Marriage in the Balance
6/1/2015Matthew J. Franck
In what seems like a bewildering whirlwind of social and political change, the United States is now on the brink of a Supreme Court ruling that could change the legal meaning of marriage. In short, the court could reject the universal understanding of marriage that has prevailed for millennia in favor of the novel idea that two men or two women can marry each other.
On April 28, the Supreme Court heard oral arguments in a case from Ohio, Obergefell v. Hodges. About 150 amicus curiae (“friend of the court”) briefs have been submitted to the Court, with almost equal numbers on each side of the issue before the justices. Most observers expect a closely divided Court, with a decision anticipated in late June. All eyes are on Justice Anthony Kennedy, not an entirely predictable swing vote in this case, since he asked both sides tough questions during oral arguments.
The high court’s 1973 decision in Roe v. Wade, which legalized abortion for any reason at any time during pregnancy, is the template for the ruling that same-sex “marriage” advocates now seek. Like Roe, a ruling against the power of states to restrict the definition of marriage to one man and one woman would privilege adult desires over the rights and needs of children on the basis of a tortured reading of the Constitution.
IMPOSITION BY THE COURTS
How did our society come to the edge of this precipice? A complete answer to that question would require a lengthy tour through the last century’s social revolution in sexual mores, marriage and family from the introduction and acceptance of contraception to the legal “reform” that gave us no-fault unilateral divorce to changing attitudes about “sexual orientation” and “gender identity.”
The shorter version of the story begins in the 1990s, when state court rulings in Hawaii and Alaska made it appear that those states would soon have same-sex marriage imposed on them by judges. In response, some states began to strengthen their marriage laws and even to embody the norm of marriage between one man and one woman in their state constitutions. Meanwhile, the U.S. Congress passed, and President Bill Clinton signed into law, the Defense of Marriage Act in 1996 in order to uphold the conjugal meaning of marriage in federal law and to ensure that no state would have to recognize same-sex marriages from other states. When the high court of Massachusetts imposed same-sex marriage on that state in 2003, defenders of marriage redoubled their efforts to give constitutional protection to marriage at the state level.
In a decade and a half, voters in 35 states directly addressed the future of marriage in statewide referenda, and in 32 of them voted to protect the conjugal meaning of marriage, usually in their state constitutions. In these referenda, U.S. voters chose to uphold the traditional understanding of marriage 60 percent to 40 percent, during a period when elite voices in the media and academia relentlessly preached that everyone should get “on the right side of history.”
How, then, are same-sex marriages being licensed in a majority of states today 35 in all, plus the District of Columbia and parts of three more states?
Same-sex marriage has been recognized by representative or democratic lawmaking in just 11 states plus the District of Columbia. In five states (and part of a sixth), state courts have interpreted the language of state constitutions to recognize same-sex marriage as a civil right. In the remaining 19 states (and parts of two more), federal judges have claimed to be responding to the demands of the U.S. Constitution.
All but one of the federal rulings redefining marriage have occurred since the Supreme Court struck down a major part of the Defense of Marriage Act in the United States v. Windsor case of June 2013. (The one exception is a federal court’s 2010 judgment against California’s Proposition 8, which the Supreme Court left in place in a decision on the same day as Windsor.)
The judges in these federal cases claimed to be acting on the basis of the Supreme Court’s precedent, despite the fact that Windsor did not discuss the merits of traditional marriage law in the states.
In recent months the Supreme Court let each of those rulings stand without further review, until the judges of the Sixth Circuit (covering Michigan, Ohio, Kentucky and Tennessee) decided to uphold those states’ marriage laws, forcing the justices to resolve a division of opinion among the lower courts.
Will a majority of the Supreme Court justices look out at their own handiwork the widespread judicial imposition of same-sex marriage and declare that this is where “history is going,” or will they respect the people’s right to control the lawmaking process on such a momentous question?
If the court rules that the 14th Amendment invalidates laws defining marriage as being between one man and one woman, it could be the most divisive decision since Roe v. Wade.
Many have argued that the Supreme Court, by intervening in the politics of abortion to invent a constitutional “right” to it, went beyond its legitimate authority and did itself harm as an institution. For more than four decades, the Roe v. Wade decision has led to a widening perception that the Supreme Court is not truly a court of law but rather a political institution without the accountability of our elected officeholders. Roe’s legacy has poisoned the process of Supreme Court nominations; it has made some good citizens grow cynical and question the justice of the Constitution itself. It has divided our parties like no issue since slavery.
A decision redefining marriage would compound all of these problems, dealing another blow to the Court’s legitimacy, the Constitution’s integrity and the rightful political authority of U.S. citizens. This could be avoided by a Court that resolves to respect the Constitution’s limits on its own power.
WHAT WILL THE FUTURE HOLD?
In practical social terms, a ruling in favor of same-sex marriage would be disastrous for the fundamental social institutions of marriage and family. It would send the message that sexual complementarity, the union of man and woman as “one flesh,” is not what makes a marriage, despite what all cultures, religions and legal systems have held throughout human history that is, until the last 15 years. It would legally endorse an understanding of marriage that prioritizes the often-transient emotional desires of adults over the needs of the next generation. It would send the message that children can do without a mom and a dad, not by unfortunate circumstance but by the deliberate choice of adults. And it would further reduce children to mere commodities that someone has a legal right to acquire through means such as assisted reproductive technologies.
Having jettisoned one of the most basic norms of our marriage law, sexual complementarity, it would also raise the question of what is next. After all, norms like permanence, exclusivity and monogamy are also tied to the conjugal understanding of marriage. Will consensual polygamy and polyamory (group marriage), explicitly temporary or “trial” marriages and even incestuous marriages eventually have to be recognized as well? It would be hard to say what “limiting principle,” as the lawyers call it, prevents us from going all the way down a slippery slope to these results.
The nationalization of same-sex marriage would be bad as well for religious freedom, as the U.S. bishops are keenly aware. Recent Supreme Court decisions such as Windsor have already sent the message that those who are not on board with the postmodern sexual revolution in all its manifestations are “bigots” and guilty of unjust “discrimination.” This trend would worsen with a ruling for same-sex marriage.
Already, Catholic Charities in several states and localities have been driven out of the vital work of adoption services because they will not place a child with anyone but a family headed by a married man and woman. That phenomenon could become a national one, to the detriment of thousands of children.
Would Catholic colleges and universities also have to treat same-sex couples as married for purposes of employment benefits and student housing? Would dioceses, parishes and other arms of the Church be affected by new norms of “anti-discrimination” in employment and public accommodation? Moreover, what will happen to the many faithful lay men and women who want to live and work in the public square in accordance with what the Church teaches about marriage, family and sexual morality?
Already we see cases in which entrepreneurs in the wedding-service industry are being targeted for penalties and “re-education” if they will not bake cakes, arrange flowers, or take photos for a same-sex “wedding” ceremony. Here Catholics are in the same predicament as orthodox believers in many other faith traditions under pressure by state power to betray their religious beliefs.
The stakes for Catholic education are particularly high, since it could be considered educational malpractice to continue teaching what we know to be true. Changing the legal definition of marriage could endanger scholarships, financial aid and the tax-exempt status of Catholic schools at every level, not to mention accreditation and the right to award diplomas and degrees.
No doubt some readers will dismiss this reasoning as alarmism, rather than as simply looking at our possible future with eyes wide open. But whether the Supreme Court gets it right or wrong, we have our work cut out for us. We must pray now and always for justice, freedom and the wisdom to respond to great cultural upheavals with loving kindness toward all our neighbors, while also living as witnesses to the truth of the human person made in the image of God.
If the legal meaning of marriage is changed, we must peacefully protest with all the resources we can command marching, persuading others and speaking the truth. We must think creatively about how to undo what has been done, politically, legally and socially. And we must always defend our right to live and speak as our Catholic consciences direct us to live and speak, as individuals and as the Church.
Even if the Supreme Court does the unexpected that is, if five or more of the justices vindicate the right of the people to defend marriage and family in the law of the land we will still have plenty to do, not only in political life but also in our everyday Christian witness. Our country’s culture of family and faith is under siege on many fronts. All around us, starting in our own parishes, opportunities abound to do the work of the new evangelization. We are charged with nothing less than the renewal of a culture of life and love, and the proclaiming of the risen Christ, never afraid, never tiring in his service.
MATTHEW J. FRANCK is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, N.J., and a member of Princeton Council 636.