The Healing Power of Prayer and Confession


Therefore, confess your sins to each other and pray for each other so that you may be healed.  The prayer of a righteous person is powerful and effective.  James 5:16 (NIV)

You may know that James, the author of the letter from which this verse is taken, was Jesus’ brother and one of the leaders of the church in Jerusalem.

The book of James is short and, if you read it later, you will see that it has some great practical guidance about how believers should live.  There are also some parts that are hard to understand.  I chalk that up to the challenges of translating a letter written almost 2,000 years ago in another language to another culture.  In this verse, for example, I have never been sure if James is saying that physical healing depends on both confessing our sins to each other and praying for each other, or if he is encouraging two separate things that are unrelated.  Either way, we run into the problem from last week, we don’t like talking about sin in general much less confessing our sins to other people.

I agree that the idea of confessing all of our sins to others seems weird.  Except in relationships where we have a deep level of trust, we don’t share with someone all the times we have sinned throughout the day and I don’t believe that is what James is telling us to do.  But, I can confess my sin to someone when my sin has hurt them and I can ask for their forgiveness.  Just as confessing sin and receiving forgiveness is essential to our relationship with God, it is also essential to our relationship with others.  Simple confessions like “I am sorry I lost my temper, please forgive me,” “What I did was selfish, please forgive me,” and, “I’m sorry I was wrong,” can have a profound effect in a relationship.

Many smart people have written about the link between confession and physical healing and I will leave the theological discussions to them. What I do know is that there is a link between confession, forgiveness and healing in relationships.  Confession and forgiveness will mend broken relationships and make good relationships stronger.

Now, let’s talk about the other admonition in this verse, praying for each other.  Prayer is communicating with God.  Most of the time, I take for granted how remarkable it is that the creator of the universe wants to have a relationship with me.  When I pray, He assures me that I am not in this fight alone and He responds to my requests and concerns.  This is so much more than some people imagine is possible.  Take, for example, the idea of praying for healing.  For some, maybe for you, prayer for healing is a mystic process that we use to transmit our positivity to someone who is sick.  We send “healthy thoughts” or good wishes for healing.  That’s not what James is talking about.  He is telling us that we can go directly to God and ask Him to heal someone.  Not only that but he tells us, “the prayer of a righteous person is powerful and effective.”  Not powerful and effective in a magical kind of way, but powerful and effective because God hears us and responds.

Just as many people have talked about a link between confession and healing, many more have talked about the link between prayer and healing.  Again, I am not an expert on the topic, but I can share some things I have learned:

  1. God may not heal someone in the way I ask. He has a bigger view of the situation.  As I shared a few weeks ago, He has understanding beyond my ability to fathom.  You may have heard of Joni Earecksen Tada.   She was injured in a diving accident in 1967, when she was 17 years old, that left her  a quadriplegic in a wheel chair.  God did not heal her physical injuries, but used her physical “weakness” as a powerful platform from which she has shared her message of faith and trust.
  2. God may heal someone though medicine or the normal healing process. Just before this verse, James tells the sick people to call for the Elders in the church to anoint them with oil and pray for them.  Today, we have spiritualized this process and it usually takes the form of dabbing a little oil on someone’s forehead.  But, in James’ time “anointing” was pouring the oil over the affected area.  While there may have been a spiritual effect or symbolism, the oil also helped in the natural healing process.
  3. God may heal someone in a way that defies explanation. You have heard the stories of, and maybe even experienced, situations where tumors disappeared or long-time ailments went away after someone has prayed.

We can’t control God’s response to our prayers for healing and we may not always understand it.  But, we can pray and trust that God will work in the situation.

This week practice James’ direction to confess and pray.  Experience for yourself the relational and physical healing that will result.

Press On!


The Problem with “Sin”

If we confess our sins, he is faithful and just and will forgive us our sins and purify us from all unrighteousness.  1 John 1:9 (NIV)

The Bible talks about sin, a lot.  Depending on the translation you check, the word “sin” appears around 450 times.  God talked about sin, Jesus talked about sin and the prophets and apostles talked about sin.  But, in our culturally sensitive and morally relative society, the word “sin” makes us uncomfortable.  I wrote about that in an earlier devotional.

The result of our discomfort is that we talk around sin, but don’t talk about sin.  What do I mean? We want to analyze the word “sin.”  We ask, when does something go from a bad idea to a real sin?  Is it a sin if I am annoyed with something, or do I need to be really angry and lose my temper?  You may have gone through this analysis too.  Plug in other actions like stealing, lying, lust – you get the idea.  We want to quantify sin.  In our mind, we break things into “big” sins and “small” sins, serious sins and sins of little consequence.  For me, that usually means my sins are small and of little consequence and other’s sins are big and of great consequence.  And, we want to measure sin.  Do a lot of little sins equal on big sin, and if so, how many?  If I have a pile of sins, can I reduce the size of the pile by mixing in good stuff, like being nice even when I’m tired, helping somebody, or giving a dollar to that guy at the stop light holding a sign asking for money?

We don’t find any analysis of “sin” in the Bible.  Instead of talking around sin, the Bible talks about sin, and it is a different conversation.  The passage today is a good example.  John, the disciple of Jesus, writes this:

5 This is the message we have heard from him and declare to you: God is light; in him there is no darkness at all. 6 If we claim to have fellowship with him and yet walk in the darkness, we lie and do not live out the truth. 7 But if we walk in the light, as he is in the light, we have fellowship with one another, and the blood of Jesus, his Son, purifies us from all sin.

8 If we claim to be without sin, we deceive ourselves and the truth is not in us. 9 If we confess our sins, he is faithful and just and will forgive us our sins and purify us from all unrighteousness. 10 If we claim we have not sinned, we make him out to be a liar and his word is not in us.  (1 John 1:5-10 (NIV))

John doesn’t try to define sin, analyze sin, quantify sin or measure sin.  He simply makes an assumption, no one is without sin.  From the tiniest thought or action that crosses over into our definition of “sin” to the greatest, most terrible thing we can imagine, John says we have all sinned.  John isn’t alone.  The rest of the Bible says the same thing, everyone sins.  That creates a problem for us.  As John says, God is light and sin is darkness.  If we sin, what John calls walking in darkness, we can’t have fellowship with God.  That’s bad news.

But, there is good news, if we will stop talking around sin and talk about sin.  John goes on to tell us, when we admit to ourselves and to God that we have sinned, God is faithful and just to forgive our sins and remove the effect of sin on our life.

The first step to solving the problem we have with the word “sin” is to admit that we have a sin problem.  Our sin separates us from God and, until we confess our sin to God and he forgives us, the barrier cannot be removed.  When we confess our sin, God forgives us and changes our life forever.

Start today with your “self-talk” about sin.  Stop analyzing, quantifying, measuring and minimizing the things you do.  Get rid of the darkness in your life by turning on the light of confession and forgiveness.  Instead of self-justifying self-talk, try some simple God talk, “God, I’m sorry I did that, please forgive me and help me not do it again.”  See if that changes how you live this week.

Press On!


Are you reading a shortened Bible?

Let us then approach the throne of grace with confidence, so that we may receive mercy and find grace to help us in our time of need. (Hebrews 4:16 NIV)

God created the universe, made some rules for us to follow, and thumps us when we get it wrong.  Do you ever feel that way?  I do.  When I am in that frame of mind, the Bible could much shorter.  A few chapters are all you need to cover the creation and the 10 commandments.  This “shortened Bible” would also make it easier to read the Bible in a year.

But, if we spent our life with the shortened Bible, what would we miss?  We would miss that God made us so he could have a relationship with us.  He knows us better than we know ourselves and He wants us to know him.  The parts the fill in the rest of the Bible tell us about God pursuing us, chasing us, embracing us, and calling us as his children.

The writer of the letter to the Hebrews knew this truth.  He tells us how God had tried to reach us through the ages.  How God took the form of a person, Jesus, so that he could talk to us as one of us.  God understands what it is to be us, because He has lived here.  Jesus experienced all the trials and troubles that we experience, including feeling rejected by God and abandoned by the people he loved.

In the passage our verse comes from, the writer reminds us about Jesus and our verse today is a great source of hope:

Therefore, since we have a great high priest who has ascended into heaven, Jesus the Son of God, let us hold firmly to the faith we profess. 15 For we do not have a high priest who is unable to empathize with our weaknesses, but we have one who has been tempted in every way, just as we are —yet he did not sin. 16 Let us then approach God’s throne of grace with confidence, so that we may receive mercy and find grace to help us in our time of need.  Hebrews 4:14-16 (NIV)

We have access, through Jesus, to God’s throne of grace where we can receive grace and mercy.  Those are two important words.  The theological definition of God’s “grace” is God’s “unmerited favor.” God loves us, even though we have done nothing to earn it.  Merriam-Webster defines “mercy” as “compassion or forbearance shown especially to an offender or to one subject to one’s power.”

If we limit ourselves to the shorted Bible I talked about at the beginning of the post, we will miss that God didn’t just make the rules and thump us when we get them wrong.  He loves us, even though we have done nothing to earn it and He forgives us, even though we don’t deserve it.

Bad things still happen, they are a part of life.  So, what do we do?  We approach the throne of grace with confidence.  In other words, we pray.  God wants us to tell Him with our worries and our joys.  Why? Doesn’t God know everything, including everything that is bother me right now?  Yes, but that’s not the point.  The point is God wants a relationship with us.  He wants us to talk to Him about what we need, what concerns us and what we are thankful for.  And, if we watch and listen, God will respond to us.  He will meet our needs, give us peace, and give us more reasons to be thankful.  Make prayer a part of your daily routine. Here are some ideas on how to get started:

Take some now to approach Gods’ throne of grace and receive his grace and mercy.


Press On!


And the Government will be upon His Shoulders

For to us a child is born, to us a son is given, and the government will be on his shoulders. And he will be called Wonderful Counselor, Mighty God, Everlasting Father, Prince of Peace.  (Isaiah 9:6 NIV)

We are in Isaiah for a second week, and again, the passage is also in Handel’s Messiah.  Last week’s reference was to the more pastoral Comfort Ye My People.  This week you should be standing and singing when you read this, which will get some attention if you are at Starbucks.

I will include some personal confessions this morning, the first is that I love to listen to Handel’s Messiah at full volume around Easter and Christmas and sing along.  It’s not pretty, but I am by myself in my “music room” in the basement.  This week, I have not listened to the recording, but instead thought and prayed about this verse.  It is a wonderful promise.  The phrase that I keep coming back to is “and the government will be on his shoulders.” The promised son, Jesus, will be the head of the government in God’s kingdom in the new heaven and new earth.  The cable news networks, if they exist there, will refer to him as: Wonderful Counselor, Mighty God, Everlasting Father and Prince of Peace.  Isaiah goes on to tell us there will be no end to the greatness of his government and peace.

Now, a second confession. When I think of our government and our elected leaders, I don’t use any of the terms Isaiah uses.  Instead, I think “swamp” and “dumpster fire.”  I understand that Isaiah is talking about a future time after Jesus has returned and God has established His eternal kingdom.  But, though Jesus is not here in bodily form, he is here and he works through those who follow him.  This has led me to think this week about how I, and other believers, can place our government on Jesus shoulders.  This is not a political rant, so please don’t stop reading.

There is controversy within political and Christian circles about whether our nation’s founders intended to establish a government based on Christian principles.  The “Truth Project” from Focus on the Family made a compelling argument that they did.  My constitutional law profession made a compelling argument that they didn’t.  The question may be interesting for someone who likes to talk about the law.  It is irrelevant for most believers.  Regardless of the founders’ intent, we live in a democratic system and Jesus can have an impact on the government through his followers.

A third confession, as a believer, I don’t think much about my role in the political process.  In fact, there are times I dread it and actively avoid it.  I am turned off by believers on both ends of the political spectrum who want to tell me what I should think and how I should vote.  I will add a voice to that discussion that I hope will be a voice of reason and faith.

Jesus’ followers are called to be salt and light in a dark and decaying world, including our political system.  That calling may lead some to run for elected office or lead efforts to reform parts of the system they perceive as broken.  But, it should lead all of us to pray for our political leaders and elected officials.  A final confession, when I was getting ready to write this post, I had to Google the names of the House majority and minority leaders.  I can’t pray for people when I don’t even know their names.

Would you join me this week to pray for our political leaders?  Pray that God will give them wisdom, that He will help them work together, and lead wisely.  These are the top six national political leaders, you should feel free to expand your list if you like:

President –  Donald Trump

Vice President – Dan Pence

Senate Majority Leader – Mitch McConnell

Senate Minority Leader – Chuck Schumer

House Majority Leader – Kevin McCarthy

House Minority Leader – Nancy Pelosi

There will be a day when Jesus leads the government.  It will be a theocratic monarchy and not a democratic republic.  Until that day, will we take up the calling to be salt and light and pray for our elected leaders?

Press On!




Understanding No One Can Fathom


Do you not know?  Have you not heard?  The everlasting God, the Creator of the ends of the earth, He will not grow tired or weary, and his understanding no one can fathom. (Isaiah 40:28 NIV)

This simple statement about the nature and character of God is one of those “plaque-worthy” verses.  You know what I mean, you’ll find the verse on a nice plaque you hang in your house or printed on a card you send to a friend going through hard times.  It is from the chapter of Isaiah that begins with “Comfort ye my people,” which I can’t read without hearing Handel’s Messiah in the background. If you have a Bible on your phone or tablet, take a minute to read Isaiah chapter 40 before you go on because it will put the verse and the rest of this post into context.

When you see the verse in context, you find that Isaiah’s statement above in verse 28 is made in response to the people of Israel complaining, “My way is hidden from the Lord; my cause is disregarded by my God.”  That sentiment may not be “plaque-worthy,” but we have all felt it.  We face trouble and we pray and plead and seek God’s intervention to fix the problem or make it go away.  Yet, the problem continues, and we feel like our prayers are unheard.  In those situations, verse 28 is not comforting at all, it is frustrating.  God, the everlasting creator of the universe knows exactly what I am going through and He is choosing not to fix it.   Why?  Because, He has understanding no one can fathom.  He knows what is best for me.

These times of testing are difficult to go through and difficult to understand.  For a long time, I thought of God as the great professor in the sky who would teach me a lesson and then test me, so He could see if I had learned it.  “OK, Dave, this week we learn about patience.  Here’s what the Bible says about patience.  Now, here is a totally frustrating situation so I can see if you have paid attention.”  Then it occurred to me one day that God knows how I will do on the test before it even begins.  He knows me better than I do.  So, who is the test for if it isn’t for God?  It is for me.  The tests and trials I face show me where I need to grow and where I need to change.

In his letter to the Romans, Paul said, “Therefore, since we have been justified through faith, we have peace with God through our Lord Jesus Christ, through whom we have gained access by faith into this grace in which we now stand. And we boast in the hope of the glory of God. Not only so, but we also glory in our sufferings, because we know that suffering produces perseverance; perseverance, character; and character, hope. And hope does not put us to shame, because God’s love has been poured out into our hearts through the Holy Spirit, who has been given to us.” (Rom 5:1-5 NIV). Just as precious metals are refined by fire, our faith is refined by testing.

This chapter ends with another plaque-worthy section that you have probably seen but may not have had the context:

He gives strength to the weary

and increases the power of the weak.

Even youths grow tired and weary,

and young men stumble and fall;

but those who hope in the Lord

will renew their strength.

They will soar on wings like eagles;

they will run and not grow weary,

they will walk and not be faint.

(Is 40:29-31)

God may not sweep in and take away our problems.  But,  instead of stumbling and falling, He will give us strength to run and soar and, in doing so, we will learn about God’s character and develop our own.

I also want you to know that God does intervene in situations and deliver His people in times of trial.  If you have time to read a great book about God working miracles today, I recommend Miracles by Eric Metaxas.

Press On!








Update – Cincinnati – January 20

Good morning from Cincinnati.  This week the changes have been good and very noticeable.  This is a quick update of the changes and prayer requests.

My breathing is finally better. I’m not sure what happens, but I know it is a point I hit as I recover from a flare-up.  I can tell a difference in my breathing and people I talk to usually say “you sound better today.”  The break came mid-week.  It is also the sign that I can begin to taper my steroids without the relapse starting again.

I am getting the strength back in my legs.  I have done OK with the steps in the condo and they have given me some nice every-day therapy.  I have also started walking the dog a little, which the Daisy and Mary Ann both appreciate.  I will probably avoid the gym until we get beyond the flu season a little.

My follow-up appointment at the Cleveland Clinic this week was fine.  We talked about some options for changing my medication but will wait until spring before we make any decisions.  The time at the Clinic was about three hours longer than I planned because the doctor sent me off for an X-ray and blood test afterward.  Thankfully, our son-in-law Mike went up me and drove most of the way.  It makes for a long day when I need to drive 4 hours each way to get to a doctor’s appointment.

I have reached the point that the steroids are waking me up in the morning.  That is another indicator that I am getting rested and usually happen as my other symptoms decline.  As a practical matter, it means that I will have a week or so of early mornings when I can write blog posts and to other stuff.

Please continue to pray for my recovery.  My biggest concern is avoiding the flu and the respiratory infections that are common this time of year.  Pray for my law practice.  Specifically, that I will meet new clients.  Pray that God will continue to use this experience to teach me and give me the opportunity to share my experience with others.

If you would like, please sign up to receive notices of blog posts.  It is in the upper right hand corner of this page.  I will be doing a weekly devotional post on Sundays and posts on other topics as things come up.

Thanks for your continued support and concern.

Press On!




Make 2018 the Year of the “Do”

Genesis 1: 1 – In the beginning God created the heavens and the earth.  

Our culture has fully bought in to the idea of moral relativity.  Which means that it is up to each person to decide what is morally right for them.  Usually it is subtle, “Well, I wouldn’t do that, but he needs to make his own choices and I can’t judge him.”  Like me, not everyone has bought into the idea of relative morality. They believe there are moral absolutes; things that are right and wrong regardless of what the rest of the world thinks.

Folks who believe in relative morality get along pretty well with all the other moral relativists, but they butt heads with the moral absolutists.  Because, the moral relativists hold back one absolute, which is, the people who believe in moral absolutes are always wrong. You don’t need to follow the argument very far before it begins to unravel.  If I don’t believe in moral absolutes, I cannot believe that moral absolutes are wrong. (The best I can say is that I have not chosen to accept moral absolutes.) To believe there are no moral absolutes is, itself, a moral absolute, and my position collapses.

What the moral relativists are really saying to the moral absolutists is, “In my universe, I have the moral authority to condemn you for holding moral absolutes that disagree with my moral decisions.  But, you don’t have the moral authority to disagree with my moral decisions.”

That’s where today’s verse comes in.  God’s response to the moral relativist is, “It’s not your universe. I made the universe and I included physical and moral laws.  You can’t change the moral laws any more that you can change the physical laws.” If we believe Genesis 1, one of the conclusions that follows is that God is the self-existent first cause of the universe.  Which means that a thing is good if God has made it and it is right is God has said it is right.

With the heady introduction invoking God’s moral authority, this is where you expect me to give you God’s big moral “don’t” list.   You can take the list into the morally relative world and club it into submission by pointing out the logical inconsistencies with its position.  The problem is, that doesn’t work.  Following a big “don’t” list may make us feel morally superior, but it won’t change the world.

Instead, let me kick off your week with a short moral “do” list.  The great thing about this list is that they will change the world and most moral relativists won’t condemn you for doing them.  Do these things and see how they change your life and the lives of those around you:

  1. Love God with everything you have;
  2. Love your neighbor as yourself;
  3. Feed and clothe the poor;
  4. Visit those in prison;
  5. Care for windows and orphans,
  6. Go into the world and make disciples.

OK, you’d feel better if I also gave you a couple “don’t” ideas:

  1. Don’t worry about what you will wear and what you will eat, God takes care of the birds and flowers and He will take care of you.
  2. Don’t grow weary of doing good.

As you read the Bible, you can develop your own moral “do” list.  Pick one or two at a time and focus on them until they become habits. Then move on to something else.

Make 2018 the year of the “do.”

Press On!




The Forbidden Fountain – An Obergefell Parable

Corwin spent a troubled night trying to understand why his Christian friends did not want to provide their services for same-sex weddings.  They were good at what they did; photographers, bakers, dress makers and the like.  They seemed like good people.  They went to church and talked about how they loved God.

As he drifted back to sleep, Corwin found himself walking along an abandoned road.  He came upon an old playground and, to his surprise, his Christian friends were there playing with a group of African-American children.  The playground appeared to be someplace in the southern United States and the time was around 1965.  The swings and slides were old and you could still see that the drinking fountains had been labeled “White” and “Colored” from the days of “separate but equal.”

He stood and watched his friends play with the children for a long time and the day began to grow warmer.  The children became thirsty and walked to the drinking fountain that was labeled “White” and his friends stopped the children and took them to the drinking fountain labeled “Colored.”  He was confused and angry.  Didn’t his friends know that the law had changed?   These children had every right to drink from whatever fountain they wanted.

Corwin walked onto the playground and his friends welcomed him and asked if he would join them.  In his anger, he criticized the man for forcing the child to follow the old ways of discrimination.  Didn’t he know that the law had changed?  Didn’t his God call him to a higher standard than that?  His friend just said, “This is your first visit to the playground?  Let me explain.”

He told Corwin that the playground had been abandoned after the law changed.  It was the only place these children had to play before and they were left without a safe place.  So, his friends had been slowly reclaiming the playground, fixing the equipment, and keeping the grass mowed.  They also came over to play with the children several days a week.

“Yes,” he said, “that was great, but what about the drinking fountain?  How could you force the children to drink from the Colored fountain?”  His friend explained that the two fountains were fed by separate water lines.   They believed the water line to the White fountain had developed a leak and the water was contaminated.  Children who drank from that fountain had sometimes become sick.  They wanted to turn the fountain off.  But, the city insists that the water is fine and won’t let them turn the water off.  Luckily, the water line that fed the Colored fountain was still good and the water was fresh.  The children could drink all they wanted from that fountain and no one ever got sick.  “Now,” he said, “we ask them to drink from the old Colored fountain because we know something about the water that the children don’t know.”

The playground and children faded away.   Corwin was standing with his Christian friend outside the bakery that his friend owned.  The baker had recently told a gay couple that he would not bake the cake for their wedding.  Corwin couldn’t understand why.  Didn’t his friend know that the law had changed?  Why was he clinging to the old ways?  Does the Bible say that a baker can’t make a cake for a gay wedding?

The baker explained that the question isn’t that simple.  The Bible says that intimate relations between two people of the same sex is a sin.  And, if a person chooses to sin intentionally over and over again, they could be separated from God forever.  To the baker, that is the worst thing that could ever happen to someone.  “So,” Corwin said, “to you, helping a gay couple with their wedding is like helping a child drink from the contaminated fountain?  You don’t know for sure that it could hurt them, but you believe that it could be very serious and you don’t feel right about it.”  The baker nodded.

Corwin was back in the park.  A child was pulling on his hand and asking for help getting a drink from the White fountain.  Corwin reached down, picked her up, and turned the handle.  The water bubbled up cool and clear.  It didn’t look bad.  He paused.  “You know, my friend the baker thinks this water could make us sick.  I’m thirsty too, how about if I carry you to the other fountain and we get a drink there?’

To go to the Oberfefell resource page, follow this link.




Obergefell – The Dissenting Opinions

We won’t spend the time going over the dissenting opinions that we spent on the majority opinion.  The dissenting opinions make for interesting reading if you want to get into some of the legal rebuttal.  But, they aren’t the law.  I will give an overview of the dissenting opinions   If you see something interesting in the summary, you can download the decision in PDF format by following the link at the end of the post and read the part that interests you.  The “sound bite” wars that have popped up over this decision have been unflattering for both sides.  If you want to be part of the dialog, take the time to read the decision, including the dissents, and understand both sides.

Chief Justice Roberts.  At 29 pages, Justice Roberts’ dissenting opinion is as long as the majority opinion.  Personally, I found it easier to follow the organization in C.J. Roberts’ dissenting opinion.  Your mileage my vary.  After an introduction similar to Justice Kennedy’s, he begins his argument with the “keystone” Due Process argument used by the majority.  The says that the Solicitor General of the United States, though supporting the Petitioners, “disowned that position [the Due Process Clause argument] before this Court.  The majority, nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause.”    He then cites examples of how the approach used by the majority in Obergefell had been used by the Court in the past.  If you read the dissent and are familiar with American legal history, you will recognize some of the cases and, I think, agree that the decisions he cites were later recognized as flawed or just wrong.  He also responds to the “definition of marriage” line of cases like Loving and the “privacy” line of cases, like Griswold and explains why he does not believe they apply in Obergefell.

Justice Roberts raises two points that I plan to talk about in future posts.  The first is that the majority’s reasoning can be applied with equal force to polygamous marriage.  I had also reached that conclusion before I finished reading the majority decision.  The second is that, by resolving this issue through the Court, they have short circuited the process that could have worked out accommodations for religious practice.

Justice Scalia.  Justice Scalia begins his dissent with “I join the Chief Justice’s opinion in full,  I write separately to call attention to this Court’s threat to American democracy.”  He makes a compelling argument and calls the decision a coup.  You may not agree with him, but you don’t need to guess what he is thinking.

Justice Thomas.  Justice Thomas begins his dissent with “[t]he Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation is built.”  There were two points that I thought Justice Thomas made well.  The first is that the focus of the Due Process Clause cases has been to prevent the States from taking rights without due process of law and not to force the States to grant rights as the clause is being applied in Obergefell.  The second is that “the majority’s decision threatens the religious liberty our Nation has long sought to protect.”

Justice Alito,  Justice Alito begins his dissent with “[u]ntil the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.  The question is these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them.  It does not. The Constitution leaves that question to be decided by the people.”

The theme of all the dissenting opinions is that the States have been given the responsibility to define marriage and these cases do not present a constitutional issue.  Again, I encourage you to read them.

As I have said earlier, there are a few more topics I would like to cover, like the application of the case to polygamous marriage and whether their is a need to accommodate sincerely held religious beliefs.  A lot of “sound bite” thinking has surfaced on both sides of the issue.  Folks are trying to ward of using Obergefell to support polygamous marriage.  They would like to see the decision as an “adjustment” in our view of marriage and not a seismic shift.  As you will see, I fall into the seismic shift camp,  Also, it seems clear to me that some of my Christian friends don’t completely understand how this case does, or may, affect their religious freedom.  There has been talk about “civil disobedience.”  Please, don’t start burning anything just yet.  If we will stop shouting and listen, there may be a chance to be part of the discussion.

If you have been reading along and have questions or comments.  Please leave them.  I would also like to know if you have ideas for other topics to cover.

To get to the page of Obergefell resources, including other posts and a link to the opinion, please follow this link.


Obergefell – The Majority Opinion – The Equal Protection Argument and Cleaning Up Loose Ends

In my last post, we covered the keystone argument of the majority opinion.  Justice Kennedy said that, in defining the right to marry, the Supreme Court had identified essential attributes of the right based in history, tradition, and other constitutional liberties inherent in marriage.  He then described each essential attribute and concluded that the attributes applied with equal force to same-sex marriage as to opposite-sex marriage.

While Justice Kennedy says that the decision is based upon both the Due Process and Equal Protection clauses of the 14th Amendment, the Equal Protection argument is given very abbreviated treatment.  My Constitutional Law professor would say that he gave it “short shrift.”   He argues that there is an interrelation of the two protections, each helping to supplement our understanding of the other.  The dissenters were not persuaded by the discussion and I don’t have the expertise in constitutional law to have my own opinion.  He gives several examples of cases in which the two clauses protected different shades of rights or the same rights in different ways.  It is an interesting discussion that most of us will need to take at face value.   The bedrock of the decision is the analysis of the four essentials in the Due Process argument.  When the Court returns to this question again, that is where it will look for guidance.

I will take the final points in the decision out order now, because it will make more sense to conclude the post with the conclusion of the decision.

In Sections IV and V of the decision, Justice Kennedy addresses the second question the Court agreed to answer and three remaining issues that, apparently, had been raised in the oral arguments and over 140 briefs that were filed in the case.  First, he responds to the Respondents’ (the States opposing same-sex marriage) arguments that the issue of same-sex marriage should be returned to the state democratic process for the people to decide.  Justice Kennedy has already responded to this argument in the decision and he simply repeats the response here.  Basically, the Court has found a Constitutional right to marry and a Constitutional right trumps the democratic process.  “This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.'”

Next, Justice Kennedy gives a nod to the religious objections to same-sex marriage.  Admittedly, religious belief is not and cannot be a consideration in reaching a legal decision.  But, it is a tender spot that he felt the need to address.  In my opinion, he didn’t address it well.  “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost sincere conviction that, by divine precepts, same-sex marriage should not be condoned.  The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”  Or paraphrased, the religious folks also have the constitutional right to continue to believe in their old outdated view of marriage.

While, as a Christian, I appreciate Justice Kennedy’s kind and condescending comments, he misses the point made by the States and emphasized by the dissenting opinions.  The issue of same-sex marriage includes some complicated issues.  I will talk about the issues in detail in later posts. A continued public debate of the question of same-sex marriage through the democratic process would have provided a forum to resolve those issues together.  That discussion has now been cut off and any solutions will need to come through the more expensive and less responsive practices of litigation and legislation.

Finally, Justice Kennedy concludes with a short discussion of the Court’s holding that States must recognize same-sex marriages validly performed out of state.  This was the second question that the Court agreed to take up and the decision follows logically from the finding that there is a constitutional right to marry. But, in the course of his discussion, he feels the need to knock down the States’ argument that “allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages.”  Wait,  What?  REALLY?  Out of all the oral arguments, over 140 briefs and the best legal minds of the country arguing this case, this is the second best argument that Justice Kennedy could find to knock down?  (The first is that the decision should be left to the democratic process, which he knocked down several times.)  He gives this discussion about a page in the decision and I really don’t know what to make of it.  If it is really the second best argument he heard, then the States did a poor job.  It feels like he just wanted to knock down a ridiculous argument and make the Respondents look bad,

This brings us back around to the Court’s finding and holdings.  The Court found “that the right to marry is a fundamental right inherent in the liberty of the person,  . . .”  The Court then applied its finding to the first question it agreed to answer and held that “under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and liberty [the right to marry].”  The Court also held that the Constitution requires States to recognize same-sex marriages validly performed out of State.

In the next posts, we will look at the dissenting opinions.

To read all the posts in this series and for other resources, including a copy of the decision in PDF format, please follow this link.