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.”

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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

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.

  • Michael Paterson-Seymour

    In Europe, the courts have been grappling with the question of polygamy for quite some time. After all, polygamy is an institution of immemorial antiquity, legally recognized in some 50 countries around the world and in many of them governed by an elaborate system of jurisprudence.

    When citizens of one country, say Algeria, enter into a marriage there that is actually or potentially polygamous and then come to settle in, say, France, where marriage is strictly monogamous, the courts have to ask themselves whether the relationship between a man and the ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Code Civil, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them. The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country.

    On the other hand, as Lord Meadowbank, a great Scottish judge, observed, “The whole order of society would be disjointed, were the positive institutions of foreign nations concerning domestic relations and the capacities of persons regarding them, permitted to operate universally and form privileged casts living each under separate laws, like the barbarous nations during many centuries after settlement in the Roman Empire.”

    No jurist has suggested there is an easy solution and legislators have sedulously avoided the topic.

  • veritasetgratia

    This is why we need to be able to argue the Natural Law if we need to; depending on what Justice Kennedy says, maybe that argument could still fly.

  • RainingAgain

    The only conclusion that I see derivable from Kennedy is that all morals are irrational animi. To consider abortion wrong could be considered an irrational animus, similarly any moral opinion that differed from the secular line which one might air in public. The only authority Kennedy has for his assertion is himself and the power he happens to possess. Nietzsche’s predictions of what would happen if God is dead are proving to be correct. We are moving beyond Good and Evil towards Will to Power and so very quickly. May the Living God’s Will be done on Earth as it is in Heaven.

  • givelifeachance2

    Why has no pro-family lawyer pushed forward the very secular argument that homosex “marriage” discriminates against the opposite sex? A suit could be launched on behalf of any child falling under the control of a homosex couple to nip this bigoted peculiar institution of homosex marriage in the bud.

  • Craig Payne

    Any thoughts on the lawyer arguing for our side? The (very) little I’ve heard was not terribly reassuring.

  • monica

    It seems to me that some actions are abhorrent to people because they are unnatural. There is something in humans that guides us, no matter what religion we are. We seem to have an innate understanding of some basic principles. We eat food, for example. Generally speaking we do not have problems with people eating things other than food. Societies have grown up encouraging family life — one woman, one man and their children. Catholics believe that these principles are natural laws that God has put into humans to guide them. Others might call them natural instincts. However, it seems that in the last hundred years or so it has become fashionable to control nature — even overcome nature. A twisted idea that humans couldn’t be trusted to control their own natural tendencies gave rise to totalitarian regimes. And we began allocating resources in an unprecedented way toward studying ways to control nature in the sciences. In an effort to quell violence children, especially boys, were taught to “never follow your instincts.”
    On the other hand, we have Christians, who understand that nature has its flaws when we consider our own natural concupiscence and tendency toward selfishness, and who have for centuries written about and worked on ways to overcome nature as she presents herself in these challenges to holiness. We have Saint John of the Cross saying, for example, “Always do whatever is the least pleasing,” and in this way Christians have disciplined themselves and become holy. This statement taken out of context, however, can be very confusing to a person who is not steeped in the way to holiness and who is taking his Christianity piecemeal as many Christians are today. It seems that this had led to a lot of confusion in the Christian community. We are trying to “deny ourselves” to the point where we are not even listening to our own common sense.

  • Elastico

    On the liberal left this is not about what is right or wrong or even logical. It is about an agenda and the power codify that agenda, which bit by bit is out to destroy the foundation of the ‘old’ civilization. Take a look at abortion. Not even an ultrasound image showing us the human life can prevent the killing much less change opinion. We are the modern version of the late-stage Roman Empire. Lots of evil things being done while we are distracted by the circus.

  • Manfred

    One fact that gives great assurance is that six Justices on the Court run from Catholic to catholic and they know that if they vote the wrong way, that they will be excommunicated. Does anyone believe this?
    For “millenia” the Church was referred to as ROMAN Catholic because it was based on the Roman model of LAWS. The attire of the priest at Mass were the vestments worn by Roman judges. The Church held dogmas, doctrines and the Creed. It has a Code of Canon Law. It could produce a Catechism (the first being the Didache in the first years of the Church). Men were attracted to the Church because it was MANLY.It set the bar high and It succeeded as It was accomplishing the Will of God. Look at the pathetic thing today.
    In the early 1980s, a priest named Enrique Rueda+ wrote a book titled The Homosexual Network”. Google him and the book. Is it any wonder that we are dealing with sodomite “marriage” thirty years later?

    • pupsncats

      How many excommunications have there been since Vatican II? No one need worry that no matter how heretical they are, no matter how often or loud they publicly proclaim their dissent against the moral teachings of the Church and no matter how much the clergy, the “experts”, the honored theologians, or the lay people who run the dioceses and the parishes lead people out of the true faith, they will face an excommunication.

  • gfazzari

    I have a growing animus for Justice Kennedy’s reasoning ability.

  • F. Avila Jr.

    Justice Kennedy’s agonizing over the millenial roots of traditional marriage seems to me so much judicial incense designed to persuade conservatives and his co-religionists that he understands the gravity of it all. When push comes to shove, he will discover the “right” to same sex marriage either in the due process or the equal protection clause (it won’t really matter which.) If that does not work, he can invoke the ethereal notions of “equal dignity” and declare that the right in question is now “fundamental” and “implicit in the concept of ordered liberty.” This should make for a good read, especially since the right in question just arrived here some 10 years ago.

  • pupsncats

    The Conciliar church has talked the talked (at nominal times) but not walked the walk.

    How has it defended marriage? By relaxing the rules of annulment. By constant talk of allowing the divorced and remarried to partake in the Body and Blood of Christ. By little to no meaningful marriage preparation.

    How has it spoken through its bishops and priests about the sin of cohabitation, promiscuity, contraception and abortion? A few meetings and documents but how often is anything heard from the pulpit about sin?

    Of course the state is going to approve of sin. It reaps many benefits by doing so. It grows and gains more authority over human life with each approval of that which God has condemned.

  • Chris R

    It’s disturbing that five arrogant judicial tyrants can so presumptuously nullify the greatest democracy in the world. A second catastrophic abuse of power like the Roe decision would be the last nail in the coffin of our democracy.

    • Thomas Sharpe

      Let us hope though, that this insanity will aid in the destruction of the Roe decision. It seems to me it will; it’s only a question of whether or not this country will survive.

  • Kevin Byron Rowney

    In the beginning there were biological families which became clans. Clans over time formed the state ruled by the king and eventually the elected government. The state and its institutions parliament,executive and judiciary are creatures of the families. Surely then any change in the nature of the family would only be possible through an international referendum. In its absence the judiciary lacks standing on the matter.