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“Ruinous Consequences for Religious Liberty” — A Prophetic Warning from Two Supreme Court Justices

But Justices Alito and Thomas have now, with piercing clarity, levied a full indictment against Obergefell. Make no mistake, these two justices were drawing a line in the sand. In the Constitution, you will find a clear protection of religious liberty—you will not, however, locate a right to same-sex marriage. Yet, in 2015, the Court invented a set of rights nowhere enumerated in our nation’s governing document that has fostered an unavoidable collision between the LGBTQ agenda and religious freedom.

Their statement, as expected, received backlash from the left. Yale Law School professor William Eskridge said, “It is alarming that there are justices on the Supreme Court who want to overrule Obergefell, which is a precedent the Court has reaffirmed and which hundreds of thousands of couples have relied on to seal their unions and matrimony.” The Guardian, a liberal newspaper out of London, cited attorney Chase Strangio with the American Civil Liberties Union, who argued that stare decisis—the judicial principle of applying precedent—“will not protect even recently decided cases. The brazenness of the rightward direction of the court is a threat to even the most basic expectation of legal protection.”

We dare not miss Strangio’s argument: Even if a case were decided incorrectly and stood on no Constitutional foundation, it should stand. After all, it has now created a right upon which some Americans depend. Never mind the consequences to religious liberty. Never mind our Constitutional order. All must be subservient to the newly invented sexual liberties.

[albertmohler.com]

KeithThroop 9 Oct 7
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2 comments

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Is Strangio arguing from a "living constitution" framework?

As I see the situation, rights "recognized" under the 9th amendment must not contradict constitutionally enumerated rights, such as religious freedom.

I would also pose the question, "To whom does the constitution grant the authority to recognize rights not enumerated?" As far as I can tell, it doesn't, but in my opinion, congress would be best positioned to do it, through legislation.

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Rights are not granted by the Constitution. The Constitution is about restrictions on government. The sole reason for the 9th Amendment was to ensure it.

The entire argument that courts 'find rights where the Constitution is silent' is ignorant of the above - or purposefully so.

This is not the correct interpretation of the 9th Amendment. The 9th Amendment says that the rights of the people are not limited to those specified in the Constitution.

[ushistory.org]

@TyKC. And does it say WHO is to declare those "rights" , when they are Not to be found in the Constitution? No. It does not say, therefore any one can make up a right, and having enough political clout, can have the Supremes declare it a right! You want other rights, The legislatures are the place to make them so!

@TyKC I suggest you read Madison's commentary on the 9th.

@TyKC, @Machiavelliwar The Legislature provides for 'legal rights protected by law', it does not create rights - they exist outside the law and government. I don't need political clout to 'create' a right, say....the right to seethuma...it exists if I can assert/express it. I might need political clout to PROTECT the right from government interference - or to define it as it applies to other rights that may or may not infringe or be infringed upon.

Rights are asserted by those with the knowledge, ability and resources to do so. Once asserted by ONE person, they are available to anyone else, and EVERYONE else so capable.

Courts 'recognize' rights, they don't create them. The right to privacy was not created by the SCOTUS, it was recognized by it. The laws 'giving' someone the right to marry other was not created, it was recognized and protected by the Courts.

Both the Right and the Left have significant problems when it comes to 'rights'.

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