Same-Sex Marriage and Surprises for Liberals Print
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.
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