Waiting for the Decision on Marriage

Note: Hadley Arkes was one of the architects of the Defense of Marriage Act, the law that the Supreme Court seems headed now to strike down this month. Professor Arkes led the testimony for the bill before the Judiciary Committee of the House on May 15, 1996. It’s through reader support that we’re able to bring directly to you people like him, who are active in the midst of some of the most consequential questions of our time. Please, help us in this crucial work and contribute to The Catholic Thing. – Robert Royal

Before my column appears again, and the cock crows three times, Justice Kennedy will have made up his mind as to whether he would be pleased to preserve for the American people the institution of marriage as the union of one man and one woman.

As Justice Kennedy has himself said, that arrangement has been with us for “millennia.” And yet it is Kennedy’s call, because there are four justices on the Supreme Court immanently ready to impose, as a requirement of the Constitution, virtually anything that the cultural Left is willing to advance in the name of “progress” and liberation. By simply adding his vote, Kennedy can bring about an outcome in which a bare majority of five persons can unsettle our laws and wreck an institution that has been bound up with “the laws” ever since there have been laws.

This was precisely the kind of situation that Lincoln denounced in his First Inaugural Address in regard to the decision of the Supreme Court in the Dred Scott case: two private litigants, perhaps even in a state of collusion, could join with a slim a majority of the Court, and make the public policy binding on the whole country. With that stroke, they would establish the jural ground for making slavery national in scope, and put the burden on the rest of the country to summon an extraordinary majority to pass a constitutional amendment to overcome that decision.

But Lincoln and the Republican Congress did not wait for a constitutional amendment. The Congress enacted, and Lincoln signed, a bill that would bar slavery from the territories of the United States, a move that contradicted and countered the holding in the Dred Scott case. The Court would be given the chance to take a sober, second look at what it had done, and if the Court did not back down, the political branches could indeed bring forth a constitutional amendment.

Of course, what could be said here about Dred Scott could be said with even deeper sorrow, and a deeper “body count,” about Roe v. Wade. And the word has been that Justice Kennedy would prefer to accomplish his ends, in the cases on marriage, without creating another Roe v. Wade. With the decisions already taken, Kennedy and his liberal colleagues have put in motion many judges in the lower federal courts to carry through the work and install same-sex marriage even without the need for the High Court to do more.

Anthony Kennedy
Anthony Kennedy

But if Justice Kennedy stops short, how would he do it? He could hold to his earlier view in the Windsor case, where he radically and implausibly denied that the federal government had any authority to pronounce on the meaning of marriage. Marriage, he could try to say again, must depend on the laws of the States.

But at the same time he could strike down the remaining part of the Defense of Marriage Act, which also happens to be the part that I had marked as the key component of the Act when I helped design it: The States would not be obliged to respect same-sex marriages coming in from another State. Unless that point were in place, one State could indirectly nationalize same-sex marriage for the rest of the country. A couple could simply get married in a State permitting same-sex marriage and “take their marriage home.” I suppose that the Court could pretend that the States be enjoined to respect those marriages coming in from other States, even while most people in the State remain in the familiar form of marriage.

But we could probably expect here to see a replay of what we saw recently in Indiana. There will be threats to call off conventions in Ohio until the laws are changed. Corporate leaders will join the call to make the State more welcoming to their gay and lesbian employees by accepting same-sex marriage. There will be intimations of businesses leaving the State, and the campaign, mobilized nationally, may simply be too much for local politicians to withstand. Still, while there is a chance to preserve the laws on marriage as they are, that issue will be contested in the political arena, and it can be won anew with the votes of the public.

And so, if Justice Kennedy plays to form, and does his gratuitous worst, it matters profoundly as to whether a political figure with standing gets up and plays the pivotal role that Lincoln played in the aftermath of Dred Scott.

When the decision in that case was announced, Lincoln began the devastating critique, which was built into a nationwide movement to counter and overturn that decision.   He taught us that the function of the statesman was to get clear in the first place on those issues that are truly central – and then show us how ordinary people can talk about that issue in the political arena.

With an articulate cry of the heart and head, Mr. Rick Santelli, on CNBC, spoke the words of moral outrage that ignited the Tea Party movement. And so the question is: Is there any political figure who could stand up, after Justice Kennedy has done his work, and say the words that summon the understanding that most people in this country still hold, and move them to say, in a surge of conviction, that “this will not stand”?



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.