A Christian Person’s Identity after Obergefell v Hodges – by Will Wagner


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

Yet to all who did receive him, to those who believed in his name, he gave the right to become children of God— John 1:2 (NIV)

…he predestined us for adoption to sonship through Jesus Christ, in accordance with his pleasure and will— Eph 1:5 (NIV)

But whoever is united with the Lord is one with him in Spirit. 1 Cor. 6:17 (NIV)

So God created mankind in his own image, in the image of God he created them; male and female he created them. Gen 1:27 (NIV)

Now you are the body of Christ, and each one of you is a part of it. 1 Cor. 12:27

Behold, I send you forth as sheep in the midst of wolves: be ye therefore wise as serpents,.. Matt 10:6

In the recent U.S. Supreme Court Obergefell case, five justices operated outside the rule of law to create a new purported Constitutional right to “personal identity.”  By design, the LGBTQ activists advocating for this right sought to destroy the Biblical concepts of marriage and family, while reaffirming a judge-made legal doctrine used to strike down laws prohibiting abortion, partial birth abortion, and other unhealthy, dangerous, and immoral conduct. As I have written elsewhere, Federal and State officials hold considerable Constitutional authority to respond to the Court’s illegitimate use of the judicial power here. See https://www.slgwitness.com/?s=strategy . Even if Federal and State officials fail to use this Constitutional authority, litigation options provide the opportunity to undermine the deleterious impact of the Court’s ruling.

The Supreme Court’s ruling judicially created a new purported Constitutional right of “personal identity”. While some individuals find their identity in their sexuality and sexual preferences, other people find their identity elsewhere, including in their sincerely held religious beliefs. Tactical litigation utilizing this truth provides a new way to protect Christian conscience while using the Court’s newly created right as a shield against those who seek to use the law to persecute and oppress Christian people.

For example, a fair reading of the Obergefell ruling offers opportunities for fair-minded courts to rule anti-Christian discrimination provisions unconstitutional. Federal, state, and local authorities increasingly seek to interfere with the exercise of religious conscience by adding special Sexual Orientation/ Gender Identity (SOGI) classifications to everything from municipal ordinances, to licensing requirements, to professional codes of conduct, to public accommodation laws, to government contracts, etc… If enforced by government action against Christian people, a powerful argument exits that these provisions unconstitutionally infringe upon the “personal identity” liberty judicially-created by the United States Supreme Court in Obergefell.

In Obergefell, the justices in the majority held that “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Here the Supreme Court expressly explained that this judicially-created fundamental liberty right includes “most of the rights enumerated in the Bill of Rights,” and that “these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Thus, although not covered in media reports, the Court’s judicially-created constitutional right of self-identity clearly comprehends factual contexts well beyond the same-sex marriage issue.

The Supreme Court determined that its judicially-created right of personal identity is found in, and protected by, the Due Process and Equal Protection Clauses of the 14thAmendment to the United States Constitution. The Obergefell majority opinion further explained that

“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.”

To be sure, in the factual context of the case, the Obergefell decision stated that for some individuals “personal identity” may come from a person’s intimate sexual orientation. And these individuals can certainly be expected to haul Christian people into court contending that their exercise of religious conscience unconstitutionally discriminates.  The Court’s ruling clearly comprehends though, that the judicially-created liberty extends beyond the contentions of the LGBTQ community. Indeed, the Court clearly held that an individual’s “personal identity” may come from non-sexual personal choices, including religious choices. Many Christian people, for example, find their identity in Jesus Christ and the ageless sacred tenets of His Word in the Holy Bible. For followers of Jesus, it is undeniable that it is the personal choice most central to their individual dignity and autonomy. Indeed, for the Christian person, it is the intimate choice that ultimately defines their personal identity and beliefs.  A Christian person whose identity inherently exists in their intimate religious faith orientation, is entitled to at least as much constitutional protection as someone who finds their identity in their secular sexual preferences.

Beyond any First Amendment religious liberty protections that exist, therefore, a Christian person now has an additional, judicially-created fundamental right to his or her religious self-identity — grounded in the 14th Amendment liberty clause.

The Court’s judicially-created right to self-identity now provides Christian people greater constitutional protection than previously existed prior to the Court’s ruling. State action must not require or compel a Christian citizen to facilitate, participate in, or provide services which are contrary to 1) a Christian person’s self-identity rights secured by the 14th Amendment, or 2) their freedoms of expression and religious conscience protected by the 1st Amendment. This is especially so when one additionally considers the Court’s prior holding in Wooley v. Maynard, that the government cannot compel a person to disseminate a message or participate in a ceremony which violates a person’s freedom of speech rights secured by the 1st Amendment.

Thus, if government applies SOGI provisions against Christian people in ways that violate their religious speech, conscience, or identity, government violates not just the First Amendment, but also the judicially-created constitutional rights created by the U.S. Supreme Court in Obergefell.

About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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