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.