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Same-Sex Marriage and Surprises for Liberals Print E-mail
By Hadley Arkes   
Tuesday, 19 July 2011

“Do not believe it.” Those were Justice Scalia’s prophetic words in dissent in Lawrence v. Texas in 2003. With Justice Kennedy writing, the Supreme Court had just struck down the law on sodomy in Texas, and Kennedy insisted that nothing in this holding would entail same-sex marriage. Or as he put it in terms suitably muffled, no obligation would arise to “give formal recognition to any relationship that homosexual persons seek to enter.

Before the year was out, the Supreme Judicial Council in Massachusetts would cite Kennedy’s opinion, overriding the Constitution and laws of Massachusetts, as it went on to install same-sex marriage. If Kennedy truly was surprised to see his pronouncement belied so dramatically and so quickly, he is destined to be surprised yet again and again, as the implications continue to unfold. And they unfold precisely from the logic that Scalia pointed up on the day that Kennedy delivered his opinion.

On the surface, it appeared that the Court had done nothing more than strike down criminal penalties for private sodomitical acts.  But judges often love soaring language, and as Kennedy soared he would remark that there is an “emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” 

Kennedy observed that the case did not involve “public conduct or prostitution.” It involved a couple, with “mutual consent … engaged in sexual practices common to a homosexual lifestyle,” and they were claiming “respect for their private lives.” In Romer v. Evans (1995), Kennedy had declared that nothing more than an irrational animus, sprung from religion, could account for the moral rejection of the homosexual life. And so laws casting an adverse judgment on that life “had no rational relation to a legitimate governmental purpose.” 

When we pull these strands together, the deep message they convey is that the law has no legitimate ground for casting a moral judgment on homosexual acts, or perhaps any acts of a “sexual” character carried on with the consent of the participants. That sense of things seems to have been absorbed widely now in laws on discrimination throughout the country, and it runs well beyond the criminal laws.

And so Catholic institutions have been compelled to withdraw from the field of adoptions if they will not place children with gay or lesbian couples. There are no criminal penalties, but the law casts an adverse judgment here on people . . . who cast adverse judgments on the homosexual life. But then as Scalia pointed out, even the laws on prostitution could be called into question, for would they not cast a judgment on sexual acts performed in private settings by consenting adults?


      Scalia saw it coming: What will stop the legalization of polygamy and prostitution?

What hasn’t quite dawned yet, even on good liberal citizens, open to novelties in the law, is that same-sex marriage is not the ultimate, culminating end for gay-lesbian activists. It is only an intermediate end, on the way to the state of things even more devoutly to be wished. 

And so, just a day before the legislature in New York enacted same-sex marriage, a lesbian activist complained in the New York Times that people were taking marriage far too seriously. Prof. Katherine Franke of the law school at Columbia noted that, in the absence of same-sex marriage, politicians and lawyers had shown their liberality by accepting civil unions and benefits for domestic partners. But now, when same-sex marriage is available, certain employers, public and private, are starting to insist that people marry if they wish to claim the equivalent of spousal benefits.

For Franke, though, civil unions and domestic partnerships were not consolation prizes. They offered forms of deliverance from that rigid, old-fashioned notion of “marriage”:  confining, exclusive, and – gasp! – monogamous.  Activists like Andrew Sullivan have long insisted gay marriage must be “open,” without constraint, to sexual encounters with many others, including strangers.  

For employers it makes eminent sense to insist that they are on firmer ground for according benefits when they have signs that the partners are truly committed to one another. And as ever, what better measure of “commitment” than a commitment in law; a commitment one was not free to leave as it merely suited one’s pleasure? Companies like Corning, IBM, and Raytheon are moving in that direction, requiring employees to be married within a year or so to qualify for benefits.  

For others, the same liberal indulgence that moved them to cast a moral acceptance on the homosexual life will no doubt make them reluctant to cast judgments on the other ways that people choose now to arrange their sexual lives or insist on their own understanding of what “marriage” means to them.  

But surely even these companies must know that the laws on marriage have been challenged by those seeking, not only polygamy, but a right to cohabit in “polyamorous,” sexual relations with an ensemble of persons professing their love. Some companies, like Google and Microsoft, got themselves into this situation with liberal conviction. Other companies simply sought to buy peace.  

But they will have now neither peace nor stability.  They will either have to open their treasuries to benefits and novelties ever enlarging, or come at last to this recognition: that even they must cast a judgment on the meaning of marriage and the rightful boundaries of the sexual life.

 
 
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is  Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
The Catholic Thing is a forum for intelligent Catholic commentary. Opinions expressed by writers are solely their own.

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Comments (13)Add Comment
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written by Aeneas, July 19, 2011
This whole thing is disgusting. Once again, hats off to Hadley Arkes for another important article. Gay 'marriage' is not the end, oh no, there will be much more in the future...and I'm probably young enough to see it all transpire within my lifetime.

Also: "Activists like Andrew Sullivan have long insisted gay marriage must be “open,” without constraint, to sexual encounters with many others, including strangers."
How that man ever considered himself to be a Catholic and at the same time, hold perverse opinions like that, is beyond me.
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written by Grump, July 19, 2011
Mr. Arkes, nice legal argument but such articles only serve to validate and legitimize the "debate" over what constitutes marriage, which would have been ludicrous 50 years ago when I was a teen.

Legally, of course, one can make a case for just about any vice or bad behavior (smoking, prostitution, drugs and alcohol abuse, etc.), but morally, there can be no arguments worth pursuing.

You're waging a losing battle, professor, against the tide of depravity that is washing over America as she sinks further into an immoral swamp of decadence and decay. Spengler was right. We're in the winter of the life of this nation.
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written by Chris in Maryland, July 19, 2011
Aeneas: I think that the reason why Sullivan thinks he's a Catholic, is probably because most of the Catholics (Bishops, clergy and laity) surrounding him in Massachusetts and Washington, D.C. (and formerly his native England) think he is too.
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written by Ray Hunkins, July 19, 2011
Well done Professor. Good judgement seems increasingly difficult to come by these days and our society seems increasingly averse to making any kind of judgement on the conduct of others. Case in point: the Casey Anthony jury, but there are many other examples.Unless we pull out of this nose dive, we are in a death spiral.
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written by Other Joe, July 19, 2011
Small point - in aviation the death spiral is fatal because the person in command does not realize the danger. Flying by feel rather than by instruments the pilot is fooled into believing everything is OK. A nose dive is obvious. We are in a death spiral. It is an apt metaphor.
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written by Louise, July 19, 2011
Might I recommend a recent essay by Dr. Peter Kreeft: "The New Paganism"? He carries on the "hows" and "whys" of the discussion brilliantly.

Excellent essay, Prof. Arkes. Thank you.

Didn't anybody learn anything from Cain and Abel all those millennia ago? Cain cannot live with Abel. If Truth lives anywhere in the same universe, it convicts Cain's soul, and must be destroyed. So what else is new?
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written by c matt, July 20, 2011
I am still undecided about Kennedy. Is he really that stupid, or was he just feigning ignorance of the consequences of his high school philosophy level musings that pass for legal opinion?
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written by Dean, July 20, 2011
There is another way of looking at this question: that companies tend to act in their economic interests, neither out of "liberal conviction" nor purely to quiet criticism. Companies offer benefits to talented, skilled and creative employees in order to attract and retain them. In the absence of prejudice to the contrary, it makes economic sense to offer benefits to employees with same-sex partners so as to remain competitive in a cultural landscape in which gays and lesbians are no longer willing to remain closeted or mistreated. Though they assert different opinions, both Franke and Arkes are behind the times with regard to marriage equality. Recently, some companies have seen a cost savings in standardizing human resource practices where marriage equality is now legal. To assert that such companies will eventually find themselves extending benefits to multiple, long-term sex partners of employees assumes a gratuitous altruism on the part of such businesses that is hard to imagine. However, were such relationships to become the norm, perhaps they would not be likely to burden businesses any more than monogamous heterosexual couples who produce a large number of dependent children.
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written by Grandpa, July 21, 2011
Dean, that's a tempting thought, but I'm afraid it's not true. Companies aren't driven by pure economics in these matters but by prevailing public opinion - or, more accurately, what the companies understand as the prevailing public opinion, which is often a loud minority. Read what de Tocqueville said about the inability of the average citizen in an egalitarian age to resist the power of majority opinion. At the same time, these companies are also driven by their own idea of justice, regardless of public opinion.

If your proposition were true, then Hollywood production companies would have been making thousands of decent movies for families, and thousands of religious movies as well. The market for those sorts of movies is immense. But they have made pitifully few; almost all their output is pro-feminist, pro-promiscuity, and pro-"progressive."

Likewise, the top 100 law firms embrace homosexual "marriage" because they worry they would come under fire from various groups if they did not, and also because a large number of lawyers actually believe that homosexual marriage is required by justice.

You could say that there is an indirect economic interest here - the wish to avoid bad publicity brought on by protests from leftist groups and newspapers - but it's not a matter of simply increasing profits. Companies could do quite well in attracting talent without making special appeals to certain groups over others, just as Hollywood studios could make billions of dollars making more movies like The Sound of Music - but they choose not to for reasons apart from money.
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written by Friedrich, July 21, 2011
Dean,

Being "behind the times" is hardly a criticism when the times are degenerate. Should we all simply be men of our times, whatever those times may become? This would be a willing slavery.

While we are contingent beings to a degree, we may also deliberate and choose. We live in our times, but we can also be fighters against those times. This is the path of freedom.

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written by Patrick Deneen, July 22, 2011
Next on the docket: polygamist marriage. Where are all the voices that ridiculed Scalia's warnings? See the recent (7/20) story by Jonathan Turley in the New York Times:"One Big, Happy Polygamous Family."
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written by Michael PS, July 22, 2011
Here in Europe, we are seeing more opposite-sex couples opting for Civil Unions and Domestic Partnerships, which offer greater flexibility.

In France, where the courts decisively rejected demands for SSM on equality grounds, by arguing that the presumption of paternity and its counterpart, the obligation of marital fidelity was what set marriage apart from other legal unions and made it irrelevant to same-sex couples, no obligation of fidelity is required of civil partners. After all, apart from merely emotional reasons, why should it be, where there is no risk of the imposition of a spurious issue?
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written by Gwenevere, December 16, 2011
This statement caught my eye:

"What hasn’t quite dawned yet, even on good liberal citizens, open to novelties in the law, is that same-sex marriage is not the ultimate, culminating end for gay-lesbian activists. It is only an intermediate end, on the way to the state of things even more devoutly to be wished. "

... in light of the first five words of "The Overhauling of Straight America," which I just read for the first time this evening. Those words are, "The first order of business..." which I found very telling, as I wondered what the other orders may be.

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