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The Court and Marriage: The Culture War Deepens Print E-mail
By Hadley Arkes   
Friday, 28 June 2013

The Week of Waiting:  I had spent the first three mornings this week at the Supreme Court, bracing myself for what the Court would deliver on the issue of marriage. And by this time, people know that the decisions Wednesday marked a turn in the culture war.

Mark Twain said of Wagner’s music that, “it isn’t as bad as it sounds.” But these decisions were worse than they sounded. Some of our friends have sought gamely to pretend that the political contest will go on, contesting marriage state-by-state. And indeed it must. But we will have to summon our genius to find different paths. 

The Court did not exactly produce a Roe v. Wade for marriage. It did not, in one stroke, sweep away all laws that refused to permit same-sex marriage. But the judges put in place the premises that are sufficiently decisive, and all it requires now are the litigants sure to come forward to complete the work.   

They will challenge the laws that make no provision for homosexual marriages and the constitutions that forbid them. They will need only to cite the charged language of Justice Anthony Kennedy in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act (DOMA) of 1996. And that will supply a sufficient ground for sweeping away any lingering barriers to same-sex marriage.

In Section 3 of DOMA, the Congress stipulated that “marriage” would refer only to “a legal union between one man and one woman as husband and wife.” But to Justice Kennedy this affirmation of the meaning of marriage bristled with hatred and condemnation. In affirming marriage as the relation of a man and woman, Congress showed a disposition to “disparage” and “demean” gays and lesbians, to deny their “equal dignity” and affect them with a “stigma.” 

As Justice Scalia pointed out, Kennedy was essentially charging with bigotry the people who had drafted this bill, but also the 85 Senators and 347 congressmen who voted for it, along with the president (Clinton) who had signed it. Hate-mongers all.

As it turned out, I was one of the architects of DOMA, and I had led the testimony for the bill in the Judiciary Committee of the House in May 1996. Justice Kennedy’s scathing remarks on the mind that brought forth DOMA seemed to stop just short of attaching my name. 

But it’s worth recalling what brought some of us then to press for DOMA. The Supreme Court of Hawaii had installed same-sex marriage in that state. The question was whether couples could marry in Hawaii, and then, through the Full Faith & Credit Clause of the Constitution, bring their marriages back home to other states. In this way, one state could in effect “nationalize” same-sex marriage. 


             Statue of a Catholic jurist

A state could refuse to honor marriages coming in from other states if it bore a moral objection, registered in its laws, to those forms of marriage (say, of persons below a certain age). But coming soon was the decision of the Court in Romer v. Evans, which threatened to knock out that prop of authority for the states. Sure enough it came, with the key lines from Justice Kennedy. 

He famously held there that the moral aversion to the homosexual life “seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Centuries of Jewish and Catholic teaching could be reduced then to an “irrational” passion, an “animus.” No law that cast an adverse judgment, then, on the homosexual relation could find a reasoned ground of justification. And therefore a state could not incorporate any longer in its laws an adverse judgment on the homosexual life.

If that were the case, a state could not refuse to honor a same-sex marriage coming in from another state. That is what brought the need for DOMA. The Congress would give guidance to the courts and support the authority of the states in refusing to credit those marriages.  

The Court on Wednesday affected not to touch this part of DOMA. But Justice Kennedy’s premise surely will, for it is the premise that has worked its way through all of the litigation since then.  In Lawrence v. Texas (2003), Justice Kennedy held that the state could not justify laws on sodomy because there was no rational ground on which to condemn the homosexual relations that people pursued in their private lives. 

He insisted at the time that this judgment entailed no “formal recognition” of any other relation – namely, “marriage.” To which Justice Scalia famously said, “Do not believe it.”

Only five months later, the Supreme Judicial Council of Massachusetts invoked Kennedy’s words in the Lawrence case in striking down the laws on marriage in the Commonwealth and installing same-sex marriage. And Kennedy invoked Lawrence again in striking down DOMA on Wednesday. As Justice Scalia remarked, we are simply waiting for the “second shoe to drop.”  

The activists will come forward to test the laws in the various states, including the laws that offer no recognition of same-sex marriage. And all that a judge needs to do now is invoke Kennedy’s overheated language in U.S. v Windsor. To use an old line, discussing marriage now without Justice Kennedy is. . .like playing Hamlet without the first grave-digger. 

And this is the work of a Catholic jurist.  On all of this, more later.

 
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. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.
 
 
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Comments (24)Add Comment
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written by Manfred, June 28, 2013
Thank you for a terrific column, Dr. Arkes. I never realized that you were on the "front lines" on DOMA. Here is a thought: On one day, five people under the leadership of Anthony Kennedy effectively did away with thousands of years of Judaeo-Catholic Divine teaching which has consistently referred to sodomite acts as an ABOMINATION which cry out to Heaven. Not only will this impact over 300 million Americans, but the rest of the world as well. I cannot believe that judges have this power to disrupt so many lives without a challenge, but that seems to be the case. Thank you for the details of the history of DOMA and your role in it!
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written by Dennis Larkin, June 28, 2013
We have five nominal Catholic justices on the Supreme Court. This decision is proof of the failed catechesis since the Council.

And I think that all attempts to rescue culture through the courts are fools' errands.
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written by Ib, June 28, 2013
This is one of the reasons that many people believe we are already in an Age of Barbarity. The rule of non-elected elites has been imposed through a charade of democracy, Christian faith has been designated as both ipso facto irrational and an impediment to human flourishing, and mass murder has been declared to be a social good. This is an Age of Barbarity in which the ancient notion of a life of virtue (I.e., a holy life) is considered reprehensible.

Alasdair MacIntyre, writing 30 years ago, already saw the signs of it in European governments:

What matters at this stage is the construction of local forms
of community within which civility and the intellectual and 
moral life can be sustained through the new dark ages which are already 
upon us. And if the tradition of the virtues was able to survive the horrors 
of the last dark ages, we are not entirely without grounds for hope. This 
time however the barbarians are not waiting beyond the frontiers; they 
have been governing us for quite some time. And it is our lack of 
consciousness of this that constitutes part of our predicament. We are 
waiting not for a Godot, but for another -- doubtless very different 
-- St. Benedict." (p. 263, pub. 1981)

The barbarians are governing us -- and have been for quite some time. Most of the governmental elites, like the Arian kings of old, regard Roman Catholicism and other ancient Christian traditions with contempt. It becomes less and less likely that anything but barbarous laws and regulations will emerge from them. 

The earlier "Dark Age" lasted three hundred years. May we hope that this new Age of Barbarity will be any shorter?
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written by Dan Deeny, June 28, 2013
An excellent article. I liked Mark Twain's comment on Wagner's music. I would say, however, that his music is actually worse than it sounds. You are also right to mention that Justice Kennedy is a Catholic.
Is there now anything to prevent incestual marriage, bestial marriage, pederastic marriage, etc.?
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written by Ernest Miller, June 28, 2013
D. Larkin says it best "...all attempts to rescue culture through the courts is a fool's errand."

In ways similar to the Jews in the old Testament (except more successful), today's Catholics should live separate from society, earn protection from God, and head for the narrow gates.
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written by tom, June 28, 2013
Justice Kennedy is a jurist, not a "Catholic jurist." He made the correct decision.
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written by anon, June 28, 2013
Tom,

He is a jurist with no principles.
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written by Mack Hall, June 28, 2013
1. Many -- or most? -- bishops are silent or evasive.
2. Almost half of the Catholics who voted last November voted for the perverse culture of death.
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written by Just a mom, June 28, 2013
So many good comments - esp D. Larkin and lb. As Prof. Arkes and other Catholic thinkers have understood, when the positive law (whether judge-made or legislative or via citizen initiative) becomes unmoored from the natural and moral law it devolves to the will of the stronger. Cardinal Dolan was right to declare the Court's marriage decisions an assault on the truth. Personal holiness and witness - whether in society or separate from society - is the only answer.
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written by tom, June 28, 2013
If you think he has no principles, you haven't read his opinion. How about a column here devoted to the gutting of the Voting Rights Act by the "Catholic jurists" rather than a continual focus on culture wars?
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written by Dan Kennedy, June 28, 2013
Brilliant! My problem is I also get sidetracked by the great books advertised on the right...
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written by Jack,CT, June 28, 2013
Friends,
1) The supremes made the correct decision by law
2) Confessors listen to sin
3)the rest of us pray for the sinner
As conservatives we promote marriage and all the blessings of it. If our gay brother and Sister want to participate in the same Sacrament who am I to judge, that is between them and there confessor!

The Radicals will start bashing my view with there view of
the "CCC" and such but should we promote all that a non union offers?
I say let God be the decider of who shall participate in a sacrament and who should be excluded.
Allow our gay brother and sisters enjoy the same cival rights that we all do all 1100 laws that married couples do! God Bless,
Jack
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written by Jacob, June 28, 2013
Up is down.

Kennedy is the top judge because he schmoozed all the right people and now gets to label Prof. Arkes a hate monger.

The greater mind apparently can be labeled by the more eager schmoozer in our society.

Up is down when you live in a culture that has murdered more innocent babies than Nazis and Soviet troops put together.
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written by Brad Miner, June 28, 2013
@Jack: Your libertarian position -- if that's what it is -- ignores what even a "liberal" Catholic theologian such as Karl Rahner emphasized: that our sins are not our own business; they're God's business. It's fine for the State to resist too strenuous efforts at regulating sin; quite another for it to endorse sinning by normalizing it; by embracing a view of sexuality that -- by Justice Kennedy's own lights -- cannot exclude any individual's version of it. And if you think this doesn't open the door to unimagined perversity, you're not using your imagination.
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written by Layman Tom, June 28, 2013
Dan Deeny, Those are valid questions. One could argue that those forms of sexual relations are probably uniformly illegal, so their prevention is more assured, yet Sodomy was also uniformly illegal at one point in our recent past; so maybe not. Either way, I think that the bigamists have the best shot. They are probably in the on deck circle licking their chops. Your examples are probably still apt to make even the liberal hacks on the court squeamish, but a “loving” marriage of multiple partners all consenting, unrelated, human adults is a piece of cake to get through. The only thing standing in the way is a bunch of antiquated, backwards religious nuts. And affronting them and their views is sorta the point. Don’t you think? They would easily use the same arguments and who could stand against it? If there’s no “rational relationship to legitimate state interests” in barring Homosexual marriage, how can there be one for barring Bigamy?

Just remember not to “disparage” and “demean” Bigamists, to deny their “equal dignity” and affect them with a “stigma”, while you answer that. We don’t want any animus clouding our rationale.

You know, the funny thing is that I never felt any animus towards homosexuals before they started ramming their lifestyle down our throats. Besides, the fine folks pushing this agenda cannot BE stigmatized. They wear it on their sleeve with pride.
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written by Deacon Ed Peitler, June 28, 2013
How many bishops, priests and deacons will be preaching on Sunday about this Supreme Court decision? I have managed to integrate it into my remarks and I can promise you it will not be a favorable commentary.
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written by Ib, June 28, 2013
Between Mack, Jack and Tom there is a wide arc. Mack seems to be against the Supreme Court's decision, while Jack and Tom are for it. But there is also a sad commonality: lack of respect for the Successors of the Apostles, the Bishops of the Roman Catholic Church. In matters of faith and morals, Roman Catholics owe the Bishops of the Roman Catholic Church reverence and obedience (Code of Canon Law 212). Contumaciously disputing the clear moral teaching of the RCC reveals at least a misunderstanding of what being a member of the RCC requires; at worst it may display arrogance or foolishness (Mark 7:12).

The RC Bishops have indeed both as individuals and as a group spoken again and again against the legalizing of same sex marriage (which can be seen by looking at any Diocesan website or the USCCB's website). But as Terry Mattingly pointed out over at his Patheos blog for June 27, the main stream media simply will not report anything that doesn't fit their narrative. So the statement of Baltimore Archbishop William E. Lori, the chair of the U.S. Catholic bishops’ ad hoc committee on religious liberty, gets two lines in the Baltimore Sun's front page story. And the lines have been edited to make the Archbishop sound like a Party-pooper.

But maybe he is a Party-pooper. And maybe we should all be. As Elizabeth Scalia pointed out in her June 26 blog post:

"Like it or not, this is where the end-game is leading: if the Church won’t obey The Party; if it will not acquiesce to The Party, it will have to be dismantled, bit-by-bit.

While everyone else is tilting at windmills, insisting that “if we just work hard, keep telling the truth, keep repeating ourselves in our echo chambers, we can still win” (an insistence that assists The Party by keeping most folks distracted and divided, by the way) The Party is intent on accomplishing a kind of coup against the Catholic church and all believers of “orthodox” stripe. Tax-exempt status’ will soon be stripped. Lawsuits will be filed. Properties will be confiscated and awarded elsewhere. A Carter-ballyhooed “enlightened” American Catholic Church will quickly emerge — one happily in tune with the secular government and all of its social pronouncements; one that can “partner” with the government in a way the stubborn old Roman church never would. Its pews will fill early because its message will resonate with the Oprahesque and shallow Gospel of Feeling Good About Ourselves that we have been so attentively tutored-to these past decades. There will be bells; there will be smells; there will be rites and rituals and it will all seem like the Catholic church, but it won’t be. It will be the Church of The Party. China has one, too. The Roman church, the remnant, lives underground."

May God continue to bless the Roman Catholic Church in these difficult times.
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written by Manfred, June 29, 2013
@ib (et al.) Thank you for a great post, ib. You see the picture as clear as a bell! The Chinese have already told us what to name this new church-The American Patriotic Church, which would be a copy of the "official" church in China. We are now fully feeling the "fruits of Vatican II" and what Our Lady warned of the "diabolical disorientation" which would ravage both the Church and the world. She warned those who would listen to convert, pray and do penance. Most chose not to follow this warning and the results of that disobedience will destroy us, our children and our grandchildren. Satan, the prince of this world, is completely in charge. I am grateful that God has allowed me to witness the fulfillment of the messages of Fatima as an adult from 1960 to the present.
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written by tom, June 29, 2013
lb

The concept of the separation of Church and State, as required by the Constitution, seems to have been forgotten here. We should not expect justices of the United States Supreme Court who happen to be Catholic to make decisions based on the Bible, the Baltimore Catechism, or promulgations of the Bishops of the Roman Catholic Church.

Imagine for a moment if Muslims constituted a significant portion of the American population and many of them were pushing for the adoption of Sharia law in this country. What would you expect from a Justice of the Supreme Court who happened to be a Muslim? Would you expect him to apply Sharia law or the precepts of the Constitution of the United States.

Think about it.
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written by Other Tom, June 29, 2013
@tom: Suggest you take a look at the Commentary (link provided by TCT, "From atheism to nihilism") by Chief Rabbi (and British Lord) Sacks on why the engagement of religious people in their culture, as religious people, matters.
He is not, as you may have gathered, an RC
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written by Manfred, June 29, 2013
@Tom (et al.): After a lecture given by Msgr. William Smith+ on the subject of moral theology, a physician mentioned that the hospital where he had privileges had told him that he would be required to perform abortions. What to do? Msgr. advised the doctor he could never cooperate in evil. Dr: But it would end my career at the hospital! Smith: "It would be better to serve God as a pious mailman than as a corrupted physician". Anyone who serves as a politician or as a judge is serving under their own volition. A career as a God-fearing attorney would be more rewarding than as a corrupt judge.
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written by TomD, June 29, 2013
@tom: The "separation of Church and State" is not in the text of the Constitution. It has been interpreted into the Constitution by the Supreme Court in the modern era.

The Constitution requires that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" The states were free, within their own constitutional guidelines, to exercise religion as the people saw fit.

Substituting separation for establishment by the Courts has led to many questionable rulings by the Courts . . . and is not in keeping with the original intent of our Founders. It is largely a modern invention, albeit one that has now been incorporated by the Courts into the Constitution.
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written by R.T. Neary, July 11, 2013
Having once been spat upon by a mannish-looking female on the steps of the Massachusetts State House, I repeat my assertion of that day: Marriage is a concept which inextricably includes COMPLEMENTARITY. Same-gender relationships simply do not meet this criterion. Ergo, it must and can only include a male and a female. Why is this never been introduced into our legal arguments? P.S. I instinctively wiped the spit away and said "God Bless You" to this troubled soul.
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written by Aloyius van Dunk, July 11, 2013
Homosexuals want to ram respectability for themselves down the throats of the rest of society. It doesn't work that way. For them it’s not enough to live their sexual proclivities privately; the rest of the world must know about it and be taught to affirm it, starting with children in the public schools. Is not enough to have all the financial and legal benefits of marriage, they want society to provide them with children and ignore the fact that these children will never know the meaning of human complementarily, of being raised by a man and a woman. It is not enough to have suffered little or no economic or educational deprivation, they want business and educational institutions to create homosexual affinity groups and make sexual orientation a factor in diversity goals for promotion and admissions.

 It is not enough to be granted all the above, they want to be a protected class with laws that turn traditional society into bigots and haters to be shunned and punished.

And they ask, “How does my same sex marriage have any impact on you?”

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