Category archives: Marriage

Framing Christian Thinking About Human Sexuality: Three Theological Considerations

by Rob Schwarzwalder

August 17, 2015

What follows are three points regarding historic Christian teaching about human sexuality. This list is neither comprehensive nor thorough, but instead addresses three of the most commonly-raised issues relating to the Bible and sexual matters.

 

  1.  Of the three components of the Mosaic law, the ceremonial and sacrificial element was symbolic of both the need for holiness and the need of a mediator between God and man, and the civil element applied only to Israel in a specific historic context (although the principles are relevant - e.g., the prohibition against allowing children to play on rooftops so they won’t fall off was animated by trans-cultural need to protect children). The moral element of the Mosaic law articulated in Exodus through Deuteronomy is composed of commandments that are found from Genesis through Revelation. The moral law is applicable to all people at all times.
  2. Using careful exegesis and sound hermeneutical principles, faithful believers can come to different conclusions about eschatological, ecclesiastical, and other non-essential theological matters. But no honest evaluation of Scripture can lead to any conclusion other than that sexual intimacy is reserved for one man and one woman in the covenant of marriage. This teaching is not ambiguous; it is clear.
  3. If the Bible is God’s written Word, its teaching is not malleable and the truths it teaches cannot be tailored to any culture’s preferences. If all Scripture is God-breathed, its authority is final.  Thus, faithful Christians are not to employ fanciful exegetical gymnastic exercises to obtain the result they wish but are called by God to submit to His propositional, clear, and authoritative Word.

To learn more on this topic watch FRC’s lecture featuring Robert Gagnon, as well as our articles ‘Leviticus, Jesus, and Homosexuality’ and ‘The Bible’s Teaching on Marriage and Family.’

Is Homosexuality “Immutable?” Justice Kennedy’s Shaky Bridge to Redefining Marriage

by Peter Sprigg

August 5, 2015

Many conservative commentators have dissected Justice Anthony Kennedy’s majority opinion in the U.S. Supreme Court case of Obergefell v. Hodges. In that case, a slim 5-4 majority declared that the 14th Amendment of the Constitution requires every state to redefine marriage to include same-sex couples. One wonders what the authors of that 150 year-old amendment would have thought of this notion.

Few, however, have noted two passing comments that actually describe the key factual assumption on which the entire decision rests. Justice Kennedy declared—twice—that a homosexual orientation is “immutable.”

On p. 4 of the opinion, Kennedy writes,

 … [I]t is the enduring importance of marriage that underlies the petitioners’ contentions… . And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.

Then on p. 8, he says,

Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.

Why does this matter?

The “Right to Marry”

First, the core of Justice Kennedy’s argument is that homosexuals have been denied the “fundamental right to marry,” which the Court has described as a “liberty” interest protected by the due process clause of the 14th Amendment in earlier cases. The amendment says a state may not “deprive any person of life, liberty, or property, without due process of law”).

However, another key precedent concerning the analysis of “fundamental rights” under this clause, a 1997 case involving assisted suicide called Washington v. Glucksberg, has said that before a new “fundamental right” can simply be declared by the Court, there must be a “careful description” of the asserted right, and it must be shown that the “right” so described is “deeply rooted in this Nation’s history and tradition.”

This “Glucksberg test” was a serious problem for those claiming a “fundamental right” to same-sex “marriage.” It is obvious that a “careful description” of the right being asserted in the Obergefell case was “the right to marry a person of the same sex.” It is even more obvious that “the right to marry a person of the same sex” is not “deeply rooted in this Nation’s history and tradition.”

Justice Kennedy got around this seemingly insurmountable obstacle in two ways. First, he simply denied that the binding precedent of the Glucksberg test was actually a binding precedent. Justice Kennedy declared (wrongly), “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” It is notable that in the portion in which Kennedy made this statement, he cites a case from 1961 (Poe v. Ullman), rather than the later precedent of Glucksberg. Chief Justice Roberts pointed this out in his dissent, saying that “the majority’s position requires it to effectively overrule Glucksberg.”

Second, Justice Kennedy argues that the issue is not whether there is a “right to same-sex marriage,” but rather whether gays and lesbians, as persons, may exercise the “fundamental right to marry” which belongs to everyone.

The answer on the face of it is that, even when marriage is defined as the union of one man and one woman, people who identify as gays and lesbians are entirely free to marry. Marriage licenses have never inquired as to the sexual orientation of the spouses. A self-identified gay man may marry—as long as he marries a woman. A self-identified lesbian may marry—as long as she marries a man.

Sexual Attraction as the Basis for Marriage

This sounds absurd to many people—why would you marry someone to whom you are not sexually attracted?

To treat sexual attraction as the fundamental basis for the definition of civil marriage is to assume that the reason marriage is treated as public institution is to promote relationships that bring sexual pleasure to the spouses.

While this may be an important personal interest for the majority of people who marry, it is hard to argue that there is a public interest merely in promoting sexual gratification.

The federal government should not be deciding if people can marry based on their sexual interests.  After all, don’t we want to keep the government out of our bedrooms?

It is particularly odd that the Court would (implicitly) say that sexual attraction is foundational to the definition of marriage, but the potential for procreation (in which there is a significant public interest) is not. The public purpose of marriage historically has been grounded not in the encouragement or affirmation of sexual relationships, but in the need to stabilize them because of the recognition that wanton sexual expression leads to social decay: massive out-of-wedlock births and parentless children, children growingup reckless and uneducated, etc.  Seeking to avoid these and other problems, marriage for millennia has been a public institution, one animated by its implications for society as a whole.

Yet while same-sex marriage claims to imitate natural marriage in stabilizing relationships, the public purpose of such stabilization – prevention of unrestricted, chaotic, and socially disruptive procreation – becomes irrelevant given the inability of same-sex partners mutually to create children. 

I have written about the public purposes of marriage in relation to sex and procreation elsewhere.

In any case, the first premise Justice Kennedy requires in order to claim that self-identified gays and lesbians have been denied the “fundamental right to marry” is the premise that marriage is about sexual attraction.

Is Homosexuality Immutable?

A second premise is also necessary, however. To conclude that a one-man, one-woman marriage definition denies to self-identified gays and lesbians the “fundamental right to marry,” one must not only assume that sexual attraction is foundational to marriage, but must also assume that such attractions can never change—that they are “immutable.”

Justice Kennedy included the “immutability” claim because it is necessary to give his “fundamental rights” argument any coherence at all. Only if (a) sexual attraction is fundamental to marriage and (b) sexual orientation is “immutable” can it be argued that a law defining marriage as the union of one man and one woman is the same as a law saying that there is an entire class of persons (self-identified gays and lesbians) who are denied the fundamental right to marry because it is impossible for them ever to marry.

In support of this claim (that a homosexual orientation is “immutable”), Justice Kennedy cites an amicus curiae (“friend of the court”) brief filed in the case by the American Psychological Association (APA—not to be confused with the other APA, the American Psychiatric Association).

This brief can be found online on the Supreme Court’s website here.  Yet surprisingly, a word search shows that the word “immutable” appears nowhere in the brief.

The closest to which it comes is a statement, in a topic heading, that sexual orientation “Is Highly Resistant to Change.” This is not the same as “immutable.” The word “immutable” suggests an absolute, 100 percent, without-exception type of statement. Race is an immutable characteristic (and the mockery of Rachel Dolezal, a white woman who claims to be black, simply demonstrates the widespread understanding of that fact). One’s biological sex is “immutable” (the “gender transition” of transgendered Americans notwithstanding). “Highly resistant to change” is a strong statement, but in an entirely different category from truly immutable characteristics such as race and sex. It is definitely not an absolute one.

However, when one reads the entire text of the section of the APA brief that Kennedy cited, the actual evidence offered hardly even supports the “highly resistant to change” characterization. For example, the section begins this way:

Sexual orientation refers to an enduring disposition to experience sexual, affectional, or romantic attractions to men, women, or both. It also encompasses an individual’s sense of personal and social identity based on those attractions, behaviors expressing them, and membership in a community of others who share them. Although sexual orientation ranges along a continuum from exclusively heterosexual to exclusively homosexual, it is usually discussed in terms of three categories: heterosexual (having sexual and romantic attraction primarily or exclusively to members of the other sex), homosexual (having sexual and romantic attraction primarily or exclusively to members of one’s own sex), and bisexual (having a significant degree of sexual and romantic attraction to both sexes).

This description bears a striking resemblance to the key point I made in my 2011 pamphlet, Debating Homosexuality—namely that “sexual orientation” is not one thing, but is an umbrella term for several different things. They include a person’s sexual attractions, sexual behavior, and sexual self-identification. The APA cites all three of these (“attractions,” “behaviors,” and “identity”), while even adding a fourth category (“membership in a community”).

This brings me to a “gotcha” question often asked by people in the media: “Do you think people are born gay, or do they choose to be gay?” The best answer is, “Neither,” because the question presents a false dichotomy.

No one knowledgeable about “sexual orientation” issues would claim that most people with same-sex sexual attractions “choose” to experience those attractions. However, the meaning of “sexual orientation” is not limited to sexual attractions, as even the APA acknowledges. It also “encompasses” behaviors, identity, and “membership in a community”—all of which are primarily a matter of personal choice, and therefore by definition not “immutable.”

In addition to defining “sexual orientation” in terms of multiple factors, all but one of which involve significant freedom of choice, the APA brief uses other language one usually would not expect in a description of an “immutable” characteristic. It says that sexual orientation “ranges along a continuum from exclusively heterosexual to exclusively homosexual,” and that each of the two major poles of sexual orientation, heterosexual and homosexual, can be defined in terms of “attraction primarily or exclusively” (emphasis added) to either opposite or the same sex. The use of the word “primarily,” and not just “exclusively,” is a concession that some people may identify as “homosexual” even though they have some opposite-sex attractions. Again, this is hardly as absolute as the word “immutable” would suggest.

Although I would never argue that sexual attractions are primarily “chosen,” the APA actually concedes that at least some homosexuals acknowledge that “choice” played a role in their sexual orientation. Here is what the APA wrote about that topic in the amicus brief cited by Justice Kennedy:

Most gay men and lesbians do not experience their sexual orientation as a voluntary choice. In a [national survey], only 5% of gay men and 16% of lesbians reported feeling they had “a fair amount” or “a great deal” of choice about their sexual orientation. Fully 88% of gay men and 68% of lesbians reported that they had “no choice at all.”

But if sexual orientation is inborn and “immutable,” as Justice Kennedy asserts, wouldn’t you expect 100% to say that they had “no choice at all?” The fact that, among self-identified lesbians, nearly one in three said they had at least some choice, and nearly one in six said they had “a fair amount” or “a great deal” of choice, would seem to seriously undermine the notion that homosexuals are always “born gay and can’t change.”

The APA’s brief also cites another publication the APA issued in 2009 which addressed the issue of “sexual orientation change efforts.” Here is how the brief characterizes the conclusions of the 2009 publication:

Although some groups and individuals have offered clinical interventions that purport to change sexual orientation from homosexual to heterosexual— sometimes called “conversion” therapies—these interventions have not been shown to be effective or safe. A review of the scientific literature by an APA task force concluded that sexual orientation change efforts are unlikely to succeed and can be harmful.

One thing to know about the 2009 publication is that—like the 2015 amicus brief—nowhere in either texts is the word “immutable” used to describe sexual orientation. Note also the less than absolute language of the conclusion—saying that such efforts “are unlikely to succeed” is not at all the same as saying they “cannot” succeed; whereas, saying they “can be harmful” is not at all the same as saying they are always harmful. Here is a key quote from the 2009 Task Force Report:

Although the recent studies do not provide valid causal evidence of the efficacy of SOCE or of its harm, some recent studies document that there are people who perceive that they have been harmed through SOCE. [emphasis added]

Even the APA is conceding here that claims of “harm” from SOCE are supported by no more “valid causal evidence” than claims of its efficacy. The statement that some people “perceive” they have been harmed really amounts to a back-handed concession that the evidence of “harm” is primarily anecdotal, not scientific.

More and better research is clearly needed. However, there is actually an abundance of evidence, both scientific and anecdotal, that sexual orientation can be changed; the addition of the words “valid causal” represent an effort to discount that fact by raising the bar as to what is accepted as evidence.

In fact, Nicholas A. Cummings, a former president of the American Psychological Association, wrote in USA Today in 2013, “Of the patients I oversaw who sought to change their orientation, hundreds were successful,” adding, “…contending that all same-sex attraction is immutable is a distortion of reality.”

Ironically, when the Supreme Court handed down its ruling on June 26th, I was at the national conference of the Restored Hope Network—a network of Christian ministries that help individuals to overcome unwanted same-sex attractions—along with dozens of ex-gays whose existence Justice Kennedy seemed to deny. Many people who once had a homosexual sexual orientation—as measured by attractions, behaviors, and identity—have experienced transformation and are already legally married to someone of the opposite sex. Some of these, like Garry and Melissa Ingraham, are now active in helping others change. Others, like former lesbian Chirlane McCray (who is now married to Bill de Blasio, mayor of New York City), simply moved beyond “the assumptions I had about the form and package my love would come in.”

Change of sexual orientation can happen in either direction. The Family Research Council’s own amicus brief to the Supreme Court was unique in pointing out the “remarkable (but heretofore unnoticed) fact that dozens of the plaintiffs in the same-sex marriage cases that have been brought over the last twenty-four years previously had been married to a person of the opposite sex.” This is proof on its face that either: a) people with a homosexual orientation are capable of marriage to the opposite sex (if we assume that these plaintiffs were homosexual all along); or b) people’s sexual orientation can change during the life course; or both. However, if either assumption (whether a or b) is true, it demolishes the premise of Justice Kennedy’s opinion.

None of this is to suggest that changing one’s sexual orientation is easy. Most people will never try, and of those who do try, some will fail. But some also succeed.  This, and the fact that some people move from homosexual relationships to heterosexual ones—or vice versa—serve as proof that sexual orientation is not “immutable.”

Justice Kennedy’s claim that a homosexual orientation is “immutable” was his bridge from identifying the desire of some people to marry someone of the same sex to identifying a “fundamental right” to do so. The claim, however, is unsubstantiated—making the bridge a shaky one indeed.

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

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