In June of 2015, the Supreme Court, in a 5-to-4 decision in the case of Obergefell v. Hodges, declared that the U.S. Constitution contains a right to same-sex marriage (SSM). Immediately, any and all laws to the contrary became unconstitutional.
Here is the question I wish to address today: From this day forward what should be the attitude of American Catholics toward SSM? Should we acknowledge that we have lost the fight, and move on to other things? Or should we keep up the fight, hoping that someday we can not only reverse Obergefell, but re-enact laws in at least some states restricting marriage to one man and one woman?
I say we should do the latter, and this for two reasons. First, SSM tends to delegitimize the traditional institution of marriage; and since the primary social utility of that institution is to provide for the well-being of growing children, such delegitimization puts children at grave and multiple risks.
Of course, marriage has already been massively delegitimized during the past fifty years or so. No-fault divorce, tolerance of unmarried teenage sex, the widespread practice of unmarried cohabitation, acceptance of out-of-wedlock births – these developments, and others too, all of them functions of the so-called sexual revolution, have contributed to the delegitimization of traditional marriage; hence they have contributed to putting young children at financial, emotional, educational, and moral risk.
It might be argued, and often is argued, that, the process of destroying marriage having already advanced so far, gay marriage at this point hardly makes a difference. Marriage having been weakened and trivialized, what difference does it make at this late hour if society permits gays and lesbians to marry? The camel’s back is already broken, so adding one more straw won’t matter. The horse has already escaped; why bother closing the barn door?
Though there’s some validity to this view, my own opinion is that gay marriage is still worth opposing: not as an end in itself, however, but as a first step toward rolling back the progressive delegitimization of marriage that has occurred in the past few decades.
If we are not interested in attempting this rollback, we might as well drop all objections to SSM. To reverse SSM while allowing all the other attacks on traditional marriage to remain in place would be like a plumber patching one hole in a leaky pipe while leaving ninety-nine other holes open for water to pour through. The plumber first of all needs to turn off the water supply.
Second, we should continue opposing SSM because of the Supreme Court’s method of “finding” rights in the Constitution that are not there. It did this (as the current Supreme Court now recognizes) in 1973 in the famous abortion case, Roe v. Wade. And it did it again in Obergefell.
Is there anybody who honestly believes that the drafters of the Constitution and its amendments, or the members of Congress who voted to send amendments to the states, or the members of state legislative bodies who voted to adopt the Constitution and its amendments, had the least intention of making abortion or same-sex marriage Constitutional rights? Of course not.
Progressive legal scholars and judges say that it doesn’t matter what the authors of the Constitution intended; what counts is the “spirit” of the Constitution, and this spirit is a spirit of personal liberty, a spirit that has implications that go far beyond anything subjectively intended by the original authors.
The framers of the Constitution, we are told, were something like Dr. Frankenstein. Using a little of this and a little of that, they put together a great piece of legal machinery, the Constitution of the United States. And then they lost control of it. It turned out to have a will of its own, quite independent of the will of its creators.
Hence, the job of the Supreme Court, when it comes to interpreting the Constitution, is not to ask, “What was the will of Dr. Frankenstein?” Rather, it must ask: “What is now the will of the monster that Dr. Frankenstein created?”
The trouble with this way of interpreting the Constitution is that it can be used by any dominant ideological party to make our foundational document say anything the dominant party wants it to say.
At the moment the dominant ideological party in the United States is the party of secular humanism. So who can be surprised when the Court, at those moments when it has five or more members who are sympathizers with secular humanism, tells us that the Constitution is a secular-humanist document?
And if the dominant ideological party were Marxist, we’d be told that the Constitution is an essentially Marxist document. And if the dominant ideological party were fascist, we’d be told that the Constitution is an essentially fascist document. Given this way of reading the Constitution, the document can be used as a cudgel with which to strike blows against foes of the dominant ideology.
And who are the most important foes, hence the ones most likely to be beaten with this cudgel? Catholics, Evangelical Protestants, and Mormons. At the moment, thanks largely to Donald Trump and Mitch McConnell, the dominant ideology lacks a majority on the Supreme Court. But that situation is not likely to endure very long.
And in any case, even without control of the Court, secular humanism controls many other powerful American institutions – including the press, the entertainment industry, our great universities, the Democratic Party (my old party), and, to a rapidly growing extent, our public schools.
Just as Catholics have a creed, so do secular humanists have a creed, and one of the principal articles in that anti-Christian creed is that the U.S. Constitution gives sanction to all secular humanist values, counting them as “fundamental human rights.”
As long as we Catholics offer no resistance to that article, we mustn’t be surprised that our religion continues to slide downhill in America.
You may also enjoy:
Fr. Gerald E. Murray’s The Priest’s Role in Marriage Preparation
Eduardo J. Echeverria’s Marriage in light of Creation, Fall, and Redemption