Fr. Joseph Fessio, SJ, founder and editor of Ignatius Press, which is based in San Francisco, expressed obvious frustration this morning in commenting about the Supreme Court rulings striking down the Defense of Marriage Act (DOMA) and dismissing Proposition 8.
“They are profoundly wrong and wrong-headed decisions,” he stated in e-mail correspondence this morning. “And it is deeply depressing that in each decision a Catholic justice was the swing vote.”
“There is a twofold problem that underlies both decisions,” he wrote. “1) That issues of such fundamental significance for society should be decided by a single, unelected person. That’s what happens when there is a 5-4 decision. 2) That the judges of the Supreme Court who ought to be exemplary for their wisdom as well as their technical knowledge of the law can be completely blind to the obvious: this is not an issue of equality at all. Same sex unions are not in any way equivalent to marital unions.”
Fr. Fessio specifically named Justice Anthony Kennedy, who wrote for the majority in the Court’s ruling on DOMA (“United States v. Windsor”). “Justice Kennedy wrote, ‘The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity.’ This is only slightly less outrageously self-contradictory than his famous ‘mystery” utterance: ‘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.'”
That statement was written by Justice Kennedy (along with Justices Souter and O’Connor) in his opinion on the 1992 case, “Planned Parenthood v. Casey.”
“If you can define your own concept of meaning,” added Fr. Fessio, “well, I suppose you can play Alice in Wonderland with any concept you want, including marriage. So at least Justice Kennedy is consistent in his self-contradiction, and this decision is simply a consequence of the earlier principle. However, he even goes farther here and apparently can read hearts, since he claims that the ‘purpose’ is to ‘disparage and to injure’. So one man sets himself against the wisdom of all recorded history which recognizes the obvious: a marital union can do what no other union can; further it is not only a benefit to the state, but the state cannot exist without it. Giving it special status and protection does not disparage or injure anyone; it simply recognizes an empirical fact that only the willfully blind can fail to see.”
Justice Kennedy, in the majority opinion on DOMA, flatly stated that “the principal purpose and the necessary effect of this law [DOMA] are to demean those persons who are in a lawful same-sex marriage.” Kennedy also wrote, “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”
Justice Antonin Scalia, in his dissenting opinion, stated, “I am sure these accusations are quite untrue.”
Scalia also strongly criticized Kennedy’s opinion, arguing that it essentially describes as bigots anyone who upholds marriage as an institution consisting of a man and a woman:
But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual.
All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence–indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
Fr. Fessio also criticized the majority opinion written by Chief Justice John Roberts in the Court’s ruling on Proposition 8 (“Hollingsworth v. Perry”). The Chief Justice, he noted, wrote, “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.” By that principle, observed Fr. Fessio, “the Supreme Court should have never made any decisions, since each new decision was a ‘first time’.”
He added, “So we have the sad parody of one Catholic judge being so liberal that even the meaning of meaning isn’t fixed. And another Catholic judge so conservative that he can’t recognize the need for an unprecedented decision when there is an unprecedented set of facts.”
“People, myself included, lament the moral decline of America,” reflected Fr. Fessio, “Without this stunning intellectual decline—where one can claim that an unborn baby is not a human person and that man-to-man copulation is equivalent to marital union—we could not have sunk so low. With this decision we are about to sink even lower. God help us.” He said that he thinks it is clear that the rulings are “going to make it far more difficult for those who defend marriage.”
Asked how the rulings will affect the Catholic Church in the United States, Fr. Fessio remarked that they “will call forth saints and scholars who will ‘shine like the stars in the midst of a wicked and perverse generation’. They will also be humiliated and very likely, in time, persecuted. Welcome to the Brave New World.”