Category archives: Marriage

Incest, Polygamy: Where do We Draw the Line and On What Basis?

by Arina Grossu

July 28, 2015

After the recent legalization of same-sex unions, the internet was in a flurry with the logical consequences of the decision.  If the basis of the decision was about adult consent and autonomy, what about polygamy?

Chief Justice John G. Roberts said it best in his dissent in Obergefell:

Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not,” Roberts wrote. “Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.”

 

If marriage is not between one man and one woman, why should it be between two people?  Jonathan Turley, the lawyer who won the polygamy marriage case in Utah for Kody Brown and his four “Sister Wives” said “…much of the language of the majority clearly resonates with our arguments against the criminalization of private consensual relations.  It also speaks to the stigma that is borne by families in being excluded in society.  That is an even greater danger when your entire family is declared a criminal enterprise merely because the parents chose to cohabitate as a plural family.”

While polygamy is as “taboo” today as same-sex marriage was in decades past, the legal reasoning for opposing polygamy now has no foundation, says Fredrik deBoer, writing for Politico. With the Supreme Court decision, same-sex union advocates have succeeded in undoing natural marriage, he says. Now there is no reason for “progressive people” to oppose extending marriage rights to any and all sexual romantic relationships that adults choose.

Let’s fast-forward to another taboo topic (and with good reason): incest.  Some argue that incest should be allowed because of the same arguments for autonomy, self-fulfillment and consent that we find in the arguments for same-sex unions and even for polygamy.  Debra Lieberman, assistant professor at the University of California, Santa Barbara said, “We need to start asking if it’s OK to limit someone’s freedom just because we have a ‘yuck’ response to it.”

The author of this article seeks to normalize incest saying,

“When Melissa, an administrative assistant in a law firm who’s in her 20s, met an older woman named Lisa a few years ago, it was love at first sight. The two have been in a relationship ever since but know that marriage is out of the picture. And it’s not because they are lesbian. It’s because they are mother and daughter…
It wasn’t that long ago when homosexuality and sadomasochism were also considered taboo. These days, though, Hollywood’s offerings are packed with homoerotic imagery and commuters are happy to crack open a copy of Fifty Shades of Grey on the morning train to the office. So if pop culture is anything to go by (and when isn’t it?), there are some signs that romantic love between family members is slowly becoming less socially outrageous. Look no further than HBO’s Game of Thrones— which explicitly portrays sex between a brother and sister — or scenes of a mother and son going at it in Boardwalk Empire.”

Normalizing incest would be to irresponsibly promote its painful, horrible consequences—all in the name of autonomy.   This would lead to health and psychological consequences which are clearly not in the best interest of those participating in it or of any children involved.  Even if the two relatives are consenting adults who perceive their lifestyle choice as normal, should it have a stamp of approval and if not, on what basis do we draw the line if “love is love?”

We see how the cookie crumbles. So if marriage is no longer legally between one man and one woman, then on what basis do we draw the line against any kind of consensual “marriage” relationship? What about the “rights” of polygamists or polyamorists like those described in “One Big Happy Polyamorous Family?”  And what about the “rights” of those in incestous relationships?

We have a moral obligation to severely and urgently draw the line. 

Obergefell Prompts Instant, Unflinching Resistance in the True Church Reaction of Tenth Presbyterian (Philadelphia)

by Chris Gacek

July 14, 2015

The Supreme Court’s decree in Obergefell v. Hodges redefining marriage was marked by a smug, self-satisfied “we know best” attitude. That must be obvious because one does not overturn the public policy choices of tens of millions of voters and millennia of human experience without being arrogant. That said, Obergefell has another dimension to it: there is the unspoken assumption that after the Supreme Court speaks those who object to its decision will roll over and submit.

In the vast majority of cases that would be true. In this instance, however, the Supreme Court has badly misjudged the situation because its edict explicitly contradicts the teaching of the Church on matters of the definition of marriage and the dual nature of human sexuality (male/female complementarity). These are not negotiable positions. The press trumpets announcements from every wayward church but ignores the real story.

The real story is that orthodox churches have almost instantly discerned the severity of the situation but have not retreated an inch in refusing to accept the redefinition of marriage. Here is one example.

Tenth Presbyterian in Philadelphia (“Tenth”) is a significant church in the history of American Protestantism in the last one-hundred years. Truly major figures including Donald Grey Barnhouse, James Montgomery Boice, and Philip G. Ryken have been the senior ministers there. On July 2, 2015, the current senior minister, Liam Goligher, wrote a pastoral letter to the congregation about the Obergefell Supreme Court decision.

It is a powerful letter that minces no words and leaves no door open for accommodation:

The world is hostile to God and its institutions eventually reflect the widespread rejection of his law— [a] “mystery of lawlessness” is at work and we have already seen this in the abortion horror that has swept away the lives of millions of American children, and we see this daily in our own instinct to do things our own way. Perhaps an even greater evil was perpetrated in the redefinition of “freedom” as each individual having the freedom to pursue their own vision of happiness no matter its impact on others. That irrational view is likely to come back to bite us. SCOTUS may have had its say for now but there is a higher court and a greater judge before whom they and we must one day stand. The law of God does not rely on any human court or cultural consensus for its legitimacy.

Pastor Goligher added, “Marriage between a man and a woman was [God’s] idea—it perfectly expresses unity in diversity—and it remains the revealed setting for the continuation of our race; the best context for the raising of our children; and the sure foundation of a sane society.”

The Tenth will not be retreating – like myriad other churches across the nation. Is this really the fight the Supreme Court wants? I guess so.

Justice Kennedy and the Lonely Promethean Man of Liberalism

by Rob Schwarzwalder

July 9, 2015

In The Public Discourse, David Azerrad, director of the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics, has written the best analysis of the underlying philosophy of Justice Kennedy’s opinion I have yet read. It is penetrating, eloquent, and compelling. The full text follows.

http://www.thepublicdiscourse.com/2015/07/15286/

Justice Kennedy and the Lonely Promethean Man of Liberalism

by David Azerrad

July 8th, 2015

Conjured as it was from Justice Kennedy’s imagination, the Supreme Court’s decision in Obergefell v. Hodges has little to teach us about the Constitution. It does, however, afford us keen insights into the liberal worldview. In the opinion, it is less Anthony Kennedy the Supreme Court Justice than Anthony Kennedy the aspiring liberal political theorist who speaks.

Woven throughout his musings on the dynamic synergies between the various clauses of the Fourteenth Amendment is the central premise of modern liberalism: individual autonomy. It is the very first argument that the Court offers on behalf of the newfound constitutional right to same-sex marriage.

Indeed, in the opening sentence of the decision, Kennedy proclaims all individuals free “to define and express their identity,” thereby echoing his even more grandiloquent pronouncement in Planned Parenthood v. Casey that at “the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

On this foundation, the edifice of modern liberalism is built. We are all sovereign individuals, radically free to fashion and refashion ourselves into anything we so please at any point in our lives. Man is the undefined animal. He is auto nomos—self-legislating. Neither God, nor nature, nor tradition, nor the obligations he previously contracted may hem him in. Bruce Jenner may become Caitlyn whenever she so pleases—and then become Bruce again if he wants.

Beyond the rudimentary demands of refraining from harming others, nothing may constrain the choices we make in defining and redefining our identity. This is democratized, domesticated Nietzscheanism. Prometheus not fully unbound—just mindful of the rights of others. This, it should be pointed out, is also the starting-point of libertarianism—but also its end point. Not so for liberalism.

Loneliness, Insecurity, and the Need for Recognition

 

Liberalism’s exalted view of man’s limitless possibilities, paradoxically enough, is not accompanied by an equally exalted view of his inner strength and resolve. One might think that liberalism would encourage individuals to trust in themselves and to be scornful of society’s staid bourgeois conventions in defining and expressing their identity.

It doesn’t. For all his purported god-like powers of self-creation, liberal promethean man is actually a weak, insecure, and isolated individual. It is not enough that he define and express his identity. He needs others to recognize it, embrace it, and celebrate it. He needs the state to confer dignity upon it.

Otherwise, he may find himself marginalized by his peers, crippled by their disapproving looks, and insecure in his choice of an identity. After all, a particular lifestyle or living arrangement may not be illegal, but it can still be viewed as dishonorable by some. Even before the Court’s ruling, gay couples could marry in a house of worship or banquet hall in any of the states that still defined marriage as the union of a man and a woman. But they carried the lack of state recognition for their marriages like the mark of Cain.

Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty, ” explains Kennedy. The Court’s opinion is replete with references to stigma, hurt, and humiliation. “It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.” It is therefore incumbent upon the state to dignify them. As Matthew Franck wrote in Public Discourse last week: “In Kennedy’s mind, the Constitution has been converted into a great Dignity Document.”

An earlier generation of liberals would have told the man to go to hell with his marriage certificate. “We don’t need no thought control,” they would have yelled. “All in all you’re just another brick in the wall!” To have the suits recognize your alternative lifestyle would have defeated the whole purpose of embracing it in the first place.

Contemporary liberalism, by contrast, views man as a weak and fragile creature. Adversity doesn’t forge character. It stigmatizes and demeans. Unless others affirm our choices, they are worthless. We have no unshakable inner convictions or faith. We are all insecure.

Promethean man, it turns out, is a pathetic creature. He thinks himself the measure of all things, but must in fact have his solipsistic existence be publicly affirmed and dignified by the state. He is simultaneously everything and nothing.

Kennedy’s Feigned Appeal to Nature

Liberalism’s celebration of human autonomy is obviously incompatible with any conception of an unchosen nature that restricts our scope of action. Nevertheless, Kennedy twice appeals to the idea of a permanent nature in the decision. Homosexuals have an “immutable nature,” he asserts. They are born gay and cannot change. So are heterosexuals, bisexuals, and all other flavor-du-jour-sexuals for that matter: “sexual orientation is both a normal expression of human sexuality and immutable.”

The essence of liberty is the freedom to define and express one’s identity, just not when it comes to sexual orientation, which is innate and immutable. We can choose our gender—that is not fixed at birth—but our sexual orientation is handed down to us by the gods and must be accepted with passive resignation (for a contrasting view, see this Public Discourse essay by Paul McHugh and Gerard Bradley).

Turning to marriage, Kennedy implicitly carves out another exception to the realm of autonomy. Marriage, though clearly not possessing a permanent nature, is nevertheless “essential to our most profound hopes and aspirations.” This implies that happiness outside of marriage is not possible. No one will be forced to get married—but all who aspire to be happy (and who doesn’t?) will want to. Marriage is no longer what earlier liberals called an “obscene bourgeois institution” or “a comfortable concentration camp.”

Only marriage can respond “to the universal fear that a lonely person might call out only to find no one there,” writes Kennedy. Not to marry is to “be condemned to live in loneliness.” Lovers, friends, parents, siblings, cousins, aunts, uncles, nephews, nieces, neighbors, coreligionists, brothers-in-arm, colleagues—none of them can be counted on to respond to our lonely cries of anguish. All bachelors are not only unmarried—they’re also unhappy.

All this adds up to a really interesting coincidence. In deliberating on the question of gay marriage, Justice Kennedy proclaims that we are absolutely free to be who we want to be—except when it comes to gayness and marriage.

Only Kennedy’s syllogism trumps autonomy:

1. Everyone has a right to pursue happiness.

2. No happiness is possible outside of marriage.

3. Sexual orientation being immutable, gay marriage is therefore a right.

Either Kennedy is a sloppy thinker who hasn’t thought through the implications of the autonomy he celebrates, or this is a calculated move on his behalf to elicit public support for his pronouncement by bending his argument to appeal to two widespread beliefs: people are not responsible for their genes, and marriage is good.

Either way, this is not a rigorous argument. But it is fitting that a decision that reveals the contradictions of modern liberalism should also reveal the contradictions of Kennedy’s arguments.

Supreme Chaos

by Rob Schwarzwalder

June 30, 2015

Last week, the Supreme Court overturned the votes of more than 50 million people in 31 states concerning same-sex marriage, finding, instead, a constitutional “right” for same-gendered persons to marry. They blithely dismissed the will of the voters in order to find this “right,” rejecting the Tenth Amendment’s affirmation that those things not specifically articulated in the Constitution as within the province of the federal government belong to the states and the people.

In a ruling on the shaping of congressional districts, issued today, Justice Ruth Bader Ginsburg – a leading advocate of a constitutional “right” for same-sex partners to marry – wrote the following: “The animating principle of our Constitution [is] that the people themselves are the originating source of all the powers of government.”

Affirming federalism is not a matter of whim; it is foundational to our system of government, even our existence as a nation. Yet, troublingly, this subjective application of the Founder’s political philosophy seems to be the pattern of our current Supreme Court.

Four Short Observations about Justice Kennedy’s Opinion on Same-Sex Unions

by Rob Schwarzwalder

June 26, 2015

Homosexuality is an “Immutable” Characteristic

Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities.  And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.” Opinion of the Court, p. 4

Wrong: Homosexuality is NOT an immutable characteristic.  This is documented copiously and is demonstrated anecdotally by everyone from Rosaria Butterfield to Chirlane McCray, the wife of New York Mayor Bill DeBlasio.

As reported in an amicus brief for the Family Research Council, an examination of just some of the complaints that have been brought to date challenging state marriage laws reveals that dozens of the plaintiffs seeking to marry someone of the same sex previously were married to someone of the opposite sex. Notwithstanding their (presumed) sexual orientation, they were issued a license to marry. It might be argued that at the time of their previous marriage, they were not homosexual. But that response creates a new problem. If they were heterosexual then, but are homosexual now, then their sexual orientation could not be said to be immutable. – FRC Senior Fellow Peter Sprigg, The Wrong Argument Against Traditional Marriage, April 27, 2015

Changing Understandings of Marriage”

The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution—even as confined to opposite-sex relations—has evolved over time.  For example, marriage was once viewed as an arrangement by the couple’s parents based on political, religious, and financial concerns; but by the time of the Nation’s founding it was understood to be a voluntary contract between a man and a woman … Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.” Opinion of the Court, pp. 6-7

Wrong: The nature of marriage as the union of one man and one woman has never changed. Legal matters attendant to marriage (women’s property rights, arrangements by parents, etc.) have changed, but the nature of marriage has itself never changed.  Kennedy’s argument says, in essence, that because a car now has airbags, it should be called an airplane.  Incorrect: It remains a car, even if improvements have been made to its engine, its safety, etc.

These aspects of marriage—the complementarity of male and female, and the irreplaceable role of male-female relations in reproducing the human race—are part of the original order of creation, and are evident to all human beings from the enduring order of nature. These common elements of marriage are at the heart of our civil laws defining and regulating marriage. Therefore, people of all cultures and religions—including those who lack faith in God, Christ, or the Bible—are capable of participating in the institution of marriage. – Andreas Kostenberger, Ph.D., “The Bible’s Teaching on Marriage and Family”

Homosexuality is analogous to race

When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.  Applying these established tenets, the Court has long held the right to marry is protected by the Constitution.  In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men’.” Opinion of the Court, p. 8

Wrong: Race is immutable and benign.  It is irrelevant to with one’s character or conduct.  Homosexuality is not immutable and those who practice same-sex intimacy are engaging in behavior that has intrinsic moral content.

One of the four criteria for defining a classification such as sexual orientation as suspect—which in turn subjects laws targeting that class of people to the highest burden of proof—is that the group in question share an immutable characteristic. The immutability of sexual orientation is hardly a settled matter—just ask Anne Heche (the former partner of celebrity and lesbian Ellen DeGeneres who has now affirmed her heterosexuality). - Margaret Talbot, “Is Sexuality Immutable?” The New Yorker, January 25, 2010

Marriage is a matter of “individual autonomy”

A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Opinion of the Court, p. 13

Wrong: While individual autonomy in terms of “personal choice” is “inherent in the concept” of marriage, marriage is not strictly about personal volition.  It is a social institution designed for procreation and child-rearing in a complementary household in which a child benefits from the influence of differently-gendered parents.

Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a mother and a father. Redefining marriage does not simply expand the existing understanding of marriage; it rejects these truths. Marriage is society’s least restrictive means of ensuring the well-being of children. By encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role. The future of this country depends on the future of marriage. – Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It”, Heritage Foundation, March 11, 2013

Overview of Obergefell v. Hodges: Supreme Court Discards Voters’ Views on Marriage

by Travis Weber

June 26, 2015

In a 5-4 opinion, the Supreme Court ruled in Obergefell v. Hodges that states must license same sex marriages and recognize licenses issued by other states. The decision was based on the due process and equal protection provisions of the Fourteenth Amendment.

There are two over-arching errors in this decision.

First, in reading this right into the Constitution, the Court played social policy maker instead of judge. This issue should have been left to the states, but the Court chose instead to make extensive pronouncements of social policy and create a right to same sex marriage under the Constitution.

Second, the Court overlooks huge logical gaps throughout its use of precedent and case law. All of the marriage decisions the majority relies on pertained to marriage between a man and a woman. None of them dealt with a marriage between two people of the same sex. To claim all those decisions contemplated such relationships as constitutionally protected marriages is an incredible leap in legal reasoning. However, it is more understandable when one views marriage (as the majority appears to do here) as simply an interaction between civil government and the individual (Justice Kennedy stated the institution of marriage “has evolved over time). The Court arrives at its conclusion here by viewing marriage as simply whatever man says it is; once its reasoning is divorced from God’s authority, the Court more easily appends same sex “marriage” to the view of “marriage” it believes is constitutionally protected.

If there is a silver lining to the ruling, it is that because this ruling is heavily based on due process grounds, and focused less on equal protection (and avoiding animus entirely), there could be more leeway to protect religious freedom when regulating matters related to same sex marriage.

Majority Opinion

In the majority opinion, authored by Justice Kennedy (and joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court relies on its own view and judgment of the history of marriage, along with legal validation of gay rights in Bowers and Lawrence, and subsequent more recent cases, as purported precedent for its decision.

In an attempt to legitimize its reasoning and conclusions, the Court makes many social science pronouncements on marriage—such as “new insights have strengthened, not weakened, the institution of marriage” and “many persons did not deem homosexuals to have dignity in their own distinct identity.” Regardless of their accuracy, the Court has no authority or expertise to make such claims.

At one point, Justice Kennedy claims the petitioners did not intend to denigrate natural marriage. The problem is, whether they intend to or not, disrupting marriage as God intends it will eventually lead to its destruction.

Due Process

The Court first held that Fourteenth Amendment substantive due process protections required states to license same-sex marriage. In the Court’s view, this right extends to “personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Which rights are protected by substantive due process “requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect… . That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries.”

The Court starts by recognizing that it has long protected the “right to marry”—relying on rulings in the racial, child support, and prison contexts. The Court recognized that none of these dealt with same sex marriage, and attempts to excuse itself: “The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”

At one point (which is lacking airtight reasoning), the Court basically acknowledges it is recognizing this right for the first time—yet marginalizes Glucksburg, the case governing recognition of due process rights—and proceeds to rely on four reasons for doing so:

(1)   “[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy” (citing the racial, child support, and prison context). “Choices about marriage shape an individual’s destiny.” “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”

(2)   Relying on Griswold, the Court claims: “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”

(3)   “A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”

(4)   “Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.”

Ironically, Justice Kennedy’s third point is precisely why children need a mom and a dad. The Court here relies on Pierce, a case which by no means contemplated that marriage could be anything other. And his fourth point is exactly why marriage is between a man and a woman. Calling it anything other reveals how when officials (including judges) depart from an understanding of what higher law and natural law say about mankind, their reasoning goes astray.

Throughout the majority opinion, the Court makes social pronouncements it has no authority to make. And none of the cases it relies on ever contemplated that marriage could be anything but between a man and a woman. Justice Kennedy quotes the 1888 case Maynard v. Hill, which relied on de Tocqueville to explain that marriage is “‘the foundation of the family and of society, without which there would be neither civilization nor progress.’ Marriage, the Maynard Court said, has long been ‘a great public institution, giving character to our whole civil polity.’”

Does Justice Kennedy sincerely believe that the Maynard Court, which he quotes, contemplated its holding as applying to marriages besides those between men and women? Or that that Court would view such marriages as helpful to the “social order?” Yet he proceeds to claim “[t]here is no difference between same- and opposite-sex couples with respect to [the] principle” that marriage plays an important part in the “social order.”

Equal Protection

The Court next held that the state laws at issue also violated the Fourteenth Amendment’s equal protection provision. In its earlier marriage cases, the Court asserts, equal protection and due process grounds had been intertwined. The Court attempts to show that due process and equal protection also intertwine to protect same sex marriage in this case. The equal protection grounds are less clear and do not feature as prominently as the due process arguments in the majority opinion. At this point, the Court also expressly overruled Baker.

In his opinion, Justice Kennedy acknowledged his recent pro-democracy thinking in Schuette, but (unfortunately) did not decide to heed it:

Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuette v. BAMN, 572 U. S. ___ (2014), noting the “right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times.” Id., at ___ – ___ (slip op., at 15–16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, “[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” Id.,at ___ (slip op., at 15). Thus, when the rights of persons are violated, “the Constitution requires redress by the courts,” notwithstanding the more general value of democratic decisionmaking. Id.,at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity.”

Why, then, did Justice Kennedy decide as he did here? In essence, he appears to feel differently about private sexual matters compared to other issues; this is evident in his consideration of Bowers and Lawrence, which he discusses here. Thus, the Court denied its own reasoning (indeed, Justice Kennedy denied his own reasoning) from the Schuette case.

Justice Kennedy decides that same sex marriage will not harm natural marriage, and ends with another policy pronouncement:

Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so.”

The Court concludes that its reasoning requiring states to license same sex marriages would undermine any opposition to recognizing such marriages from out of state. Thus, the Court held that states must issue same sex marriage licenses and must recognize same sex marriages performed in other states.

Here, the Court’s thinking again reveals an approach to marriage that only appears more logical (if at all) when God is removed from the picture, and is evidenced by such statements as: “It would misunderstand these men and women [the petitioners] to say they disrespect the idea of marriage.” Unfortunately, the truth that this reasoning harms marriage by removing its Author from the picture whether or not people intend to was missed here.

The Court does briefly address religious liberty concerns:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”

While this recognition of religious liberty protections is better than nothing, it does not accurately capture a satisfactory vision of how religious liberty should be (or even currently is) constitutionally or statutorily protected. Several dissenting Justices make similar observations.

Dissenting Opinion by Chief Justice Roberts

Chief Justice Roberts wrote a dissenting opinion (joined by Justices Scalia and Thomas), noting that the majority ruling was a policy decision, not a legal decision. He observes that the changes in marriage laws over time (while changing the regulation of marriage in some respects) did not, as the majority claims, alter the “structure” of marriage as between a man and a woman.

In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here.”

He aptly pointed to Dred Scott as an example of when the Court’s view on substantive due process got out of hand and is now viewed with distain many years later.

The Chief also recognizes that the majority’s claim that marriage is restricted to “two” people just can’t logically hold up under its own reasoning, and could easily be extended to plural marriage:

Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.”

He continues:

Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”

Chief Justice Roberts then quotes Schuette, and notes that although there is still a losing side in a democratic debate, at least those people will know “that they have had their say,” unlike here, where the court has disenfranchised over 50 million Americans.

He also recognizes religious liberty issues which may arise:

Today’s decision … creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage… . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.”

There is more:

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage… . There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.”

The Chief then takes issue with the majority’s statement that laws supporting natural marriage are demeaning; he does not like the majority’s implication that those supporting such laws wish to demean anyone. He concludes that “while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.”

Dissenting Opinion by Justice Scalia

Justice Scalia also dissents (joined by Justice Thomas) and accuses the majority of legislating, not judging.

He aptly points out that the Windsor majority blatantly contradicts itself today:

It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

Justice Scalia concludes with a warning:

With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.”

Dissenting Opinion by Justice Thomas

Justice Thomas also dissents (joined by Justice Scalia), noting the danger (as evidenced today) of substantive due process doctrine—by which rights “come into being” under the Fourteenth Amendment. He argues the Framers recognized no “right” to have the state recognize same sex relationships; there is no liberty to government benefits, just liberty from adverse government action.

He continued by focusing on the threat to religious liberty this decision represents, recognizing that while this ruling may change governmental recognition of marriage, it “cannot change” the religious nature of marriage. “It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.”

Justice Thomas also points out the problems with the majority’s conception of religious liberty:

Religious liberty is about more than just the protection for ‘religious organizations and persons … as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.’ … Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.”

Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty.”

Dissenting Opinion by Justice Alito

Justice Alito also dissented (joined by Justices Scalia and Thomas), arguing that the Court’s decision is based on a flawed understanding of what marriage is, and that it takes the decision out of the hands of the people who have the authority to decide it.

He also believes this decision threatens religious liberty:

It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women… . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected… . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

Justice Alito recognizes that the Court now makes it impossible for states to consider how to legislatively protect conscience rights should they want to do that while at the same time legislatively authorizing same sex marriage.

He concludes:

Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.”

What the Supreme Court(s) Said About Marriage: Part 3 (Washington)

by Peter Sprigg

June 25, 2015

At this writing, we are awaiting an imminent decision from the U.S. Supreme Court on a set of cases involving a claim that the Constitution requires states to permit civil marriages between persons of the same sex.

However, several Supreme Courts (state courts, that is) have already rejected similar arguments to those offered in Obergefell v. Hodges. Today, I present Part 3 of a four-part series with key excerpts from those decisions. Part 1 featured the earliest such decision, Baker v. Nelson (Minnesota, 1971). Part 2 featured the decision of Hernandez v. Robles (New York, 2006).

Today, we look at excerpts from Andersen v. King County, a 2006 decision by the Supreme Court in the State of Washington (legal citations are omitted or abbreviated).

The U.S. Supreme Court has said that individuals have a “fundamental right” to marry, as a “liberty” interest protected by the Due Process Clause of the Fourteenth Amendment. Advocates of redefining marriage argue that this “right” necessarily includes the right “to marry the person of their choice,” even if that person is of the same sex. The Washington court responded:

Nearly all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child-rearing. In Skinner v. Oklahoma, (1942), involving invalidation of a nonconsensual sterilization statute, the Court said “[m]arriage and procreation are fundamental to the very existence and survival of the race.” In Loving [v. Virginia, 1967], the Court said that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival” (quoting Skinner). In Zablocki [v. Redhail, 1978], the Court invalidated on equal protection and due process grounds a statute that prohibited marriage for any resident behind in child support obligations. The Court noted that

[i]t is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships… . [I]t would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.

The Court also quoted the statements made in Skinner and Loving. See also, Maynard v. Hill, (1888) (marriage is “the foundation of the family and of society, without which there would be neither civilization nor progress”).

This procreation emphasis is in contrast to the more adult-centered view of marriage promoted by those who would redefine marriage. In a footnote, the court declared that:

 … the right to marry is not grounded in the State’s interest in promoting loving, committed relationships. While desirable, nowhere in any marriage statute of this state has the legislature expressed this goal.

Like each of the supreme courts that have upheld one-man, one-woman marriage, the Washington court said that allowing infertile heterosexual couples to marry does not undermine the argument that the definition of marriage is rooted in interests related to procreation:

 … [A]s Skinner, Loving, and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race. Heterosexual couples are the only couples who can produce biological offspring of the couple. And the link between opposite-sex marriage and procreation is not defeated by the fact that the law allows opposite-sex marriage regardless of a couple’s willingness or ability to procreate. The facts that all opposite-sex couples do not have children and that single-sex couples raise children and have children with third party assistance or through adoption do not mean that limiting marriage to opposite-sex couples lacks a rational basis. Such over- or under-inclusiveness does not defeat finding a rational basis.

For more information on the legal arguments regarding the redefinition of marriage see: “Marriage at the Supreme Court: Why One-Man, One-Woman State Laws Remain Constitutional.”

One Hundred Forty-Four Years of Marriage

by Cordell Asbenson

June 24, 2015

Dr. Randy Olson recently released data (reported in the Washington Post) examining the rise and fall of marriages and divorces over the last 144 years. Using data from the Center for Disease Control’s (CDC) National Center for Health Statistics (NCHS), Dr. Olson compares the number of marriages and divorces per 1,000 people year by year. By analyzing these data–instead of the total number of marriages and divorces –Dr. Olson was able accurately to compare the rate of marriages and divorces over the past 144 years despite fluctuations in the population numbers.

The results of the data are disheartening, but expected.  It shows that the number of marriages in the United States has fallen consistently since the 1980s. What is more, the number of marriages has dropped to 6.8 per 1000 people, the lowest it has been since 1867, even lower than during the Great Depression.

Despite the fact that fewer people are getting married, intact marriages are as important now as they have ever been. To learn more about the importance of marriage for individuals, the economy, and society as a whole, visit the Marriage and Religion Research website: http://marri.us/home

Archives