The Court and Marriage: The Culture War Deepens Print
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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