The Catholic Thing
The Judges Do Iowa Print E-mail
By Hadley Arkes   
Tuesday, 14 April 2009
A note to readers: Thanks to all of you who responded to our appeal for support yesterday. If you would like to be reminded why you should support The Catholic Thing just look at today’s column by Professor Arkes on Iowa or tomorrow’s by Professor McInerny on the Apocalypse. What more proof do you need? – Eds.

Why should it have been a surprise? It was well understood, even before November, that the election of Barak Obama would be taken as the green light for judges throughout the country to plunge ahead to install same-sex marriage. And yet even people seasoned in law professed to be jolted last week when the Supreme Court in Iowa – Iowa! – voted unanimously to overturn the state’s version of the Defense of Marriage Act. The statute had merely stated anew that a “marriage” meant only a legal union of one man and one woman as husband and wife.

There has been much weeping and gnashing of teeth over the “reasoning” set down by the judges in Iowa. But the story that has not yet been told is just what this outcome revealed about the poverty of what passes these days as “conservative jurisprudence.” The conservative jurists have been famously dismissive of “natural law,” to put it mildly. They prefer to appeal to understandings long settled in the historical tradition. The liberal response has been to invoke Justice Holmes: that it was “revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV.” The judges in Iowa could then rightly point out that “tradition” could have been invoked quite as readily to defend slavery, racial segregation, and the barring of women from the practice of the law when those conventions were challenged.

At those moments, when a tradition is challenged, it is necessary to give the reasons that sustain them. As the Congregation for the Doctrine of Faith once argued, there has not always been an Italy or a Hungary. But as long as there are human beings there will be men and women. The bringing forth of offspring marks the telos, or natural purpose, of sex. Something needed to be said about marriage as something good in principle as a framework for the begetting of children, even if no children are begotten in the marriage. Is it better to have children spawned through casual matings, or better to have them come into the world in a framework of commitment; a framework in which the parents have foregone their freedom to quit this association as it suits their convenience?

But when those reasons are not brought forth, the judges may conclude, as they did in Iowa, that this preference for one man and one woman is but an “historical prejudice,” which can no longer explain itself. And that in turn sets the stage for invoking the equal protection of the laws: Gay and lesbian couples suffer “discrimination,” they are barred from the marriage that is available to couples composed of members of the opposite sex. As the court in Iowa observed, the laws in Iowa bar marriage to couples who are similarly situated: couples who profess to be in love and “committed.” The law then marks the “exclusion of a class of Iowans from civil marriage.” By this standard, the law would discriminate also against the father and daughter who wish to marry, but then too the father and son, and of course the polygamous or polyamorous ensembles. They too pose the question of why their love cannot be honored in marriage.

But those are the kinds of tests that the judges would face if they had to face the question in principle – the question of why some discriminations are justified and others not. When they are “justified,” there is no wrong, no violation of the equal protection of the laws. And yet the judges in Iowa swept past that discipline of judging the justification for discriminations in the law. They settled into the comfort of holding that it is simply a matter of the historical shift in sensibility: “A classification persists until a new understanding of equal protection is achieved.” We all know better now than to make adverse judgments on the homosexual life.

A separate story could be told here on the futility, for the conservative side, of putting so much weight on “social science” evidence, on the value of children having mothers and fathers. There are perils in shifting from statements in principle to generalizations drawn from the social sciences, and the judges manage to flick them aside. But the court in Iowa gave this matter yet another twist.

Whether the arguments from social science were compelling or not, they were at least arguments, accessible to people of all political and religious persuasions. But that didn’t fool the judges. The lawyers pretended to argue with “public reasons,” but judges saw “the reason …left unspoken by the county: religious opposition to same-sex marriage.” And there we have the final, telling conversion: The state offers an argument based on reasons that do not appeal to faith or revelation. The judges insist that they detect a moral understanding grounded in religions conviction. Hence, the law was imposing religious beliefs on those who don’t share them. In this manner, the moral reasons underlying any of the laws – the laws on homicide, the laws on the neglect of children – can be converted into religious beliefs and barred under the separation of church and state. And in this way lawyers drawn from the best law schools turn themselves into moral relativists in fact. Relativism becomes, in these short steps, the operating mode of the law.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College.

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Comments (8)Add Comment
What Next?
written by William Dennis, April 14, 2009
It seems to me that this Iowa ruling is the ultimate in twisted judicial thinking. The claim that tradition, in this case prejudiced by religious concepts, violates the constitution is a repudiation of common sense. Perhaps these judges need to review anatomical architecture which cannot be blamed on tradition or religion. The architecture of human genitalia surely dictates what goes where. Sodomy and mutual masturbation seem not to fit human anatomy as well. This is not a religious fact.
written by William H. Phelan, April 14, 2009
I must be missing something. As a Catholic who never accepted the Novus Ordo Church, because I could not believe this fluff was relevant, I have no problem understanding that I am living in a post-Christian, secular world. All who attend our Trad. chapel understand we are there striving to be saints! And we understand we live in an ocean of evil. GOD KNOWS THIS. Only HE can protect us. What do do we care what happens in Iowa, Vermont or at Notre Dame? The American fraud has been exposed.
written by John Ashley, April 15, 2009
This judicial (??) reasoning is explained by the legal theory which is summed up in the words "if it quacks it's a duck"

Why would we expect anything more than quackery from the products of modern law schools??
Pope William?
written by Pio, April 15, 2009
To Mr. Phelan's comment: so the standard of faith is now what you find relevant, and everything else is discarded as fluff? a kind of "personal magesterium"? This is a classic cafteria approach to faith and is anything but Catholic. The problem is not a Novus Ordo Church: there has been and there remains only one Church. You and our brothers and sisters at the traditional chapel are baptized into it, but no more than any of us. No one has a monopoly on piety, truth or virtue.
written by Andrew, April 15, 2009
I don't think the problem is so much moral relativism (as you say in conclusion) as it is a type of emotive consequentialist utilitarianism... The state claims that certain things are right and wrong, but only according to either (a) a consequentialist rational, or (b) the "all-worthy-Harm-Principle." Why is porn, homosexual marriage, etc. legal? Because they are not 'harming' anyone. Granted I think ethics w/o Nat. Law is hopeless, as is evidenced by our country and its policies.
written by Phil, April 15, 2009
The court is morally relativist in part. No one is a total moral relativist besides a sociopath.
written by Phil, April 15, 2009
It is worth noting that the defense in this case introduced experts who weren't social scientists: an ethicist, an expert on government family policies, etc. Unfortunately, the lower court judge refused to accept their testimony because they had not done "empirical/scientific research". The only experts that the court would actually accept were the social scientists.
With that being the case and with the unanimous decision, it almost seems like this case was rigged from the start.
Safety Officer
written by Leong Chew, April 20, 2009
If you are saddened by this ruling, please stay awake, turn off your TV and pray to Our Lady to save America.
I have committed myself to pray the Rosary daily. Let's pray for God's mercy for all of us sinners, especially the twisted thinking judges. Hope you will join me.

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