Marriage and the Court: The Expected Arrives

The “right to abortion” has been celebrated among its votaries as the remedy to that persisting problem in the human condition: the “unwanted” pregnancy, which arrives out of season, at the wrong time, with the wrong partner. Question: when was the last time we heard of a gay or lesbian couple who were surprised that they had “conceived,” without exactly intending it? That brute, obvious fact of nature should have been a telling guide in itself in explaining why a law of marriage has been cast around the relations of a man and a woman.

Chief Justice Roberts took the trouble finally to make that elementary point. But he made it now in a dissenting opinion as the Court took the final step last Friday and installed “same-sex marriage” as a constitutional right:

The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

There is the elementary core of the matter. As Ryan Anderson keeps pointing out, the State is not in the business of licensing friendships and other “intimate, caring” relations. But there is a critical need to create a framework of commitment to envelop the begetting and nurturance of children.

And yet, these matters, grounded in the plainest nature, accessible to ordinary folk, are apparently too primary, too simple to sway the mind of a Justice Anthony Kennedy, drawn to theories of persons ever seeking to “express their identity” in the ever elusive search for “meaning” in their lives.

Some of us were clinging to the slenderest hope that this case of Obergefell v. Hodges might have a less astounding outcome. But no one suffered any doubts that Anthony Kennedy was determined to move along the path he had marked off nineteen years ago in Romer v. Evans and reach the conclusion to which that logic inescapably pointed: The aversion to the homosexual life could be explained mainly by an irrational “animus.” The laws that refused to accept marriage for gays and lesbians must be affected by the same irrational animus. Ergo, those laws cannot strictly be “justified.” They cannot rightly claim then the standing of law.

"Adam and Eve" by Rosario de Velasco, 1932 [Museo Reina Sofia, Barcelona]
“Adam and Eve” by Rosario de Velasco, 1932 [Museo Reina Sofia, Barcelona]

We have heard already, and we will rightly hear more, on the point that five lawyers took it upon themselves to recast an institution that has been bound up with the laws ever since their have been laws. In that way, they also removed the subject of marriage from the political arena, where ordinary citizens could settle on the laws they would have governing their lives. That is all true, but it reflects also the reigning vice of “conservative jurisprudence”: the conservatives are far more comfortable talking about “process” than about the substance of the thing.

And so on the day after the decision in Obergefell, the Wall Street Journal complained that that “the Constitution is silent about marriage and social-policy preferences, which are supposed to be settled by the people and the political branches.”   The editors have no quarrel, that is, with the substance of the decision, but with the way in which it was produced.

And yet the Constitution had been equally silent about marriage when the Court struck down the laws that barred marriage across racial lines. It was a matter of explaining why race was not a justified criterion in judging the fitness of anyone to marry. What had to be explained then was why it was not unjustified in the same way to insist that marriage made sense only as the relation between a man and a woman.

At the heart of the matter was that stubborn fact of “sex” in the strictest sense, the sex that has as its telos, or purpose, the begetting of children. It’s the purpose that explains why “Male and female He created them.” What the lawyers seemed always too embarrassed to explain was that there was a natural correspondence between the bodily acts of coupling in men and women and the begetting of the children who would embody, in one flesh, the wedding of that man and woman.

Yes, couples may be childless, and they may adopt children, as gay and lesbian couples may adopt children. But none of that displaces the meaning that must ever attach to that joining of bodies in what is delicately called that “reproductive act.” Any clinician affecting to use that posture as a way of getting “closer” to his patient would be brought up on charges.

Of course it would help here if people had the sense of sacraments – of a larger meaning that may attach to simple, bodily acts. Twenty-five years ago the lawyer-activist Nan Hunter was candid enough to say that the purpose of the campaign for gay marriage was to “expose and denaturalize the historical construction of gender at the heart of marriage.”

After all the litigation, with theories high flown, that question of “nature” remained the core of the problem, and it was the matter that the lawyers found too delicate or too simple to explain.

Hadley Arkes

Hadley Arkes

Hadley Arkes is the Founder/Director of the James Wilson Institute in Washington, D.C. and professor of jurisprudence emeritus at Amherst College. He was the architect of the Born-Alive Infants' Protection Act. 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.



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