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

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. 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.

  • Howard Kainz

    My hope is that this issue will be left to the legislature(s), who were supposed, if I recall correctly, to be in charge of making laws. What we don’t need is another “law of the land” (like Roe v. Wade) imposed by the judiciary like a deus ex machina.

  • Sue

    On the contrary, marriage needs to be locked in as inalienably heterosex as slavery is inalienably illegal.

  • Manfred

    Thank you for a great report, Prof. Arkes. I suggest we reflect on history-the million British, 50,000 Americans who died in WW I, Dachau, Nordhausen, Belsen, Auschwitz and the millions who died in those camps to say nothing of the millions who died in WW II itself.These were punishments allowed by God. Since we are dealing with normalizing sexual aberration, perhaps God will reintroduce us to Sodom and Gomorrah. After all, the Blessed Mother told Sr. Agnes at Akita in 1973 “there will be fire from the sky” and the good will suffer as well as the bad. As Paul says in Romans I, as people become increasingly steeped in sin, God allows them to become morally blind. And here we are.

  • Frank

    Wait until same sex married couples have to pay taxes under “married filing jointly” and they get socked upside the head with the marriage penalty. Be careful what you ask for, you just may get it!

  • Grump

    Professor, you summed it up perfectly in this sentence: “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.”

    Although we are not a democratic country in the literal sense, the fact is that nine states prohibit same-sex marriage by statute and 30 prohibit it in their constitutions. Were it not for the interference of left-leaning federal judges, DOMA would stand as the law of the land.

    The gloss of same-sex marriage as a “civil right” obscures the moral arguments you so ably make. Adding impetus are the mainstream media’s constant advancement of the homosexual agenda heavily influencing public opinion polls that show a majority are in support now as opposed to previous decades when such a notion was unmentionable.

    It boils down to whether a few judges are allowed to override the clear wishes of American voters and legislatures and whether the states retain any sovereignty as Jefferson saw it. I fear we live in Hamilton’s America where the federal government has the final say.

  • Tony

    What astounds me about this whole thing is the complete incoherence in the reactions of the Great American Muddle. Sodomy is supposed to be wunnerful, just wunnerful — but then why were the lives of so many young boys ruined by the Penn State football coach, who introduced them to the wunnerfulness of sodomy? Or the lives of the teenage boys seduced by priests? It cannot be the difference in age, alone. That makes the act venal — but it hardly matters to the child; mere difference in age is, in his mind, inconsequential. It cannot be physical force, because in most of these cases no physical force was used.

    What preys upon the minds of the men who were induced into sodomy was that it was in fact homosexual — and, to make matters worse, a kind of incest, since they viewed their seducers as father-figures or as big brothers. It involved a corruption of their masculinity. That would not have been the case had the seducer been female. In fact, we hear of frequent cases in which youngish women teaching in high school take up with a teenage boy, and though those women are creeps and ought to be fired, then prosecuted for corrupting the morals of a minor, no man that I’ve ever heard of has said, “My life was ruined because Miss Hunter, my high school English teacher, seduced me.”

    But I am so sick of having to have the whole world overturned just because a tiny portion of the population can’t tell a plug from a socket.

  • Ken Tremendous

    Here’s where I’m at on this issue. I’m sad to say I don’t think the forces standing for traditional marriage between a man and a woman are going to win–not necessarily the court cases at hand but the broader political fight that is being waged. In fact, the fight was really lost long ago when people at some point embraced the notion that marriage was the expression of love between two people that was not necessarily centered around children.

    So I think at this point we have to think seriously about whether it would be better to lose in one fell swoop by a court edict or better to lose in protracted state by state fights over the next 20 years.

    At any rate, I think we need to turn our attention now to building up a regime of legal protection for religion and religions people that is as broad as possible.

    I hate to sound defeatist but that is the way I see it.

    Gay marriage cometh!!

    and btw Tony I don’t think your sex abuse argument is very convincing at all. A female teacher sleeping with a pubescent boy is worlds apart from prepubescent boys and girls being sexually abused by adults. The emotional and sexual maturity of victims as well as the overall context makes a tremendous difference in how much it scars the victim.

  • DeGaulle

    Ken, I appreciate what you are saying, and certainly the holing of marriage beneath the waterline began decades ago. But we shouldn’t surrender quite yet. We have seen an extraordinary change in public opinion amongst a large portion of very ignorant and impressionable people over a very short term, and my hope would be that if we opt for trench warfare long enough, the spell might be broken, and the great mass of people revert to the default view of perversion, which existed almost for the entirety of history. The trends seem to be going that way, though at glacial pace, regrettably, with the abortion issue.

  • Hadley Arkes

    I was down at the Supreme Court this morning to take in the oral argument in the case from California, Hollingsworth v. Perry, and the readers of the column may find it interesting to learn that Justice Sotomayor challenged Charles Cooper, arguing for the side seeking to preserve marriage as we know it, and challenge him on the meaning of “sexual orientation”:

    Justice Sotomayor: Outside of the marriage context, can you think of any
    other rational basis, reason, for a State using sexual
    orientation as a factor in denying homosexuals benefits
    or imposing burdens on them? Is there any other
    rational decision-making that the Government could make?
    Denying them a job, not granting them benefits of some
    sort, any other decision?
    Mr. Cooper: Your honor, I cannot. …

    If there was ever a moment at which I would have someone make use of an argument I set down in one of my columns, this would have been it. Chuck Cooper is one of our most accomplished appellate lawyers, and one of our quickest minds. That makes this all the more a critical moment missed. Mr. Cooper could have deflated here one of the reigning clichés that has had a baneful effect on our law and politics.

  • Mark

    Which section of which article gives the federal gov’t the authority to define marriage?

  • Fumey

    One testimony from France where we face the very same situation.

    An increasing number of people march to say NO to a deft government: more than 1 million, and close to 2 millions on March 24th.
    An amused note: what you see as left wing in US would be seen as a gentle center-left political tendency in France.

    One reason that you apparently fail to see is the Rights of the Children. This is the chore of the fight for us.

    We can obviously see moral arguments, but other people can rightly say that they have another moral background that we just fail to understand (too right, cause it’s very hard sometimes…)

    But when you see the consequences for the children, the claim for same sex marriage become obviously twisted.
    – The words ‘Mother’, ‘Father’, ‘Husband’, ‘Wife’, ‘Grand-father’ and some others important ones will vanish from the official documents: they would be no longer suitable in a same sex marriage.
    – The biological links between parents and children will vanish from the law: they would have no signification for same sex parents; thus a ‘real’ father, or mother, could be overpowered by the companion of his ex-wife, or ex-husband. This case does exists: this is the decision of the Human Rights European Court (not a fair name) against the Austrian state on feb. 19th.

    There are a lot of other serious consequences that have been en lighted by a big senior lawyers group. The main benefit of this angle is its ground is just factual, and no more moral.

    Just try it.

    Alain Fumey, From France

  • Kurt

    Well, at least one thing is settled. If “sex” means only the act of begetting, Bill Clinton was telling the truth when he said that he had not had sex with Monica Lewinski.

  • John H.

    Government is pretty lousy at everything it does. I doubt it is very good at defining marriage.
    The solution with integrity and internal consistency is to eliminate all of the many unconstitutional federal government benefits of marriage. People then can make contracts between themselves that discuss issues relating to medical decision-making, financial commitments, sexual commitments to each other, raising of children, etc. The government’s sole job then is enforcing the voluntary contracts, neither prohibiting nor encouraging them.

    There will be plenty of things left to debate–such as who determines what is “allowable” for orphaned minors in terms of placement.

    IN our once-free nation, the Constitution did not grant any rights to the people. It only granted certain, and very limited, powers to the federal government. The people had all the rest of the rights, termed natural rights. I hope someday that individual members of the GBLT community see that neither of the Big political parties is focused on preserving liberty or these rights. Rather they are focused on empowering the state, in slightly different ways. Obama certainly is not interested in individual liberty. He destroys economic liberty, which is essential to liberty. The wisest political orientation for many GBLT folk is libertarian–which is the one internally consistent philosophy, and therefore the one with integrity.

    If someone “marries” a dog, and I don’t thereby get forced by a stupid government to pay for benefits for the dog, and there is no government sanction, then I don’t care.. If there is heterosexual “marriage” that is sick, sociopathic and destructive, I don’t want to be forced by the government to pay for that either.

    Just leave us all be, Big Brother!