The Supreme Court Hears the Cases on Marriage

The cases have been in the works for a long while, headed for the U.S. Supreme Court. And now, this week, they have arrived: The Court has allotted two days of oral argument to two cases testing the question of whether the laws may insist on recognizing as a “marriage” only the union of a man and a woman. It is taken seriously now that the Court, in a stroke or two, could sweep away the barriers to “same-sex” marriage.

In one case, Hollingsworth v. Perry, the Supreme Court of California found the laws on marriage unconstitutional because they had foreclosed the marriage of two people of the same sex. The voters of California overruled that decision in a referendum (Proposition 8). The issue was appealed then in the federal courts, invoking the “equal protection of the laws”: that the laws barring couples of the same sex from marriage constituted “discrimination” that could find no ground of justification.

The other case, U.S v. Windsor, involved the Defense of Marriage Act (DOMA) (1996): A woman surviving the death of her female partner was denied the benefits in taxation that would flow to a bereaved spouse. For the rules on federal taxes would be governed by that provision in DOMA in which the Congress simply stipulated that, in federal law, the term “marriage” would apply only to “a legal union between one man and one woman as husband and wife.” 

The cases are cast under different clauses of the Constitution, but they lead back to the same underlying question: Is it “unjustified” to bar, from the standing of a marriage, a coupling of two men or two women? 

That the matter should even be arguable, or treated as plausible, is already the measure of a culture that has lost its moral coordinates, or even its clarity of mind. Even, or especially, among the so-called educated classes the whole question is engulfed in a fog of abstraction. Fr. Schall always insists on putting the “What is” question: “What is this” we are talking about? 

In the first place, what makes “homosexual” encounters “sex” rather than mutual onanism? Does  any genital stimulation count as sex?  Or is “sex” in the strictest sense marked by its telos or purpose: the act of begetting.

That publicly proclaimed intellect, Bill O’Reilly, remarked that the Church’s view of this matter is “Biblical,” meaning apparently that it has no truth for anyone who does not share the Catholic reading. But as the Congregation for the Doctrine of Faith once put it, there has not always been a Hungary or Italy, but as long as there are human beings there will be men and women. That is the meaning of sex. And one doesn’t have to read the Bible to come up with that one.

But the key abstraction, settling off ripples of self-deception, is that term “sexual orientation.” The term is broad enough to encompass sex with animals, pedophilia, even necrophilia. And yet the key premise that hovers in these cases on marriage is the one drawn from Justice Kennedy in Romer v. Evans (1996):  that the aversion to the homosexual life represents nothing more than an irrational “animus.” And in Lawrence v. Texas (2003), Kennedy stood firmly against any tendency to cast moral disapproval on people for the sex they practice in their private relations.

But is it conceivable that sex is the only activity in this world that can never be used to inflict harms without justification – and never be subject to moral judgment? Quite apart from rape and incest, is it really true that we can never draw adverse inferences in the law about the sexual practices or “orientation” of people? Would we not have the gravest doubts about the application of a man to be an adoptive father if he were openly committed to sado-masochistic sex or pedophilia?  

In his brief for the Court in Hollingsworth, Professor Paul McHugh of the Johns Hopkins University reviewed the findings that show the notion of “sexual orientation” to be quite unstable: Many people shift back and forth across a spectrum that may now include the bisexual, fetishistic, transvestic, zoophiliac (sex with animals). The term has become so elastic that, as one commentator remarked, “there is real doubt whether sexual orientation is a valid concept at all.”

And yet from airy things that people are too delicate to describe, and too foggy to define, lawyers are judges are ready to draw the most astounding moral and legal inferences, unsettling institutions long established for compelling reasons.

I took it as a telling sign of the common mind at work when Bill O’Reilly repeated that cliché often put by Congressman Jerrold Nadler: How is anyone’s marriage affected by the fact that two men or women are allowed to marry? 

A while back, a 42-year old woman was barred from living in Stafford, Virginia with her 19-year old son as man and wife. And Philip Buble in Maine was denied a marriage license for himself and his 37-pound dog Lady.

Now how would anyone’s marriage be impaired if these people were allowed to marry as they wished? When the Left finds things it regards as wrong or indefensible, it never asks whether anyone would be disturbed or injured if the wrong went unrepaired. If there is something untenable in principle in same-sex marriage, that judgment pronounces all we need to say.


Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of 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 available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.