Marriage and the Court: Clinging to the Strands of Hope

The late Fr. Richard John Neuhaus always professed to be “hopeful.” And as our politics worsened with each turn in the “culture wars,” we would hear him say, “We can still turn this around!”

There were echoes ever fainter of Fr. Neuhaus as some of us dragged ourselves out of the Supreme Court last Wednesday after the oral arguments on marriage. Some of our friends were latching on to things said by Justice Kennedy, stirring their hope that he may just yet back away, at the last moment, from the path he has been setting in place for nineteen years. That path has led step by step, as though it were designed to culminate in a “constitutional right” of homosexual marriage.

For Kennedy, everything has played out from the premises he put in place in Romer v. Evans (1996): the aversion to the homosexual life could be explained only by an irrational “animus.” And so it could not be plausible for a State to incorporate in its laws an adverse judgment on homosexuality.

But in that case, a State could not refuse to credit a same-sex marriage brought in from another State – and that is what brought forth the Defense of Marriage Act in 1996, an effort to shore up the authority of the States to preserve marriage as we have known it.

In Lawrence v. Texas (2003), Kennedy wrote for the Court in striking down the laws on sodomy, on the same premises. He would shelter from an adverse moral judgment the freedom of gays or lesbians to the sexual intimacy of their private lives. He insisted at the time that this decision implied no other “formal recognition” of the homosexual relation, a veiled reference to the possible recognition of same-sex marriage.

Justice Scalia famously said, in dissent, “Do not believe it.” And then, two years ago, in U.S. v. Windsor, Kennedy wrote in striking down part of the Defense of Marriage Act, for he professed to find that Act animated, once again, by that animus to the homosexual life, the irrational hatred that could find no reasoned ground of justification.

The lower federal courts quickly picked up the cue, and they began striking down the laws and constitutions in the separate States that refused to accept same-sex marriage; for after all, if those laws were explained sufficiently by a irrational animus, clearly they could claim no grounds of “justification.”

We await the churning of Justice Kennedy’s psyche.

But now we were back in Court again as an appellate panel in the 6th federal circuit sustained the laws on marriage in Ohio. And now, curiously, in the opening moments, Justice Kennedy was voicing words of caution. The key word was “millennia”: “This definition has been with us for millennia. And. . .it’s very difficult for the Court to say, oh, well, we – we know better.”

Justice Breyer, on the liberal side, made the same sounds. Marriage as we’ve known it, “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States. . .to change what marriage is to include gay people.”

Were these the sounds of a newfound prudence counseling caution? Or were they the gestures of judges feigning to strain, before going on to do what they’ve wished to do all along? The strain would be readily dissolved. We’ll hear it said that “slavery had been one of the oldest institutions; it too had been around for millennia before we came to understand its wrongness.” The conservatives invoke “tradition” as a substitute for offering a moral account of what they wish to defend. When the claim to tradition is denied, their position collapses.

Only Justice Alito pressed the question that my readers have heard from me again and again: If marriage were detached from the purpose of begetting children, what would confine marriage to a coupling? Alito posed the problem of four people – two men, two women – wishing to marry as ensemble: “What would be the logic of denying them the same right?” We’ve heard also of the “throuples,” ensembles of three, and we are certain to see them seeking the answer to the same question.

Mary Bonauto, arguing for same-sex marriage, replied that “multiple people joining into a relationship, is not the same thing we’ve had in marriage, which is. . .the mutual support and consent of two people.” Are we doing this simply through stipulation? She simply insists that it must “two people”? Well, we insist in the same way that “it must be a man and woman.”

Ms. Bonauto saw problems of “consent and coercion” in these ensembles. No, said Alito, “let’s say they’re all consenting adults, highly educated. They’re all lawyers.” To these questions there were no tenable answers, as Alito sought to find the limits to the principle that would rearrange our institutions and lives.

These are the kinds of questions that conservative judges typically press. And they could have been pressed here to reveal even more dramatically the incoherence of the argument for same-sex marriage. But no other conservative judge joined Alito in driving the argument through. The conservative judges seemed as stunned in disbelief as the rest of us.

The decision now is beyond their reach; they can only cling to hope with the rest us, as we await the churning of Justice Kennedy’s psyche.

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.