Is the Defeat of DOMA Really “Settled Law”?

In 2011, President Obama called the Defense of Marriage Act “unconstitutional” and said his administration would stop enforcing it.1 Now, the Supreme Court has followed suit, declaring the act constitutionally flawed. One delighted citizen tweeted, “I’m not a legal expert but I think this ruling officially makes [lesbian] Ellen [DeGeneres] our new ruler.”2

Constitution-No-DOMAPerhaps not yet. But how sweeping is the ruling in Windsor v. US (2013), where the Supreme Court said the federal government had no business acting through the Defense of Marriage Act “to impose restrictions and disabilities” on homosexual couples whom certain states had recognized as duly married? Technically, particular states may still draw lines against it. The Gay & Lesbian Advocates and Defenders (GLAD) got it, when they urged their constituency to “keep in mind” that “The Supreme Court’s ruling in Windsor applies only to the federal government. It does not change discriminatory state laws excluding same-sex couples from state-conferred marriage rights.”3

Of course, GLAD hopes that the states will fall in line one after another, but it could go the other way—in two ways. States could conceivably change their minds against gay marriage, or Windsor could be reversed, despite the principle of stare decisis (Latin for “stand by things decided”).4 It applies to the way in which court decisions serve as precedents or authorities for subsequent rulings and policies. If it weren’t for this principle, social and civic life would be chaos. Families, churches, schools, businesses, and agencies would not know how to plan.

Of course, “normal” rulings can be chaotic as well, so there are rocks on both sides. But respect for precedent has its place. Certainly, those who love a particular ruling want it to stand forever. That’s why abortion enthusiasts on the Senate Judiciary Committee press candidates for the Supreme Court to affirm that Roe v. Wade is “settled law,” as when John Roberts was queried by Sen. Arlen Specter.5 Roberts agreed that disregarding stare decisis could mean “a jolt to the legal system.” But, he continued, some long-standing cases deserve to be overturned, such as those that legalized slavery in the 19th century and racial segregation in the 20th century.6

Roberts was, of course, referring to the Dred Scott decision (1857), which declared a slave to be property, but was nullified by the 13th, 14th, and 15th Amendments to the Constitution; and to Plessy v. Ferguson (1954), which enshrined “separate but equal,” but was supplanted by Brown v. Board of Education (1954), which declared that separate was “inherently unequal.” And there are other examples: Loving v. Virginia (1967) dismissed Pace v. Alabama (1883), which had prohibited black/white marriage; Lawrence v. Texas (2003), negated Bowers v. Hardwick (1986), which had outlawed “sodomy”; West Coast Hotel v. Parrish (1937), set aside Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923), both of which had said the state could not exercise control over work contracts in the private sector, e.g., re. working hours or minimum wage.

More recently, Citizens United v. Federal Election Commission (2010) set aside Austin v. Michigan Chamber of Commerce (1990), which had limited campaign contributions from corporations, associations, and unions. In that ruling, Justice Kennedy, explained that time could tell that the original judgment was unworkable and unreasonable, fraught with “shortcomings.”7

Still, gay-marriage proponents keep pressing toward their own version of Roe v. Wade, which knocked down virtually all opposition to abortion nationwide, but even if they succeed, history demonstrates that the matter is not finally settled. Perhaps the court will come to its senses, recognizing that, just as would be the case with incestuous and polygamist marriages (both still illegal), affirming gay marriage was, in Justice Kennedy’s words, an act of “sure error.”


1 Charlie Savage and Sheryl Gay Stolberg, “In Shift, U.S. Says Marriage Act Blocks Gay Rights,” New York Times, February 23, 2011, (accessed October 24, 2013).

2 June 26 tweet by Andy Lassner cited in Nathan Nye, “19 Greatest Tweets About the Gay Marriage SCOTUS Decision,” Policy Mic Website, June 26, 2013, (accessed October 24, 2013).

3 “The Supreme Court Ruling on the Defense of Marriage Act: What It Means,” Gay & Lesbians Advocates & Defenders (GLAD) Website (not to be confused with Gay & Lesbian Alliance Against Defamation [GLAAD]), (accessed October 24, 2013).

4 The first word pronounced is pronounced “starry”; the second sounds like ‘decisive,’ but with an ‘s’ ending.

5 “John Roberts on Abortion,” On The Issues, (accessed October 24, 2013).

6 Amy Goldstein and Charles Babington, “Roberts Avoids Specifics on Abortion Issue,” Washington Post, September 14, 2005, (accessed October 24, 2013).

7 In his words:

Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. We have also examined whether experience has pointed up the precedent’s shortcomings.

The Security of Stained Glass—Martin Luther King, Jr. (1929-1968)

From a Birmingham jail in 1963, Martin Luther King, Jr. penned his now famous response to the liberal clergymen who opposed his methods for fighting racial discrimination.1 Among his many disappointments, one stood out above all others. In the face of manifest ungodliness, the Church had been silent. King was painfully aware that when the Church is silent about sin, evil will follow. As a minister of the gospel, he was equally convinced that the Church could speak prophetically to the culture and transform it. But unless her voice was faithful and clear, she would become irrelevant. He was right.

Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership . . . I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church, felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; and too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained-glass windows . . .

In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: “Those are social issues, with which the gospel has no real concern.” And I have watched many churches commit themselves to a completely other-worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular . . .

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great-grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful—in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being “disturbers of the peace” and “outside agitators.” But the Christians pressed on in the conviction that they were “a colony of heaven,” called to obey God rather than man . . .

Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an arch-defender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent—and often even vocal—sanction of things as they are.

But the judgment of God is upon the church as never before. If today’s church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century.2

1 “Statement by Alabama Clergymen, April 12, 1963,” The Martin Luther King, Jr. Paper Project at Stanford University Website,
2 Martin Luther King, Jr. “Letter from a Birmingham Jail, April 16, 1963,” The Martin Luther King, Jr. Paper Project at Stanford University Website,

Christmas 1914—Christian against Christian?

As they looked out across no man’s land, British soldiers were alarmed at flickering lights in the German trenches. Some of the British opened fire, while others readied their ammunition and weapons for fresh combat. A German cried, “Don’t shoot!” but there seemed no reason to trust him. Then from across the way came the strains of “Stille Nacht, Heilige Nacht” (Silent Night, Holy Night), and the English realized that those lights were makeshift, Christmas tree candles. They laid down their arms and joined in the carol.1

Christmas 1914 was bitterly cold for those at the Anglo-German front in northern France and Belgium, but that was cause for rejoicing. The mud had frozen, and the troops were able to dry out. Still, it was a miserable time, for they were locked in a war of attrition, one which would take the lives of almost ten million soldiers.

In the midst of this carnage, Christmas Eve proved to be an island of peace. While there were some skirmishes here and there, they were lighter than usual, and the overwhelming majority of troops enjoyed an unofficial truce. The music ranged from “Silent Night” on a French harmonica to Handel’s Largo on a German violin. A German regimental band even played the national anthems of both Germany and Britain.

The battle for Europe had given way to the “battle of the carols”:

They finished their carol and we thought that we ought to retaliate in some way, so we sang “The First Nowell,” and when we finished that they all began clapping; and then they struck up another favourite of theirs, “O Tannenbaum.” And so it went on. First the Germans would sing one of their carols and then we would sing one of ours, until when we started up “O Come All Ye Faithful” the Germans immediately joined in singing the same hymn to the Latin words “Adeste Fideles.” And I thought, well, this was really a most extraordinary thing—two nations both singing the same carol in the middle of a war.2

Christmas dawn ushered in more of this extraordinary goodwill. As camaraderie and trust grew, opponents met in the open and exchanged such gifts as wine for cake. A German barber cut Scottish hair. One British private sent his wife a postcard with six German signatures.

Burial parties were arranged. The 6th Gordon Highlanders and the 15th Infantry Regiment, a Westphalian unit, joined in a moving ceremony for the dead. As Scotsmen, Englishmen, Saxons, and Westphalians lined up on both sides of a communal mass grave, the Reverend J. Esslemont Adams, minister of the West United Free Church, Aberdeen, and chaplain of the 6th Gordons, read the Twenty-third Psalm in English. A theology student then read it in German . . . The Lord’s Prayer followed, sentence by sentence, in both languages: “Our Father Who art in Heaven. Unser Vater in dem Himmel . . .”3

In many sectors, peace continued through New Year’s Day, in others through mid-January. Not surprisingly, the soldiers were reluctant to resume hostilities.4

Pacifists and other romanticists will cite this occurrence as evidence of the folly and dispensability of war. Certainly they are right that many wars are foolish and unnecessary, but they must ignore both man’s depravity and the demands of justice to denounce all war. There will always be Hitlers, and they must always be stopped.

This incident does, however, illustrate the scandal of supposedly Christian nations’ taking up arms against each other. Brass buttons on the leather German equipment belts read, “Gott mit uns” (“God with us”),5 and the British no doubt felt the same way about their cause. But God is not divided. Even without exploring the roots of the First World War and the rightness or wrongness of the sides’ perspectives, it is fair to say that at least one party missed the Lord’s directions, and so their involvement was deplorable. They needed to repent, not attack.

It has been said that democracies never go to war against democracies, a phenomenon borne out in history. Unfortunately the same cannot be said about nations and factions who claim Jesus as Lord. Whether at Belfast, Gettysburg, or Ypres, Christians have taken up arms against Christians and made a spectacle of themselves before a watching world—a sorry testimony, unlike the splendid testimony of carols sung across no man’s land on Christmas Eve 1914.

1 The bulk of this account is found under “Peace on Earth” in Morris Eksteins, Rites of Spring: The Great War and the Birth of the Modern Age (Boston: Houghton Mifflin, 1989), 109-114.
2 Malcolm Brown and Shirley Seaton, Christmas Truce: The Western Front December 1914 (London: Pan Macmillan, 2001), 58-59.
3 Eksteins, 111.
4 Brown and Seaton, 149. “The difficulty began on the 26th, when the order to fire was given, for the men struck. Herr Lange says that in the accumulated years he had never heard such language as the officers indulged in, while they stormed up and down, and got, as the only result, the answer, ‘We can’t—they are good fellows, and we can’t.’ Finally, the officers turned on the men with, ‘Fire, or we do—and not at the enemy!’ Not a shot had come from the other side, but at last they fired, and an answering fire came back, but not a man fell. We spent that day and the next,’ said Herr Lange, ‘wasting ammunition in trying to shoot the stars down from the sky.’”
5 Ibid., 96.

Idolatry: Not Thinking Rightly about God—A. W. Tozer (1897-1963)

A. W. Tozer served thirty-one years as the pastor of Chicago’s Southside Gospel Tabernacle (1928-1959), edited a Christian magazine, and was a prolific writer. Discerning the lack of true spiritual vitality within the Church of his day, Tozer dedicated his life’s work to calling the Church back to a radical obedience to Christ. Termed by many a “twentieth-century prophet,” his epitaph simply reads, “A Man of God.”

In his book, The Knowledge of the Holy, Tozer describes the divine attributes. Subtitled, “Why We Must Think Rightly about God,” the first chapter sets the tone for the entire work by declaring that idolatry begins in the mind and is the very place where it should be rooted out.

Let us beware lest we in our pride accept the erroneous notion that idolatry consists only in kneeling before visible objects of adoration, and that civilized peoples are therefore free from it. The essence of idolatry is the entertainment of thoughts about God that are unworthy of Him. It begins in the mind and may be present where no overt act of worship has taken place. “When they knew God,” wrote Paul, “they glorified him not as God, neither were thankful; but became vain in their imaginations, and their foolish heart was darkened.”1

Then followed the worship of idols fashioned after the likeness of men and birds and beasts and creeping things. But this series of degrading acts began in the mind. Wrong ideas about God are not only the fountain from which the polluted waters of idolatry flow; they are themselves idolatrous. The idolater simply imagines things about God and acts as if they were true.

Perverted notions about God soon rot the religion in which they appear. The long career of Israel demonstrates this clearly enough, and the history of the Church confirms it. So necessary to the Church is a lofty concept of God that when that concept in any measure declines, the Church with her worship and her moral standards declines along with it. The first step down for any church is taken when it surrenders its high opinion of God.2

1 Romans 1:21, KJV.
2 A. W. Tozer, The Knowledge of the Holy (San Francisco: HaperCollins, 1961), 3-4.

“An Elemental Moral Code”—Hugh Heclo

Hugh Heclo, a professor of political science at George Mason University, argued at Harvard University in March 2006 that American democracy depends upon Christianity. Politically, morally, and socially, the doctrines of the Christian faith nurtured democracy. While many grant that religion in general is an important cultural foundation, Heclo asserted that Christianity specifically is a religion well suited, even today, for freedom. He explains why in the following excerpt from his book Christianity and American Democracy. Christianity and democracy share a common enemy: hypocrisy.

[T]raditional Christianity comes with an elemental moral code that helps stabilize and order an otherwise chaotic democratic society. It teaches people to be honest rather than lie, to be fair rather than cheat, to keep rather than break promises, to shun selfishness, and all the rest. Of course, there are many citizens who try to behave morally without the Christian God, or any god at all. And certainly there are many immoral Christians. The point is that traditional Christianity makes it its business to ferret out religious hypocrisy. Given the temptations to misuse freedom, it is likely one will be surrounded by a democratic society that simply works better if it has citizens in it who not only try to do the right thing but who know why, because of the teachings of their religion, they are under a personal and higher obligation to actually do it.1


1 Hugh Heclo, Christianity and American Democracy (Cambridge: Harvard University, 2007), 236-237.

A Theology of Work—Archibald Alexander Hodge (1823-1886)

Archibald Alexander Hodge was a leading Presbyterian theologian and denominational statesman in the nineteenth century. The son of Charles Hodge, A. A. Hodge carried forward his father’s legacy in his role as a professor at Princeton Seminary and a trustee at Princeton College.

As the industrial revolution was changing the nature of America’s economy, A. A. Hodge challenged the idea that “ministry” was restricted to clergy and denominational officers. All of a person’s work should be presented as a holy sacrifice to God. Specifically, the Princeton theologian sought to disabuse Christians of the notion that a Christian could separate his life into two spheres: a private life of piety toward God and a public life of secular values and practices. According to Hodge, one either should demonstrate his obedience to the Lord in the marketplace or he should not accept the name Christian.

A Christian is just as much under the obligation to obey God’s will in the most secular of his daily business as he is in his closet or at the communion table. He has no right to separate his life into two realms, and acknowledge different moral codes in each . . . The kingdom of God includes all sides of human life, and it is a kingdom of absolute righteousness. You are either a loyal subject or a traitor. When the King comes, how will he find you doing?1


1 A. A. Hodge, Evangelical Theology (1890; reprint, Carlisle, PA: The Banner of Truth Trust, 1997), 280-281.