and this isn't all on the Supreme Court, but they've been a major bad actor. when you talk about the history we just covered, but our founders did not intend under any circumstance for a court, any court, to have the level of power that the Supreme Court has assumed. but the only figure or authority that can counter that is the states. When you look at our founding, so what can states do to counteract this upending of one of the world's longest standing institutions?
David Upham: well, to a certain extent, just the disintegration, the Obergefell, partly induced by Obergefell, the decline of the prestige of our central institutions, makes those institutions comparatively weak. And, in the providence of God, against all my expectations, since Obergefell, the current majority of the Supreme Court is most inclined or least hostile to, what I would call, recognizable constitutional interpretation. I'm being very. They seem to be less insane. In fact, I wouldn't say. And, they're going to. And they're likely to be, they're likely to be more tolerant of states, those states that can and will do, something substantial. And one of the things that is, you know, in all things you want to say, okay, what type of flour and oil do you have in your cabinet? Just find out what God has given you. Among the things we have, of course, there's an enormous amount of freedom and wealth in this country, including among Christians. But there's significant population, disproportions. anytime you do these states, Americans believe, well, if you compare South Dakota or Mississippi or Arkansas, you're not going to see anything like the same numbers as you see in Nevada or California. So take very seriously our federal system and look at the states where a lot of progress can be made, as we saw, with respect to the protection of the unborn and the Dobbs decision that came from a red state, exercising, constitutional, authority. So there's a lot that can be done at the state level.
Walker Wildmon: Jeff, you and I have talked in previous, you know, interactions about what Obergefell did and didn't do. obviously the layman's explanation, if you were to ask people on the street, is, well, Obergefell legalized same sex marriage. Right? That would just be what they say. And maybe it did, maybe it didn't. But tell us, what did the Supreme Court opinion itself, compel the states to do, authorize the states to do, or authorize the states not to do?
David Upham: To do
Jeff Chamblee: that invites, a kind of answer that would take a very long period of time at Some level of complexity. So, ah, before answering, I'll just say very quickly, I did write an introductory essay on this kind of question called what Obergefell did not and could not do, which is out there on the web, for a somewhat more, elaborate presentation, that would answer your question. There are a number of things that can be said. from a very long list, I'll just select a few. Excuse me. one thing that we might say is there has been an extraordinary, accommodation of that opinion by states that never should have happened. I'm talking conservative red States have laid down flat before that opinion as if it accomplished this remarkable overhaul of their ancient statutory systems of family law altogether inappropriate. And it really is a remarkable thing that these conservative, governments at the state level have not kind of insisted on reading Obergefell for the very small thing that it did. Now that's understandable for this reason and for the reasons we've been talking about in this conversation. Same sex marriage as an idea is uncontainably vicious and knocks down everything in its path. So as a cultural accomplishment, Obergefell ruins everything. It really, it implies the elimination of male, female, and really all of the structures absolutely central to a community.
Walker Wildmon: So it's the furthest thing from a narrowly tailored opinion.
Jeff Chamblee: That's right. So at least as a cultural accomplishment that our highest judicial tribunal would announce such a thing is, as I say, uncontainable. On the other hand, what Obergefell was
Trey Dellinger: as a legal decision, as was a
Jeff Chamblee: legal decision, that is to say it is now circumscribed by Article 3 of the Constitution. What can a federal court do? What can a Supreme Court do? And the authority that the Constitution gives to the Supreme Court and other courts is to resolve cases or controversies between parties. It's resolved. It's not a legislature. It's not making law for the nation. It's announcing a disposition to a conflict that's in the court in front of it. And essentially what the court did there was, say, those states that are now before us insofar as they have a licensing scheme for marriage and it doesn't include same sex couples in its provision, well, then it's unconstitutional. That is to say, the court found a fundamental right to have a state marriage license if there is such a system in the first place. That's all the court did. Now, of course, in the process, Justice Kennedy went on all of these different, traipses through the prairie on all kinds of things that he finds interesting. That's not the law of the case. The ruling is the law of the case, and it applies just to the parties that were in favor front of the court. Nevertheless, what courts have done. Excuse me, what states have done is essentially read Obergefell as having revamped or kind of accomplished an omnibus, rewriting of all of their state family law, not just with respect to marriage, but as to questions of child custody, birth certificates, adoption, this whole range of things that the Court never ruled on. So what I would like to say is really one of the things that states ought to be doing is giving careful attention to what actually can be said was done by the court and how that interacts with a, ah, whole other range of jurisprudence, as well as constitutional standards that would hem it in. So, for instance, the Supreme Court's due process jurisprudence that has never been touched by the Court in Obergefeller, after, gives particular cognizance to the natural relation of mother to child and father to child. Those continue to be things that the states in their policy can recognize. The courts have done nothing to get rid of that. Certainly Obergefell did not. there is a. We might say, and this starts to get lawyer nerdy. but jurisdictional limitations on federal courts. What can they command states to do? They simply cannot say, now go make a statute to conform with what I want. That's just not within the power of a court. So there are lots of ways in which we could say Obergefell only did this on the legal level, even though on the cultural level it accomplished kind of a worldview change as far as the law is concerned. There is a whole lot of arguments that are resident in state Attorney General's offices. And what I would urge them to do is to defend the laws that are in existence at the state. There's no reason.
Walker Wildmon: There's a lot.
Jeff Chamblee: There's a lot there, and they ought to stick with it rather than simply capitulating to what they imagine the Court might do later if confronted with litigation over this question. David alluded to the Dobbs case, which came down. We have a Supreme Court now. I don't know how, anxious they are to be repairing things, but they're not going to break more things, I think. And what happened in the Dobbs decision was to undercut the justification, the principal one, that Justice Kennedy offered in Obergefell. there was an equality component as well that I think was quite weak, but it's on, shaky ground. The Obergefell case.
Trey Dellinger: It's hard for Obergefell and Dobbs to live in the Same universe.
Jeff Chamblee: That's right.
Trey Dellinger: They're fundamentally in conflict.
Jeff Chamblee: I just think there's a whole range of possibility resident to, state officials that have the spine to insist on, we're going to organize our communities in a way that preserves the integrity of marriage and family within our jurisdiction. That has been the exclusive prerogative of states since the founding. So for them to so readily give up on that authority is really a remarkable thing, and there's no good reason for them to have done so.
Walker Wildmon: Yeah. And so state lawmakers, governors, attorney general, anybody listening, or if you have connections to such. This. This, gives state, elected officials no excuse to say, well, we've got to wait till, Obergefell is overturned like Dobbs, before we can start kind of meddling in this again.
Trey Dellinger: Right.
Walker Wildmon: To your point, there's so much that can be done, positive at the state level, even if Obergefell were to stay into place.
Jeff Chamblee: That's right.
David Upham: to counter this, can I just jump in and make a plug? But within a month or so, I'll have an opportunity article that will be available online called Plowing Around Obergefell that will be very consonant with Jeff's remarks.
The Notre Dame Law Review will publish a rebuttal to the Obergefell decision
so Notre Dame Law Review will be publishing that hopefully within a month. And I'll be elaborating also on some of these topics.
Jeff Chamblee: You know, the shoring up of, all of these important natural relationships that emerge from the marital union. we might say those are all adjacencies to the Obergefell marriage, decision. But, of course, Justice Kennedy, in his opinion, is scratching his head and saying, I can't see anything important about male and female husband and wife. Of course we can. and states can. And so long as states continue to elevate those natural relationships in the law, it is a continuous rebuttal of the Obergefell decision. So as we're working on these, we may call legal adjacencies, it is, in effect, to be overrunning the logic of Obergefell itself, which I think ultimately will fall. But there are processes to get there.
Walker Wildmon: The more we talk, the worse Oberg gets, because. And these are supposed to be the most intellectual people in the country at the Supreme Court deciding on this. You would think that they would have thought through the implications of the ruling. But the media made this like a romance discussion or a. You know, it was the media and even your legal commentators did not go into the depth that we are about their broad applications of this ruling. they just said, oh, it's about two adults you know, just doing whatever they want to do. Way more broad than that.
Jeff Chamblee: You know, it intrigues me to look back on some of the commentary that came out immediately after the Obergefell, decision was announced. Even those who supported the same sex marriage idea in policy recognized that Obergefell was a absurd presentation on that point. I'll not kind of diminish Justice Kennedy too much, by reciting some of the things that were said about his opinion. But I often say it really is sophomoric bilge. What emerged. This is not careful judicial reasoning that was behind all of this. It was an embarrassing spectacle and continues to be an embarrassment to the Supreme Court. I have, hopes that, courts, governments across the nation will really begin to look seriously at it and see that it's not really even C minus work in high school creative writing. there is, I often say, not a paragraph in that opinion that I do not wish to light on fire for some very good reason. but that is the nature of this undertaking and accomplishment, I suppose, by the Supreme Court. And we should, not assign to it a kind of significant, beyond what its merits call for.
Religion and morality have become toxic words in government
Walker Wildmon: Trey, let's go back to religion and morality. Obviously this plays in here. You don't have this discussion, without religion and morality and the. Yes, marriage is a naturally evident institution as David talked about. but our founders wrote, our laws and our Constitution for a moral and religious people. That was the context of our founding. but religion and morality have almost become this like toxic word that you can't talk about in government. Right. Anything religious and moral. I just can't. Government can't do that. Right. That's just going to have to be the churches. But that's just not true. And so talk about some things that states can do to reintroduce the topic of religion and morality from a government vantage point.
Trey Dellinger: Sure. Well, I think there's a real ray of hope, as David talked about, I think the phrase he used was that the current Supreme Court majority is not insane.
David Upham: Less insane.
Trey Dellinger: Less insane like some of our former Supreme Court majorities. And they've really given us an opening, in the form of the Kennedy case. Kennedy versus Bremerton School District. that case was a very interesting case in a sense. It was a case about free exercise of religion. It was about, Coach Kennedy's right to voluntarily pray and to join with athletes and students in voluntary prayer. But it really was also a case about the establishment clause. Because it was the school district was trying to apply this, reading of the Establishment clause that had arisen from the Lemon case to say that we've got to completely keep any religion, or particularly any religious expression by somebody who's employed by the school. We've got to keep that out of the school grounds because we're afraid of an Establishment Clause lawsuit. Well, the Supreme Court held in that case that that was not a historically accurate view of the Establishment Clause. They rejected the Lemon test. They threw out the Lemon test, which had been eroded in some earlier cases. But they fully and finally said the Lemon test is dead. We're going to return to a historically accurate, accurate, view of the Establishment Clause. So that opens the door, because the history is there. The history is known, as I alluded to, for most of the history of the country, Bible reading, prayer was pervasive in our public schools. So Texas for example, took the lead on this by passing, Senate Bill 11 and AFA action. The work that we're doing that I do with, Dr. Jameson Taylor, we are introducing a number of model bills and a number of states that we're calling the Open to Religion act, based on that Texas bill, to say we're going to create an organized opportunity for voluntary prayer and reading a religious text, the Bible or another religious text if the student and his parents, are of a different religion. We're going to make sure that people understand that there's a preschool, a period before the school day starts where they can read the Bible, read any other religious text that they're devoted to and pray, and that that's not going to result in a lawsuit. And the state attorney general will instruct the school on how to do that and will defend the school. That kind of legislation, which is too complicated to get into the gory details here, but it's very well constructed legislation that doesn't have the defects of some of the practices that were struck down in the Engel and Shemp decisions in the early 1960s. It's a well organized way to really make the public schools friendly to religious expression again. Then we've got another model bill that we're working on at AFA Action, which we call the Thrive act, which we've introduced in Ohio and we intend to introduce in a number of other states, which is the Teaching Honesty, Integrity, Responsibility and Virtue and Education Act. And what that bill does is it teaches, it introduces a plan of character education where you take the basic, basic, beliefs that have really been central to all organized respect for human life, respect for other people's property, care for your neighbor, parents, duties to children, respect for the nation, patriotism, honesty, it teaches these basic precepts which are common to all civilized societies. And then it has an after school program which, where third party groups can come in and teach the philosophical or faith, based foundation for these beliefs. They can teach from the Bible, for example. God says that life is precious. God says that children should honor their parents. So that Bill provides a way to have the school, once again dedicated to reinforcing character, reinforcing, traditional moral precepts in a way that's friendly to religious values. So, that those kinds of model legislations can really take advantage of this Supreme Court majority's dedication to a more historically accurate reading of the Constitution. Again, the sort of practices that we're talking about renewing through this legislation. Prayer and Bible reading in public schools, character based, morally grounded education. That was the standard, that was the rule. That was the norm for most of the history of our country. And the Court's given us an opportunity to return to that.
Jeff Chamblee: And that wasn't a norm just for individuals. It was the norm for actual government officials, state employees and the like. That's one of the things I, Obviously we have to take baby steps in the direction of trying to restore all of this. I teach a law and religion class and one of the things I think often startles the students is when they read night 18th century judicial opinions which say things like, well of course the Sabbath law, the Sunday closing laws are appropriate and constitutional. We are a Christian people. We're not going to allow the Sabbath to be desecrated and so forth.
Phillip Jauregui: So there's.
Walker Wildmon: That was normal.
Jeff Chamblee: That was normal. I mean this is the way. I mean there's disputes, on courts where judges are determining exactly when does the Sabbath start so as to be able to determine was this subpoena, properly served or was it improvised, improper because it was during the Sabbath period. These are the kinds of conflicts that would be disputed but then also resolved by our public officials in terms of a theological commitment to the propriety of the Christian faith and its role in organizing our communities.
Trey Dellinger: David mentioned Justice William Douglas, who was the most left wing, most liberal member of the supreme court in the 1950s. He authored the Zorac v. Clausen opinion wherein he said our legal institutions presuppose a supreme being. So that's how far we've come and we. The court, I think, has now given us an opportunity to kind of restore a better historical balance towards more friendly to religion and morality.
Walker Wildmon: Well, I've taken countless tours to Washington D.C. Williamsburg, Jamestown, Yorktown, and Steven McDowell's great David Barton, etc. But you know, when you look at the Christian faith of our founding fathers, of many, not all of our founding fathers, George Washington would ride his horse to church services in the Capitol building. I mean, some of the first things that happened in the Capitol building as they were still constructing it was church services. And not just, you know, generic church services. They were reading the scripture in the church services. And so, I mean, the first textbook in America's early and oldest still functioning university, William Mary, was the Bible. Everybody read the Bible. It was a central textbook. And so this notion that Christianity, religion and morality, was optional or secluded even in an early American life is just not true. It was central to literally everything that society did and kind of discussed. There was deep theological debates in America's early history. many of our founding Fathers, they would read multiple chapters of the Bible every morning. There's documents of that.
What do you think is the likelihood of Supreme Court reversal
The last thing I want to end on, David, we could carry this thing for hours longer when you're talking the legal world because there's just so much out there on rulings, but from a practical vantage point, and I didn't tell you I was going to ask you this, but this is part of doing sit down interviews. when you look at the Supreme Court overturning itself, right, or correcting its own wrongs, at least in modern history, it seems like it takes a while to do that. Right. Roe versus Wade took what, 50 years? Thereabouts. what do you think is the likelihood? Not that this matters, we're doing the right thing because it's the right thing. But practically speaking, what do you think is the likelihood of the Supreme Court correcting itself sooner rather than later?
David Upham: I'd say at present we have an original ish majority that would not decide Obergefell the same way today than they would ten, years earlier. but they're also reluctant to overturn precedent and m. At the risk of sounding just too enthusiastic about what Jeff had to say, I think we can tell this originalist corporate interpret Obergefell strictly according to its actual terms, not according to its spirit, because I think its spirit is lawlessness, and focusing heavily on containing it. and I don't know how long it might, if we can do that by constantly reminding them of the limitations of what they can order. The fundamental rights of mother and father to their own offspring, which they still acknowledge and which have an obvious conclusion from it, it might be good to actually encourage them to come together under something. I don't know what that is, but we'll put that aside for a second. That's, I think, at present, very likely. I don't know what happens if you have a progressive majority. Again. I'm not sure they'd have, at this point, the power to party like it's 2015 again, either, because the world, this country, is changing very dramatically. So I don't know. And, there's so much we can do rather than having, a tunnel vision focused on this Obergefell. Although it was a terrible decision.
Walker Wildmon: Sure.
David Upham: The reality is there's a massive front and we can proceed on so many other places and just let this, just, as I say, plow around it. that's good.
Trey Dellinger: At minimum, we can cabin the decision so that it doesn't create more problems. Hopefully we do more than begin to
Walker Wildmon: chip away at it. At a minimum.
Jeff Chamblee: Right.
Walker Wildmon: Very good. All right, folks, David Upham, Trey Dellinger, and, Walker Wildmon and, Jeff Schaefer been with us here on this AFA at Home episode 8 series strategies for restoring matrimony and morality in your State Day. Thanks so much for joining us, and we'll see you guys next time.
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Walker Wildmon: Each of these departments play a crucial role in fulfilling AFA Action's vision to see our country successfully preserving life, liberty and the ability to pursue happiness. To learn more and to get involved, go to afaaction.net. Hello, everybody. Welcome to this episode of AFA at Home. This is going to be episode eight, Strategies for Restoring Matrimony and Morality at the State Level. Just to give you a little backgrounder. For much of America's history, it has been universally acknowledged that religion and morality are necessary for good government. Beginning in the mid 20th century, this changed, accelerated by a series of Supreme Court rulings that significantly handicapped the ability of the state or states to prohibit things like pornography, abortion and other deviant behavior. But this panel today, which I'll introduce, will explore different strategies aimed at restoring this state authority to regulate such immoral behavior, specifically regarding marriage and morality.
Walker Wildman introduces our panel of experts on various topics
So to introduce our panel today, we have with us, starting from, your left, Jeff Schaeffer. I'm sorry. Jeff's here. David's here. we've got David Upham with us. David's, associate professor of Law at St. Thomas University College of Law. Trey Dellinger is one of my colleagues here. He's a senior legal fellow with AFA Action, which is our 5014-oh, government affairs affiliate, obviously. I'm Walker Wildmon. I'm your host today. And then Jeff, Schaefer is an attorney and director at the Hell Institute. these men have been with us prior at other events and are excellent, minds on these different topics that we're going to talk about today.
Every major issue in our country lands at the Supreme Court
So, to start, Trey, I think the Supreme Court seems to be the common denominator when it comes to, you know, legal rulings and precedent and debates. Over the last at least 15 to 20 years, the Supreme Court, it seems like every major issue in our country lands at the Supreme Court, and they end up being kind of the arbiter of what we're going to do as a nation, for better or worse. Right. but tell us how the Supreme Court got so instrumental, and involved in these issues, such as what is marriage? Right, right.
Trey Dellinger: Well, I think, Walker, you have to kind of go back to. Go all the way back to the founding era. in the founding era, the founding generation, as you alluded to in your opening comments, they understood that our Constitution and laws are only really fit for a moral and religious people. And for about the first 150 years or so of the country's life, the Supreme Court of the United largely stayed out of the cultural issues. at that time, at the founding. At the time of the founding, and even if you go back to English common law before that, the law and our legal institutions were dedicated to, enforcing moral principles and, establishing a moral foundation for society and placing moral limits on behavior. because the founders, again, understood that, that freedom in a free society under constitutional government is not licensed to engage in any behavior. It's a restriction against arbitrary rule. But that system only works when you have moral limitations, and the law had a key role in that. So if you go back to the, If you go back to the time of the founding of the country and you trace, you know, the patterns of our laws. As you go through the 1800s, for example, what you find is that, every state had laws that were dedicated to upholding moral principles and enforcing traditional requirements around marriage and family, for example, you had, Each state had a section of its code that was dedicated to crimes against Public decency, for example, lewd and immoral and indecent behavior in public was a crime in most every state. as you go further into the late 19th, century and into the early 20th century, you saw laws against cross dressing, for example, that were pervasive in U.S. cities. there were legal requirements for marriage and family. marriage itself was a particular definition that reflected Judeo Christian principles. Marriage of one man and one woman with, legal enforceable duties towards their children. And so this was not, just a contractual arrangement or arrangement of convenience or what would reflect individual choices. Marriage had a structure that reflected a Judeo Christian tradition and that was enforced in law. And you saw the law's, role in enforcing and building up morality across, a number of dimensions of the culture. We, have this idea now that the kind of cultural decay that we see in our society is this sort of bottom up spontaneous process that the culture changes and then politics and government respond to that. We have this idea that, politics and policy are downstream from culture. But if you look back at history, that's not really accurate really. in the deep history of our country, law acted as a sort of moral stabilizer, kind of a, defense mechanism that prevented cultural degeneration. The founders understood this. The founding generation understood that human societies are susceptible to, moral decay. And they viewed the law as a stabilizer. They knew that these sort of ways, waves of immoral behavior would pass through the popular culture, but then they would break up against the law. The law would provide a barrier. They would break up against the law like waves crashing on the shore. And the law was a bulwark and a barrier against this kind of moral decay. Which is a completely opposite idea to the kind of modern and postmodern idea of how law should function. So, I'll give you some concrete examples of that. if you look, I mentioned laws against loose and indecent behavior, at English Common law and its tradition was inherited by the American colonies and later the American states. Lewd and indecent behavior in public was anything that would corrupt the morals of children. So the public square was much more friendly and had a much more moral atmosphere that was friendly to families and children. Their view of religion was also far different. The founding generation understood that religion was a necessary support for morality. You know, President Washington and his farewell address warned us against the concept that you could have m morality without religion. Most people now, think about this. They've been, trained to think that the Constitution includes separation of church and state. Well at the founding that was not the concept of the First Amendment. The First Amendment establishment clause was never applied against the state for the large, early history of the country. The Establishment clause was not even applied against the states until the Everson case in the 1940s. And in that case, for the first time, the US Supreme Court makes a major change. They quote Jefferson's letter to the Danbury Baptist association and say that the establishment clause was intended to erect a wall of separation between church and state, which had never been done before, had never been recognized before, was completely really at odds with constitutional history. And so then you quickly see case, law develop out of the Supreme Court that was hostile to relig. In the early 1960s you saw the Engel and Shemp decisions that effectively removed prayer and Bible reading from public schools. Before that, for most of the history of the country, prayer and Bible reading had been pervasive in the public schools, matter of fact, as an example.
Walker Wildmon: And in Congress.
Trey Dellinger: And in Congress, yeah, you saw opening of public institutions, courts, legislative assemblies would be opened with prayer. In 1869 the National Teachers association, which was the forerunner of today's National Education education association, the NEA, which is a hard left organization. In 1869 the National Teachers association, advocated Bible reading in all the public schools of the nation. So that gives you an idea of how pervasive friendliness towards religion was in the public square. Then you fast forward to the Everson decision in the 40s and the Engel and Shemp decisions in the early 1960s. And that effectively removes prayer and organized religious engagement out of the public schools. Then quickly, in the early 1970s you had the Lemon test which said that the Supreme Court applied what's called the Lemon test in the Lemon case, which said that the government was not supposed to encourage or endorse religion. You began to see this hostility to religion that then developed in the court into rulings which were hostile to morality more broadly. You saw in 1961 you had 1962, excuse me, you had the Griswold case which created a right to privacy within marriage to make intimate personal decisions within marriage. Quickly that was extended to a right for individual personal autonomy in the Eisenstadt case out of the Supreme Court in 63 which created a right to contraceptives for individuals that were not married. So you see then really a real hostility to moral principles in the law that led directly in in 19, 73 to the Roe vs. Wade decision that this right to personal autonomy included a right even for a mother to take the life of her child. Now the right to personal autonomy, they read that into the Constitution and that trumps the traditional moral judgments. That principle was then picked up and goes into 1992, when we had the Planned Parenthood versus Casey case where the court said that the Constitution includes a right for every person to define their own concept of existence and of the meaning of life. That in turn led in 2003 to the Lawrence vs Texas case where the Supreme Court said that moral judgments were no longer a valid constitutional basis for law. So you see how we go from at the founding. In the founding generation, the laws and legal institutions were intended to enforce and support traditional Judeo Christian morals. Now you fast forward to the early 2000s. The law is used as a weapon to tear down and deconstruct traditional traditional moral principles and to make the public square hostile to religion and morality. That leads directly to the Obergefell decision that constitutionalized same sex marriage. So you see how this was not a bottom up spontaneous change in the culture. this was a culture that was dedicated to religious and moral Judeo Christian principles. And you see pressure from the top, from the Supreme Court that forcibly changes the direction of the culture into an amoral direction.
The Supreme Court has become this place where it just welds a lot of power
Walker Wildmon: You know the one thing I want to ask you before we move on to David and Jeff. The Supreme Court has become this place where it just welds a lot of power. Whether it's constitutional power or not is debatable. But back in the founding of our country, I forgot which founding father it was. Early American leader. But the Supreme Court wasn't this noble, prestigious position. The Supreme Court was actually kind of boring, because I mean they didn't even have a building for many, many decades or centuries. they didn't even have their own, you know, Supreme Court building and all this prestige that it comes with today. But when did the Supreme Court either insert itself into this deciding everything, right? I mean almost everything goes. There's. And we just assume that we just got to see what the Supreme Court says. But the founders didn't. Correct me if I'm wrong. The founders didn't intend the Supreme Court to be kind of the one stop shop on being the arbiter of every single legal debate and moral debate in America.
Trey Dellinger: Did they? Well, I think as you mentioned, you saw that grow over time. And David and Jeff are of course much more eminent scholars in this area than I. But a lot of this development, I think came with the application of the 14th amendment against the states after the end of the Civil War, you saw some inklings of it with the Dred Scott decision, where the Supreme Court began to read substantive rights into the Constitution that weren't in the constitutional text. but it really blew up after, there was some activity in the early, 20th century, but it really blew up in the, post World War II period in the 1960s and 1970s, where the Supreme Court, as I alluded to in the cases, the cases that took prayer out of public schools, cases like Roe v. Wade, Eisenstadt and Griswold, where they really declared this right to privacy and personal autonomy, that ultimately, that was in the 1960s and 70s, where they really began to tear down the moral content of the law. And ultimately they declared blatantly in Lawrence v. Texas in the early 2000s, that morality is not a legitimate basis for law, leading to the Obergefell decision. So you saw, a real. It's kind of like the old story where the guy was asked, how did you go bankrupt? Well, gradually, then, all at once, they. Gradually, the Supreme Court increased its influence more and more. And then you saw these kind of very discreet sea change is where they really amassed a lot of cultural power to themselves.
Walker Wildmon: David.
Give us kind of what the religious and historical definition of marriage is
the one institution that we want to talk about today when it comes to, you know, the legal world is obviously marriage. 2015 is a flashpoint where the Supreme Court decides it's going to tell the whole country. Right. What they, what they think marriage is or, what states can do in that regard. But go right pre2015, let's go pre America. Let's go back to God's created order with the marriage union. Give us kind of what the religious and historical definition of marriage is, and then we can start talking about how the Supreme Court inserted the stuff.
David Upham: Sure. I'm actually going to raise you. Let's go back even before the revelation that we now have in Genesis, human beings form marriages. Even before the gospel is proclaimed, even before, there is. I'm going to speak of three marriages. And frequently we say there are two sides. It's actually important to understand the three sides, to understand the lay of the land. Jack and Jill go up the hill, and, Jack says, would you like to hang out? And Jill says, yeah, but, you know, babies might happen. And Jack says, listen, we'll agree that we'll take care of the children that might result. And we know that's a lot of work. Jack and Jill agree to that. That is something that's an anthropological fact of marriage. It's a very difficult thing to do, but it's one of the easiest associations to understand. And the whole human race comes from many generations. And of course, some of our ancestry is not all that pretty. But a lot of it did involve that. Hey, how's it going? And forming that agreement and carrying it out. it's necessarily a free association. It's necessarily male, female. it's necessarily indefinite because children have indefinite needs. You never know when a child is going to get sick. And of course, if you want to raise your child to be like yourself, you raise them so they can be parents too. Which, in case you have an eye toward grandchildren, actually. But the whole association is, We call it marriage in the English language. It's a little bit of an obscure word. Where Mary comes from. I'm going to prefer the word matrimony. Not only because it's clear where it's from, but also because it helps us distinguish this marriage thing, which is now getting rather distorted. matrimonium, the monium is the duty mater. It's this. We're going to jointly deal with the work. The husband is going to be a joint partner in the work of the mother, show up not just for the conception, but also the reception and education of offspring. it was not a controversial thing to call that marriage until very recently. And, it was not something that in sociology, anthropology, people would have difficulty. And it was largely, almost entirely a cultural universal, like a dinner party. Human beings do these sorts of things. Christianity, comes along and does not distort nature, but takes it and then elevates it. First by revelation. We learn that this thing that human beings do, that's actually what God wants them to do. It's not just a fact. in fact, it was so from the beginning. so Genesis, when it concludes, and thus it shall be that a man shall leave his father and mother. I think that's primarily an explanation, not just saying, why do human beings do this? Well, because God wanted it that way. it's a good thing. And it's before the Fall that it happens. It's not the Fall that creates marriage. the Fall distorts marriage. But, secondly, Christianity gets rather strict. They say, Jack and Jill, that's the only place for hanging out. You're not allowed to have anything on the side. Third, monogamy. Oh, Christianity fought thousands of years of culture war against polygamy. only one wife at a time. And we know that from Scripture, because it's in the Old Testament, it's a phenomenon. And it's something that Christianity really says, okay, the season is over and our Lord Jesus elevates marriage back to its natural status. M. It's not just indefinite, but it's indissoluble except for very grave cause, if at all. And that's a dispute among Christians. But all Christians agree that, matrimony certainly, among Christians is something that is for life and maybe something very violent, something very bad. No casual divorce here. and then lastly, of course in Christianity, it's a symbol, a sign of Christ's love for the church. So Christianity does a lot of things to marriage. It doesn't distort its sort of natural or pre revelation definition, but it makes it, it. It's divinely instituted, a holy union, the holiest state, and it should be monogamy. as Trey rightly pointed out, the American common law and our tradition up until really, I'd say up to World War I, virtually every legal authority, endorsed the Judeo Christian idea of matrimony. the Supreme Court, over 30 years, by my count, 24 justices, between 1884 and 1917, join unanimously in saying that the most important law, the most important law is the law that establishes the family on the basis of the union of one man and one woman in the holy estate of matrimony. So not only natural matrimony, but one man, one woman. No, you can't have two wives at a time. And it's a holy estate, not just a natural phenomenon. In a Supreme court case in 1908, Justice Harlan said this reflects the nearly, we didn't say entirely nearly unanimous view of the American people, after World War I. That never is found, endorsed in the Supreme Court cases and in state court cases vaguely. The changes, I would say, really go back to the 1920s as a huge cultural change in our country. When the elites begin the process where they get, they in some sense turn against and then later on they start exercising power to push it down. But the discourse among our elites in the universities and in the cities in the 1920s, should be familiar to us because now it's pretty much our culture.
Walker Wildmon: That's interesting.
Just spending some time with judicial decisions can change language
Let me interrupt you, David. That's interesting because when I think about this downward spiral that we're in, I think maybe sexual revolution, 1960s, obviously well before I'm around, but definitely don't go back that far. And I haven't heard many people, if any Trace it back that far. What makes you feel confident enough to go back into the 20s and 30s?
David Upham: Just spending some time with judicial decisions and noticing the ways in which they subtly change language. I'll give one example. in 1942 in the Williams case, this is, a predecessor to all of this Williams versus North Carolina. The Supreme Court overturned its precedents on full faith and credit. And they effectively said that, Any state that adopts the easiest divorce, like Nevada, will in fact be the divorce law for the whole country. Because if you can go from one state, get divorce there and then go back. And North Carolina is going to have to accept that divorce. And that was a judicial decision authored by Justice William Douglas, who authored Griswold 20 years later and was, on the Romajaro party.
Trey Dellinger: they generally regarded as one of the most liberal Supreme Court justices ever.
David Upham: So there was definitely. And there's just so much more to say. I would just say in terms of popular culture. There's a song called, Anything Goes written by Cole porter in the 1920s. which is a pretty strong discussion of what's going on in NewSong York and how now anything goes. And It's both comical, but it's also an illustration, at least in some circles, about just as many things. I couldn't even. Actually, I wouldn't even say it on the program because it would be a little PG13. And I don't want to. So you have the second. They have that second view of marriage. And there's a third view which is actually old, but, Reaches kind of a crescendo of power in America in the mid 20th century. And that's the idea of the romantic partnership. Romance, as the word indicates, comes from a certain part of the world deep in Western Christendom in the late Middle Ages. And For those who are disposed to really nerd out, There's a book called. By Denis de Rougemont, written in the 30s, called Love and the Western World that I highly recommend to anybody who wants to wade through it. Because, He was a Swiss scholar, a Christian, describing the history of what we call romance. And he says from the beginning was always anti marriage. It was a rival to marriage. The romantic story is about transcendent death, that is to say, adultery and death. Romeo, and Juliet, they're supposed to die. That's the point of the story. And, It's a rival theology. It speaks about, well, when you die, you have a soulmate in Heaven. Okay. And, what you should be doing is escaping from the world. It's very complicated stuff. But all the stuff that we see that's still so ever present in our culture. Not as much as it used to be about soulmates forever and ever. M. Is this about children? I mean, it's not. You know, the Hallmark movies don't end in childbirth. They end in a transcendent kiss.
Trey Dellinger: It's more about feelings than stable social institutions.
Walker Wildmon: Right.
David Upham: Yeah, that's right. It's not about stable social institutions. And this is important.
We should distinguish between matrimony and romantic partnership
So that gets. That ultimately becomes the basis of Obergefell. We know this because in Griswold, they have a definition of marriage. You can read it there. And they don't talk about the holy estate of matrimony. They say marriage is a coming together for better or for worse. Sounds kind of Christian. Ish. And then they say it's not for social or political projects, but for something noble. Our entire legal tradition would have said, what do you mean it's not for. So that's the first social project. In fact, it's the foundation of society is the association between male and female bring forth. And then the political community is built around that on top of that. But it's really magic, carpet ride. And as I say, that magic carpet ride is no place for kids. They tend to fall off. matrimony is, of course, divinely instituted, and it points to, the divine. But it's about earth and babies and houses. The word husband bound to a house. not flying off in the sky, not having a transcendent experience. and this is important to understand Urbanfell. We often say that's a result of secularism. If you read the Obergefell decision, it's an alternative, universe. And there's a lot about transcendence. And, it's not actually hard hitting, earthbound facts. And then there's Christians over here praying in the corner. There's a different prayer being said there. And it's a prayer that's not, that's not matrimony. And those are the sort of the three things that are going on in our culture. and it's important to distinguish those things. I'm not against. I like Hallmark movies. Okay. And there's something. And I like a lot of the.
Walker Wildmon: They do all end the same, though. Yeah, they.
David Upham: But we should. We should not think that we're getting. We should understand that whatever being educated, there is not an education in matrimony, let alone Christian matrimony. And that obscurity made it very difficult for us, ah, who are Christians, many of whom, it turns out, are the biggest consumers of those sorts of movies, to be able to answer slogans like love is love and, because we don' twe're not, we have a certain obscurity in our own minds about what the distinction between matrimony, Christian matrimony, and this romantic partnership idea that has always been something of a rival. And really, I think my opinion, and de Rougemont says this as well, is one of the main causes of. Even in the 30s, he says divorce is exploding. And he wouldn't be. I mean what happened in the 60s, 70s was crazy. But even in the 30s, by American traditional standards, the 1920s, 30s, 40s already shows an extreme high level of divorce relative to, the first 300 years of our republic from the Puritans through World War I.
Walker Wildmon: Fascinating. I never viewed romance like that, but that's very, that makes a lot of sense. It's become this kind of touchy feely, self centered approach to the relationship up to the union, as opposed to a selfless approach, on others and their needs. Jeff I want to, address kind of this. I poke fun at my libertarian friends, which we probably agree on a lot. But when it comes to, you know, what's it matter what the Supreme Court says? Right. Or what's it matter what a state says about matrimony or marriage? it really does matter.
The conversation shifted post Obergfell on same sex marriage
And so talk about the why people should care about this and what the government's position is on it.
Jeff Chamblee: Yes. This is not something that we can simply give the back of the hand to. It's no small thing when our highest levels of government, dictate are redefining such fundamental institutions as what marriage is in the land. This is, we might say the law taking a position on taking a posture toward the meaning and significance of human being in its, familial relationality, which is normative for what a person is. Moreover, it implicates what the law itself is. That is to say, does the law recognize that there is a reality external to itself to which it must defer, or does it simply get to just make things up as it goes along? you know, one of the things that, I'll mention this, carefully. There's been a substantial emphasis on religious liberty questions on the backside of Obergefell, which I think is altogether legitimate. Obviously a lot of resources properly ought to be directed toward shoring up the prerogatives of Individuals of conscientious objection that do not wish to be co opted or coerced into participating in evil on the backside of this marriage redefinition. all very good, an important undertaking. Nevertheless, I would like to say that my concern is that when our exclusive concern is on my prerogative to do what I wish to do, it's actually doing something less noble, which is serving as something of a distraction. it's deflecting attention from the fact that a far more consequential development has taken place. There's something more fundamental, radical, more ah, sinister that has been inaugurated by Obergefell than simply an elimination of certain choices of traditionalists. You see, what Obergefell, and we might say what the law embracing this thing called same sex marriage is, is essentially a determination that there is no public and institutional significance to persons being male and female. which is not only to kind of revolutionize human anthropology, it's likewise, to revolutionize the law itself. It no longer is deferring to uninterrupted human commitments through all civilizations since the beginning of time, to the very structure of the human body, that which is inscribed on our faces. All of these things testify to particular truths. And the law is essentially saying we don't recognize any of that, we do what we wish to do. Which is to say that the natural family in such a condition no longer has a claim to any sort of independence, autonomy, authority within its own jurisdiction. Because that would suggest that there is a reality and authority outside of what the law says. which is precisely what this same sex marriage construct denies. Which is we all get to make it up as we go along. Which essentially means the law is uninhibited in doing whatever it wishes to do. Which is a nice thing to say to your libertarian friends. Which is, this is fundamentally a totalitarian, statist, totalist undertaking because it does not recognize, accommodate, truths that are independent of the wishes of those who are wielding power. And when that becomes the operable principle, everything is on the table for state action. And you have now been deprived of any of your claims to liberty that in the past you would have been able to appeal to.
Walker Wildmon: Yeah, this, this. I talk about how quickly the conversation shifted post Obergfell. And I've pointed out multiple times that number one, every talking point that was used to get the American people on board with, to the degree that they did, you know, the Supreme Court creating this free for all on marriage, and opening Pandora's box that has broad implications that you just alluded to within six months, 12 months at the most. I have to look back at the specific timing we went from live and let live. You know, this doesn't affect you Christians, right? You'll still have your First Amendment, even though now they're saying you don't have it. But, North Carolina, they were wanting boys in girls bathrooms. Remember The House Bill 2, North Carolina bathroom debate, the weak Republican governor there. that was a huge, you know, cultural flashpoint that was within 12 months of our Burke felt. So we went from homosexuality debates about whether two men can pretend that they're married to, we want dudes in girls dressing rooms, like. And then now we're talking about transgenderism and defined human sexual, biology.
Jeff Chamblee: Yes. You know, it's interesting to me that the Vanity Fair magazine cover with Bruce Jenner gussied up as a woman half his age, appeared on the scene within hours of the Obergefell decision being published. There was a kind of proper temporal association between those two. What you alluded to as flashpoints. the court evidently, impliedly authorized the transgender crusade by what it did in Obergefell. If male and female do not matter in the very place that it has mattered most, why should it matter anywhere else? So I do think that, Obergefell really did. Was the push, the launch. obviously this was in development over a period of time, but there was a kind of credence that was now present that hadn't been prior to Obergefell. And it would be appropriate for us, as we grow weary of having our credulity strained by this transgender proposal, that we look and see that it didn't arise independently, we should be giving a critical eye to Obergefell as well. If we don't like what's going on in the trans crusade.
Walker Wildmon: Absolutely. Absolutely.
Trey Dellinger: The roots of it go all the way back to this concept of right to constitutional personal autonomy that we saw in the Griswold and Eisenstock cases through Roe. And then, really, you see the lingo of the transgender movement in the Planned Parenthood versus case passage that the Constitution guarantees a right for every person to define their own concept of existence and of the meaning of life. What does that sound like? Sounds a lot like, gender ideology, where you can wake up on a different day and decide whether today I feel like I'm male or female. We see it's full culmination in Obergefell. It's interesting because, as I spoke of traditionally, the law was dedicated to a Jewish, traditional Judeo, Christian moral ethic into reinforcing that. Then you see in this course, from, Lawrence v. Texas, Casey, and then Lawrence v. Texas and Obergefell, where the law says objective moral standards, divine law and natural law, objective moral standards, like Jeff is referring to, the Supreme Court says, now those, we're defining those as invidious, discrimination, moral standards, equal, unlawful discrimination. And then you saw the move towards the culture, the LGBTQ culture demanded affirmation. Now you go from, traditional moral standards, equal discrimination now, to anything that, denies me my truth or anything that discriminates against my personal individual choices. Now that constitutes immorality. So you saw the courts Engineer this complete 180 degree flip where you went from the legal system and our institutions enforced traditional morality to now they're dedicated to, blocking and deconstructing traditional morality.
Jeff Chamblee: Can I put my oar in here real quick? I was interested and rather appreciated the way that you designed your comments earlier, initiating with Washington's observation of this indispensable connection between the religious and the moral. We might say the theological and the moral must stick together. And that was recognized for quite a period of time. And then in the 20th century, as you detailed at some length, the courts were largely saying we have to get rid of the theological, which of course then leaves the moral sitting all by itself, which then permitted its, decrepitude, you know, the decline that you were speaking of as well. but David made the point in his comments that actually Obergefell has something of a counter theology resident within it. So there is a way that we don't ultimately escape, having to have this transcendent kind of source that we're pulling from in order to explain things. M. But your point about how things have altered to such an extent that now the new morality is in play. And I would like to say that morality is associated with the new theology that is in play. So what the courts ultimately did was not to get rid of the theological or the religious. It was to get rid of Christianity so as to be able to replace it with an alternative, an absurd and preposterous one, but nevertheless one that serves the same kind of function. Now, that point of transition, I don't know where to identify it, but it certainly has taken a while to come into its own. But here we are in the 21st century facing just spectacular absurdities in the world of, we might say, moral consideration. for whatever that's worth.
Everyone has a right to define their own existence
David Upham: If I can jump in, Trey was Talking about the relationship between Cayce and then the new intolerant. In some sense, it's not a contradiction. Because if you say everyone has a right to define their own existence, and there's someone like me saying, I have no such right. I have a duty to see and to obey what I can know by reason, what I can know by revelation. I'm not doing what I feel. and I'm not deciding to create the universe in my own image. That's exactly what I'm not allowed to do. And if I do that by my word and example, I am contradicting, Justice Kennedy. I don't conceive of my liberty as a right to do what I want, but to worship God according to the dictates of my conscience. so that's very important. And secondly, insofar as Romans one has anything to say about it, the problem with the human being who says there is no creator, every time you have all evidence of either natural or revealed standards of what is right and wrong is something hateful to them. Them, it's either a contradiction of their claim because there is in fact a creator who's given ord rules, or, it's just some sort of, interference with their freedom.
Trey Dellinger: Right.
David Upham: And similarly with Obergefell, it's not surprising if you say I can read the Constitution, truly read the actual Constitution, to compel all the states to grant the status, the title and rights of marriage, why can't the states ask a baker to do the same? I mean, the Constitution can be read the former, certainly the latter as well. Baker versus Estate versus all the states of the Union and five judges on the court. so it kind of. There is an integrity. And one last thing about Obergefell, and Jeff pointed to this. Once you have this kind of, Once people are in fact aware that the court is engaged in some kind of daring thing of saying, we can redefine marriage, we can redefine a natural human institution. they're flush with victory, and then they go on. What's our next conquest? Well, we can redefine male and female. I mean, it's actually. It's the next town you conquer. It's obvious.
Trey Dellinger: Once there's no longer any objective reality and everything is just a construct, they're either. There are no real limits at that point.
The only figure or authority that can counter that is the states
Walker Wildmon: David, I want to talk. You mentioned the states. I want to talk about what states can do, because we've obviously identified the problem. We have a court, and this isn't all on the Supreme Court, but they've been a major bad actor. when you talk about the history we just covered, but our founders did not intend under any circumstance for a court, any court, to have the level of power that the Supreme Court has assumed. but the only figure or authority that can counter that is the states. When you look at our founding, so what can states do to counteract this upending of one of the world's longest standing institutions?
David Upham: well, to a certain extent, just the disintegration, the Obergefell, partly induced by Obergefell, the decline of the prestige of our central institutions, makes those institutions comparatively weak. And, in the providence of God, against all my expectations, since Obergefell, the current majority of the Supreme Court is most inclined or least hostile to, what I would call, recognizable constitutional interpretation. I'm being very. They seem to be less insane. In fact, I wouldn't say. And, they're going to. And they're likely to be, they're likely to be more tolerant of states, those states that can and will do, something substantial. And one of the things that is, you know, in all things you want to say, okay, what type of flour and oil do you have in your cabinet? Just find out what God has given you. Among the things we have, of course, there's an enormous amount of freedom and wealth in this country, including among Christians. But there's significant population, disproportions. anytime you do these states, Americans believe, well, if you compare South Dakota or Mississippi or Arkansas, you're not going to see anything like the same numbers as you see in Nevada or California. So take very seriously our federal system and look at the states where a lot of progress can be made, as we saw, with respect to the protection of the unborn and the Dobbs decision that came from a red state, exercising, constitutional, authority. So there's a lot that can be done at the state level.
Walker Wildmon: Jeff, you and I have talked in previous, you know, interactions about what Obergefell did and didn't do. obviously the layman's explanation, if you were to ask people on the street, is, well, Obergefell legalized same sex marriage. Right? That would just be what they say. And maybe it did, maybe it didn't. But tell us, what did the Supreme Court opinion itself, compel the states to do, authorize the states to do, or authorize the states not to do?
David Upham: To do
Jeff Chamblee: that invites, a kind of answer that would take a very long period of time at Some level of complexity. So, ah, before answering, I'll just say very quickly, I did write an introductory essay on this kind of question called what Obergefell did not and could not do, which is out there on the web, for a somewhat more, elaborate presentation, that would answer your question. There are a number of things that can be said. from a very long list, I'll just select a few. Excuse me. one thing that we might say is there has been an extraordinary, accommodation of that opinion by states that never should have happened. I'm talking conservative red States have laid down flat before that opinion as if it accomplished this remarkable overhaul of their ancient statutory systems of family law altogether inappropriate. And it really is a remarkable thing that these conservative, governments at the state level have not kind of insisted on reading Obergefell for the very small thing that it did. Now that's understandable for this reason and for the reasons we've been talking about in this conversation. Same sex marriage as an idea is uncontainably vicious and knocks down everything in its path. So as a cultural accomplishment, Obergefell ruins everything. It really, it implies the elimination of male, female, and really all of the structures absolutely central to a community.
Walker Wildmon: So it's the furthest thing from a narrowly tailored opinion.
Jeff Chamblee: That's right. So at least as a cultural accomplishment that our highest judicial tribunal would announce such a thing is, as I say, uncontainable. On the other hand, what Obergefell was
Trey Dellinger: as a legal decision, as was a
Jeff Chamblee: legal decision, that is to say it is now circumscribed by Article 3 of the Constitution. What can a federal court do? What can a Supreme Court do? And the authority that the Constitution gives to the Supreme Court and other courts is to resolve cases or controversies between parties. It's resolved. It's not a legislature. It's not making law for the nation. It's announcing a disposition to a conflict that's in the court in front of it. And essentially what the court did there was, say, those states that are now before us insofar as they have a licensing scheme for marriage and it doesn't include same sex couples in its provision, well, then it's unconstitutional. That is to say, the court found a fundamental right to have a state marriage license if there is such a system in the first place. That's all the court did. Now, of course, in the process, Justice Kennedy went on all of these different, traipses through the prairie on all kinds of things that he finds interesting. That's not the law of the case. The ruling is the law of the case, and it applies just to the parties that were in favor front of the court. Nevertheless, what courts have done. Excuse me, what states have done is essentially read Obergefell as having revamped or kind of accomplished an omnibus, rewriting of all of their state family law, not just with respect to marriage, but as to questions of child custody, birth certificates, adoption, this whole range of things that the Court never ruled on. So what I would like to say is really one of the things that states ought to be doing is giving careful attention to what actually can be said was done by the court and how that interacts with a, ah, whole other range of jurisprudence, as well as constitutional standards that would hem it in. So, for instance, the Supreme Court's due process jurisprudence that has never been touched by the Court in Obergefeller, after, gives particular cognizance to the natural relation of mother to child and father to child. Those continue to be things that the states in their policy can recognize. The courts have done nothing to get rid of that. Certainly Obergefell did not. there is a. We might say, and this starts to get lawyer nerdy. but jurisdictional limitations on federal courts. What can they command states to do? They simply cannot say, now go make a statute to conform with what I want. That's just not within the power of a court. So there are lots of ways in which we could say Obergefell only did this on the legal level, even though on the cultural level it accomplished kind of a worldview change as far as the law is concerned. There is a whole lot of arguments that are resident in state Attorney General's offices. And what I would urge them to do is to defend the laws that are in existence at the state. There's no reason.
Walker Wildmon: There's a lot.
Jeff Chamblee: There's a lot there, and they ought to stick with it rather than simply capitulating to what they imagine the Court might do later if confronted with litigation over this question. David alluded to the Dobbs case, which came down. We have a Supreme Court now. I don't know how, anxious they are to be repairing things, but they're not going to break more things, I think. And what happened in the Dobbs decision was to undercut the justification, the principal one, that Justice Kennedy offered in Obergefell. there was an equality component as well that I think was quite weak, but it's on, shaky ground. The Obergefell case.
Trey Dellinger: It's hard for Obergefell and Dobbs to live in the Same universe.
Jeff Chamblee: That's right.
Trey Dellinger: They're fundamentally in conflict.
Jeff Chamblee: I just think there's a whole range of possibility resident to, state officials that have the spine to insist on, we're going to organize our communities in a way that preserves the integrity of marriage and family within our jurisdiction. That has been the exclusive prerogative of states since the founding. So for them to so readily give up on that authority is really a remarkable thing, and there's no good reason for them to have done so.
Walker Wildmon: Yeah. And so state lawmakers, governors, attorney general, anybody listening, or if you have connections to such. This. This, gives state, elected officials no excuse to say, well, we've got to wait till, Obergefell is overturned like Dobbs, before we can start kind of meddling in this again.
Trey Dellinger: Right.
Walker Wildmon: To your point, there's so much that can be done, positive at the state level, even if Obergefell were to stay into place.
Jeff Chamblee: That's right.
David Upham: to counter this, can I just jump in and make a plug? But within a month or so, I'll have an opportunity article that will be available online called Plowing Around Obergefell that will be very consonant with Jeff's remarks.
The Notre Dame Law Review will publish a rebuttal to the Obergefell decision
so Notre Dame Law Review will be publishing that hopefully within a month. And I'll be elaborating also on some of these topics.
Jeff Chamblee: You know, the shoring up of, all of these important natural relationships that emerge from the marital union. we might say those are all adjacencies to the Obergefell marriage, decision. But, of course, Justice Kennedy, in his opinion, is scratching his head and saying, I can't see anything important about male and female husband and wife. Of course we can. and states can. And so long as states continue to elevate those natural relationships in the law, it is a continuous rebuttal of the Obergefell decision. So as we're working on these, we may call legal adjacencies, it is, in effect, to be overrunning the logic of Obergefell itself, which I think ultimately will fall. But there are processes to get there.
Walker Wildmon: The more we talk, the worse Oberg gets, because. And these are supposed to be the most intellectual people in the country at the Supreme Court deciding on this. You would think that they would have thought through the implications of the ruling. But the media made this like a romance discussion or a. You know, it was the media and even your legal commentators did not go into the depth that we are about their broad applications of this ruling. they just said, oh, it's about two adults you know, just doing whatever they want to do. Way more broad than that.
Jeff Chamblee: You know, it intrigues me to look back on some of the commentary that came out immediately after the Obergefell, decision was announced. Even those who supported the same sex marriage idea in policy recognized that Obergefell was a absurd presentation on that point. I'll not kind of diminish Justice Kennedy too much, by reciting some of the things that were said about his opinion. But I often say it really is sophomoric bilge. What emerged. This is not careful judicial reasoning that was behind all of this. It was an embarrassing spectacle and continues to be an embarrassment to the Supreme Court. I have, hopes that, courts, governments across the nation will really begin to look seriously at it and see that it's not really even C minus work in high school creative writing. there is, I often say, not a paragraph in that opinion that I do not wish to light on fire for some very good reason. but that is the nature of this undertaking and accomplishment, I suppose, by the Supreme Court. And we should, not assign to it a kind of significant, beyond what its merits call for.
Religion and morality have become toxic words in government
Walker Wildmon: Trey, let's go back to religion and morality. Obviously this plays in here. You don't have this discussion, without religion and morality and the. Yes, marriage is a naturally evident institution as David talked about. but our founders wrote, our laws and our Constitution for a moral and religious people. That was the context of our founding. but religion and morality have almost become this like toxic word that you can't talk about in government. Right. Anything religious and moral. I just can't. Government can't do that. Right. That's just going to have to be the churches. But that's just not true. And so talk about some things that states can do to reintroduce the topic of religion and morality from a government vantage point.
Trey Dellinger: Sure. Well, I think there's a real ray of hope, as David talked about, I think the phrase he used was that the current Supreme Court majority is not insane.
David Upham: Less insane.
Trey Dellinger: Less insane like some of our former Supreme Court majorities. And they've really given us an opening, in the form of the Kennedy case. Kennedy versus Bremerton School District. that case was a very interesting case in a sense. It was a case about free exercise of religion. It was about, Coach Kennedy's right to voluntarily pray and to join with athletes and students in voluntary prayer. But it really was also a case about the establishment clause. Because it was the school district was trying to apply this, reading of the Establishment clause that had arisen from the Lemon case to say that we've got to completely keep any religion, or particularly any religious expression by somebody who's employed by the school. We've got to keep that out of the school grounds because we're afraid of an Establishment Clause lawsuit. Well, the Supreme Court held in that case that that was not a historically accurate view of the Establishment Clause. They rejected the Lemon test. They threw out the Lemon test, which had been eroded in some earlier cases. But they fully and finally said the Lemon test is dead. We're going to return to a historically accurate, accurate, view of the Establishment Clause. So that opens the door, because the history is there. The history is known, as I alluded to, for most of the history of the country, Bible reading, prayer was pervasive in our public schools. So Texas for example, took the lead on this by passing, Senate Bill 11 and AFA action. The work that we're doing that I do with, Dr. Jameson Taylor, we are introducing a number of model bills and a number of states that we're calling the Open to Religion act, based on that Texas bill, to say we're going to create an organized opportunity for voluntary prayer and reading a religious text, the Bible or another religious text if the student and his parents, are of a different religion. We're going to make sure that people understand that there's a preschool, a period before the school day starts where they can read the Bible, read any other religious text that they're devoted to and pray, and that that's not going to result in a lawsuit. And the state attorney general will instruct the school on how to do that and will defend the school. That kind of legislation, which is too complicated to get into the gory details here, but it's very well constructed legislation that doesn't have the defects of some of the practices that were struck down in the Engel and Shemp decisions in the early 1960s. It's a well organized way to really make the public schools friendly to religious expression again. Then we've got another model bill that we're working on at AFA Action, which we call the Thrive act, which we've introduced in Ohio and we intend to introduce in a number of other states, which is the Teaching Honesty, Integrity, Responsibility and Virtue and Education Act. And what that bill does is it teaches, it introduces a plan of character education where you take the basic, basic, beliefs that have really been central to all organized respect for human life, respect for other people's property, care for your neighbor, parents, duties to children, respect for the nation, patriotism, honesty, it teaches these basic precepts which are common to all civilized societies. And then it has an after school program which, where third party groups can come in and teach the philosophical or faith, based foundation for these beliefs. They can teach from the Bible, for example. God says that life is precious. God says that children should honor their parents. So that Bill provides a way to have the school, once again dedicated to reinforcing character, reinforcing, traditional moral precepts in a way that's friendly to religious values. So, that those kinds of model legislations can really take advantage of this Supreme Court majority's dedication to a more historically accurate reading of the Constitution. Again, the sort of practices that we're talking about renewing through this legislation. Prayer and Bible reading in public schools, character based, morally grounded education. That was the standard, that was the rule. That was the norm for most of the history of our country. And the Court's given us an opportunity to return to that.
Jeff Chamblee: And that wasn't a norm just for individuals. It was the norm for actual government officials, state employees and the like. That's one of the things I, Obviously we have to take baby steps in the direction of trying to restore all of this. I teach a law and religion class and one of the things I think often startles the students is when they read night 18th century judicial opinions which say things like, well of course the Sabbath law, the Sunday closing laws are appropriate and constitutional. We are a Christian people. We're not going to allow the Sabbath to be desecrated and so forth.
Phillip Jauregui: So there's.
Walker Wildmon: That was normal.
Jeff Chamblee: That was normal. I mean this is the way. I mean there's disputes, on courts where judges are determining exactly when does the Sabbath start so as to be able to determine was this subpoena, properly served or was it improvised, improper because it was during the Sabbath period. These are the kinds of conflicts that would be disputed but then also resolved by our public officials in terms of a theological commitment to the propriety of the Christian faith and its role in organizing our communities.
Trey Dellinger: David mentioned Justice William Douglas, who was the most left wing, most liberal member of the supreme court in the 1950s. He authored the Zorac v. Clausen opinion wherein he said our legal institutions presuppose a supreme being. So that's how far we've come and we. The court, I think, has now given us an opportunity to kind of restore a better historical balance towards more friendly to religion and morality.
Walker Wildmon: Well, I've taken countless tours to Washington D.C. Williamsburg, Jamestown, Yorktown, and Steven McDowell's great David Barton, etc. But you know, when you look at the Christian faith of our founding fathers, of many, not all of our founding fathers, George Washington would ride his horse to church services in the Capitol building. I mean, some of the first things that happened in the Capitol building as they were still constructing it was church services. And not just, you know, generic church services. They were reading the scripture in the church services. And so, I mean, the first textbook in America's early and oldest still functioning university, William Mary, was the Bible. Everybody read the Bible. It was a central textbook. And so this notion that Christianity, religion and morality, was optional or secluded even in an early American life is just not true. It was central to literally everything that society did and kind of discussed. There was deep theological debates in America's early history. many of our founding Fathers, they would read multiple chapters of the Bible every morning. There's documents of that.
What do you think is the likelihood of Supreme Court reversal
The last thing I want to end on, David, we could carry this thing for hours longer when you're talking the legal world because there's just so much out there on rulings, but from a practical vantage point, and I didn't tell you I was going to ask you this, but this is part of doing sit down interviews. when you look at the Supreme Court overturning itself, right, or correcting its own wrongs, at least in modern history, it seems like it takes a while to do that. Right. Roe versus Wade took what, 50 years? Thereabouts. what do you think is the likelihood? Not that this matters, we're doing the right thing because it's the right thing. But practically speaking, what do you think is the likelihood of the Supreme Court correcting itself sooner rather than later?
David Upham: I'd say at present we have an original ish majority that would not decide Obergefell the same way today than they would ten, years earlier. but they're also reluctant to overturn precedent and m. At the risk of sounding just too enthusiastic about what Jeff had to say, I think we can tell this originalist corporate interpret Obergefell strictly according to its actual terms, not according to its spirit, because I think its spirit is lawlessness, and focusing heavily on containing it. and I don't know how long it might, if we can do that by constantly reminding them of the limitations of what they can order. The fundamental rights of mother and father to their own offspring, which they still acknowledge and which have an obvious conclusion from it, it might be good to actually encourage them to come together under something. I don't know what that is, but we'll put that aside for a second. That's, I think, at present, very likely. I don't know what happens if you have a progressive majority. Again. I'm not sure they'd have, at this point, the power to party like it's 2015 again, either, because the world, this country, is changing very dramatically. So I don't know. And, there's so much we can do rather than having, a tunnel vision focused on this Obergefell. Although it was a terrible decision.
Walker Wildmon: Sure.
David Upham: The reality is there's a massive front and we can proceed on so many other places and just let this, just, as I say, plow around it. that's good.
Trey Dellinger: At minimum, we can cabin the decision so that it doesn't create more problems. Hopefully we do more than begin to
Walker Wildmon: chip away at it. At a minimum.
Jeff Chamblee: Right.
Walker Wildmon: Very good. All right, folks, David Upham, Trey Dellinger, and, Walker Wildmon and, Jeff Schaefer been with us here on this AFA at Home episode 8 series strategies for restoring matrimony and morality in your State Day. Thanks so much for joining us, and we'll see you guys next time.
For much of America’s history it was universally acknowledged that “religion and morality” are necessary to good government. Beginning in the mid-twentieth century this changed, accelerated by a series of Supreme Court rulings that significantly handicapped the ability of states to prohibit pornography, abortion and deviant sexual behavior. This panel will explore strategies aimed at restoring historic state authority over marriage and morals.
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