The Supreme Court is soon to decide a case that could potentially impose same-sex marriage as a nationwide civil “right.” During one exchange in oral arguments in the case, Obama administration Solicitor General Donald Verrilli was asked by Justice Alito whether a religious school could lose its nonprofit status if it held that marriage is between one man and one woman. Here is the solicitor general’s response: “It’s certainly going to be an issue. I don’t deny that. I don’t deny that, Justice Alito. It is it is going to be an issue.”

That certainly sounds like a “yes.” Will it end with religious schools? What about churches? Will Christian churches lose their nonprofit tax status if they hold firm to one of their foundational beliefs—a sacrament of their faith?

It is no exaggeration to say we are at a tipping point of one of the pillars of the American founding: Religious liberty. Can religious liberty be sustained in the America of today which understands itself, and the idea of liberty, in a different way than our forefathers did? John Adams, that venerable founder of our republic, once wrote that we are “a government of laws, not of men.”

To understand this statement, we need to understand what Adams meant when he used it. This idea of the rule of law, or of a government of laws rather than man, goes back to Aristotle. In his Politics, Aristotle makes it clear that law should govern a society, and men, even the good and qualified, should be only “guardians and ministers” of it. We see this idea again in Livy, when he writes, “Imperia legum potentiora fuerunt quam hominum” (roughly translated: government/command of laws is stronger than that of men). Why was this concept—already ancient by the eighteenth century—so important to the founding of our country, and how did they understand this concept?

We Need the Rule of Law Because We Are All Different

The Founders understood certain things when they established our republic. In “A Defense of the Constitutions of Government of the United States of America,” Adams explains the need to have three branches of government, two in the legislature and one in the executive, with a judiciary to check all three. (I am using Adams’ use of the word “branches” here to indicate separate legislative houses as well as the executive, counter to our common contemporary understanding of the three “branches” as including the judiciary.)

He defends the need to set up the republic in this way based on this idea of a “government of laws,” and on Machiavelli’s warning in “Discourses on Livy” that “men never do good except out of necessity,” and that “in every republic there are two different tendencies, that of the people and that of the upper class, and that all of the laws which are passed in favour of liberty are born from the rift between the two.”

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