On Court-Imposed “Liberty”

The Obergefell decision postulates a sterile kind of love—an imitation love that partakes neither of marital love nor of true friendship based on virtue.

“Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.” – Justice Kennedy, Obergefell, et al. v. Hodges, II, A

I.

Ever since I wrote Human Dignity & Human Numbers in 1971, I have been expecting a decision or legislation approving single-sex marriage to finally appear. It did. What we received was a “court decision” that was really a piece of legislation issued by a judiciary body not constitutionally authorized to impose laws.

In a way, I am glad that it happened this way. In the end, we were handed down the worst possible justification for what ought never to have been promulgated. It leaves little room for illusion. That it was accompanied by the president symbolically bathing the White House in colors of the Rainbow Coalition, not the Confederate Battle Flag or the Old Glory, is utterly unsurprising. The president has been, by his own arbitrary decrees, pushing the sexual revolution through embassies around the world as a condition of receiving aid and supposed democracy. We have here a classical combination of judicial and executive tyranny that the founders of our country designed its Constitution to prevent. It didn’t. 

What are we to make of this decision? I will not repeat here the withering responses of Justices Roberts, Scalia, Thomas, and Alito. Such a fatefully terrible, intellectually shoddy decision was almost worth it just to draw forth such trenchant dissents. The only way the five justices who imposed this awful burden on the nation can hold their heads up is simply not to read what their colleagues say about their thinking. Of course, several justices go into the “hubris” factor, so much studied in our classical literature, of men (and here women) so blinded by their own mental vision of the future that  they cannot even imagine the devastation their ideas inflict on others—including the ones who think that they won.

But the visionary justices do not lack for praise and adulation, as the Rainbow Flag at the White House attests. Aristotle said that the real question is, who praises us? who blames us? and for what reason? Those who think this decision is a victory for mankind, even for those who can now, as they think, practice their ways before us all as virtues, are more to be pitied than chastised.

II.

Let me approach the question from an odd angle. On the campus of a Catholic college in San Antonio, a sculpture depicts a young woman sitting on a bench with a book, a young man with his foot on the bench leaning over to chat with her. Seems harmless enough, right? But evidently, local feminist groups objected to such pastoral depictions as biased against them. The sculpture hinted that a young man and a young woman might show interest in one another, presumably because one was male and the other female. Evidently, the protesters felt left out of something, they knew not what.

My point here is not the silliness or unfairness of this complaint. Rather, I mentioned this scene to a European friend. She told me from Hungary that, because of the ISIS bombings in France, Tunis, and Kuwait on the same day, not much notice was taken of the US Court decision. Most of this “court legislation,” however, was already in effect in Europe; America seems to be a follower here, not a leader. Then she added: “But feminism is itself obsolete.” The immediate future horizon is not filled with happy gay couples finally locked together in indissoluble “marriages,” as depicted by Justice Kennedy. Even if the college statue depicted two young men talking, or two young women, that would imply that such a thing as a man and a women existed, whatever they do to one another. No, these roles are socially determined. We can be whatever we choose to be. No wonder the Holy Father keeps attacking “gender” ideologies.

Justice Roberts mentioned that this decision, in principle, justifies not just “marriage” between two people of the same sex. It also validates, on the same grounds, “marriage” between many people of any and no sex. Once we begin the “logic” of decline, we cannot stop it without first acknowledging that it is a decline. No longer can we point to any principled difference between a liaison of two same-sex individuals and a committee of five or six people of the same or different “sexes,” if I might use that now quaint term. If they all profess the same intimate “love” for one another that Justice Kennedy speaks so highly of as what marriage is about, they are “married” with all its privileges and “benefits.”

The Muslims, the Mormons, and the Pagans are finally proved to be right about polygamy, as are the polyandry advocates about their ways. Nor is there any reason why the same committee cannot adopt other peoples’ children in order to fulfill their mutual desires and needs. We assume here that, as in the case of gay marriages, no real coitus between a man and a women takes place among the committee. The case of two or three lesbian women all artificially (or randomly) impregnating themselves from sperm of the same or different male donors is already possible and indeed not uncommon.

But in the new world opened up, of which this decision is merely a beginning, we will not be allowed to identify what a man or woman is. Our choice is much wider than this either/or. Already on some marriage licenses and legal documents, married couples are identified as Partner 1 and Partner 2. There is no reason why we cannot have Partner 3 and Partner 4 added to the mix. Middlebury College, with others following, became “famous” for its “all gender” housing in which some 15 different kinds of gender choices were available to mix or un-mix. As Justice Kennedy said elsewhere, we are all free to choose our own “concept” of the universe. Evidently, quite a few are following his advice.

So I suppose my first comment on this decision is that it is not the end of a slow process so much as the beginning of an already begun “devolution” that will eventually uncouple any relation of sex to the begetting of children.[1] We will have many children in the world who have no idea where they came from (though with DNA apparently this origin can be found with certainty). Those designated “legally” responsible for them can be one, two, three, four, five, some state agency, or whatever fits the desire to express personal lasting love for each other, according to the Court’s sentimental norms as to what a “marriage” is.

Beyond this, but in the same line, would be—not unlike China—the licensing to have children at all. Since sex is now independent of children, regulation of number and quality of children can go on without interfering with anyone’s sexual activities. The state will decide who fits certain genetic criteria or racial mix. “Accidents” can be handled by abortion. If total gestation outside the womb is developed, then the connection between state, population, and marriage can be severed altogether. Such a world, of course, was envisioned in Plato, Huxley, and Orwell. It is, in principle, not at all outside the reach of this new definition of “liberty” that Justice Kennedy miraculously invents in the Constitution with the aid the Fourteenth Amendment. When he or his successor imposes the total logical consequences on us, it will be for the “good” of the country, the environment, and the race, as well as allowing love to be totally separated from begetting. This sterile kind of love is what this present decision really postulates, an imitation love that partakes neither of marital love nor of true friendship based on virtue.

III.

Justice Kennedy insists that his approach is an affirmation of the dignity of marriage. Gay couples desire “marriage” so much that they cannot live happily without it. Therefore, it must be granted to them. But they do not mean “marriage” in its proper sense. The majority Court does not want to deprive anyone of “marriage.” It is a “right.” A “right” is something that, if you want it, on those grounds alone, the government must provide. It must assist you in obtaining it, a provision Justice Thomas found most amusing.

Though Justice Kennedy mentions children and even begetting, he never really begins with the point that marriage is based first on the way children come into the world. He cites Cicero and mentions that the older view understood this relation, as did all of mankind before his insights came to prevail in his own mind. Another entertaining element in reading the document on this point is the amazing ease with which the justice sloughs off the combined opinions and judgments of all mankind before he came along with his new discoveries about liberty. But the barren “marriage” that the justice finally bequeaths to the gay population is not, and cannot be, what most of mankind understand and experience as marriage. The gay community has won an equivocation. It is now asked to be content with it, with a mockery of the real thing.

In a certain sense, Kennedy repeats here the controversy that arose in the late 1960s after Humanae Vitae about the primary and secondary purposes in marriage. Already then, concern existed over elevating marital love as if it were wholly independent of begetting. Not a few at the time saw the potential connection to gay marriage if these two ends were not kept together. We see now the concern was wholly justified. The sole purpose of “marriage,” in Kennedy’s view, is now seen to be the aspect of love and living together. There is no need of children as intrinsic to what marriage is. In gay relations, no children are possible.

Since homosexual and lesbian relations cannot produce children, the relation of marital love to children is eliminated from the definition. Thus, we must say that the use of the term “marriage” to apply univocally to single-sex and opposite-sex marriages cannot be sustained. One is a marriage; the other is not, no matter what we call it, even if we pass a law to say we “must” call it a “marriage.” At bottom the two notions are apples and oranges. The two-tiered difference between those marriages that have children and those that cannot have children simply remains. The stigma will always be there by nature. Any child can and will see the difference.

Basically, we cannot begin talking of “what marriage is” except by talking first of children. The argument does not begin from the parents and look forward to children, as the time sequence does. It begins with the conceived, existing child and works its way back to what is required: that that child’s dignity be respected and his (not the parents’) potential be brought forth, though in bringing forth the child the parents’ love and nature is manifested further. Here is the reason why single-sex “marriage” is not, and cannot be, whatever the law says, a real marriage. No one has a “right” to have a child. What they can do is responsibly choose to enter a relation in which a child is capable of being begotten. Any child needs and requires both a father and a mother, the ones that begot him and identifies him in being. Failures and accidents that have children with one parent are abnormal, however frequent. Grandmothers and grandfathers, aunts and uncles bring up many a child, but as a substitute for what ought to be, not as a norm.

Justice Kennedy remarks on the children of gay and lesbian couples. He claims that these couples can do just as well as proper parents. When Catholic adoption agencies were required to give children to gay couples, they got out of the business. Why? It is simply unjust to the child to deprive it of a father and a mother. The main opposition to gay marriage is not based on anything less than this injustice to the child. A relationship that, with regard to children, is intrinsically “in vain” cannot substitute for parenthood.

We should not be overly surprised, I suppose, if a society that aborts so many existing children would also consign others to an environment that deprives them of their due. Many gay men and women, to be sure, see this fact. They do not adopt. The basic issue is not about them and how they live. It is about the good of the child, and that they are not properly prepared as a duo to care for the child’s good. Other people’s children are not, and cannot be, looked upon as instruments to fulfill the “love” gay couples have to each other. Their “love” is intrinsically sterile and is intended to be in nature. Nor does this foundation have anything to do with prejudice against gays. It is only an insistence that it is the child that counts. It has need of its own parents, not some stranger’s fulfillment. And if there must be adoption, it ought to be into a husband-and-wife situation.

IV.

What this understanding of marriage as related to children means is that this court decision betrays a confusion about the nature of friendship. It is essentially a tractate de amicitia, without a related tractate de matrimonio or de virtute. Let me begin with Aristotle. Classical Greek culture, evidently, had a goodly number of homosexual relations, particularly man-adolescent boy types. They seem to come up in Plato all the time. But neither Plato nor Aristotle approved of these relations if they were actively homosexual. They did, however, exalt friendship in an elevated way that is still our model in many respects. They sought, in other words, to make friendship, both between man and wife, man and man, woman and woman, man and woman, to be proper and based on a right relationship.

Aristotle said that a husband and wife could participate in all the forms of friendship—those of utility, of pleasure, and of the highest sort of intellectual and spiritual communication. But the basis and context of the husband-and-wife friendship relation was home and children. This was the one form of friendship that required the two to live together for a lifetime, both for the children and for one another. Men and women could have friendships with other men or women. But these were not marital relationships or imitation ones. Friendships needed time. Generally one could have but a few good friendships in life. However, all friendships needed to be based on virtue and fidelity. Homosexual relations were excluded, but friendship was not. Indeed, it was made impossible without virtue, especially the virtue of temperance.

Though Kennedy does not mention it, one of the primary arguments for homosexual marriage was the often amazing promiscuity displayed in the lives of many, if not most, gay men. Some thought that a legal bond (it did not have to be called “marriage”) would mitigate this scourge. Others recognized that the promiscuity was part of gay life itself, so that even in gay marriages we hear of clauses to allow other attachments. This practice would not be unrelated to the concubines we see in Scripture and in many cultures alongside regular marriages. However, this sort of activity was inimical to true friendship between unmarried males or females as well as of married ones.

Friendship was seen as a perfection whereby we will the good of our friend and this love is returned. But unless it is a marital situation, the friendship is not sexual in any proper sense. This is really the aspect of gay marriage that Kennedy is praising. Indeed, I would suggest that the whole gay culture, insofar as it is not raw exploitation, is really a misunderstanding of the conditions of noble friendship and the basis in which it can flourish.

V.

What about the Church in relation to this decision? First, in spite of the token assurance of religious freedom, it will be necessary to disassociate marriage from the state laws. Many people today simply live together. A civil marriage license requires no ceremony. Evidently, in the 19th century, the Church was opposed to associating marriage with a civil contract. Many countries today, usually as a result of legacies of the French Revolution or various aspects of socialism or nationalism, separate civil from ecclesiastical weddings. A couple get a license, then are married in the Church. The latter counts.

I think the Church, as quickly as possible, should no longer allow its clergy to perform marriages as officials of the state. Couples should have both civil and ecclesiastical weddings as happens in Mexico, Italy, and many countries. This separation would prevent any danger of a clergyman being forced to perform a gay wedding because he is an official of the state or of the Church being accused of discrimination because it refuses what is legal.

The dissent of Justice Scalia, in a way, surprised me in this context. He simply said that the issue of whether a state defined marriage one way or another did not much concern him. He was mostly concerned, as were the other justices, with the violation of the Constitution and the bypassing of the democratic process that this decision manifested.

Most of the dissenting judges seemed to think that, had the court reverted the issues to the states, the gay cause would eventually win anyhow in many areas, but in a more “democratic” fashion. Clearly, if I am in a state where the sharia is the civil law, my definition of marriage will differ from where English common law or French Napoleonic law forms the basis of understanding. The state’s concern with marriage has to do with its effects and consequences—with property, education and health of children, or domestic abuse. When it gets into things like promoting or facilitating abortion, it crosses a line over which only its power, not its reason, prevails.

Unmarried men and women, either in twos or in groups, have lived together in civil society in much of history. They were often living as friends, but not with active homosexual relations. No one thought much about it. No law was needed to regulate it. If they needed to provide for their economic relations, they could consult a lawyer or make a private agreement. There was no limit on their friendship, and no need to pretend it was an imitation marriage. It could fulfill all the requirements of friendship that Aristotle set down without the state having much to do with it, even though it was this sort of friendship that Aristotle said polities most needed to stay together—virtuous, long-lasting, honorable friendships that did not involve physical relations that had no natural issue.

Plenty of men and women have lived their lives in honorable celibacy with friends and family. The problem with the decision’s understanding of “marriage” is that it has elevated the friendship aspect of marriage and eliminated the begetting side. The result praises a relationship that can only corrupt friendship and claim unfair “rights” over someone else’s children for whom they cannot really provide what children most need, a father and a mother. What is said here, again, is not to demean the gay person, but to suggest that what the gay person is really looking for cannot be achieved by the method of “single-sex” marriage, which he has persuaded himself to be the only solution to the other problems in which his lifestyle involves him.

VI.

One last point might be made in connection to the upcoming synod and the question of divorce. I have been struck by the number of times that Pope Francis, in talking of divorce, has mentioned that many couples do not enter into marriage understanding what it is, its relation to children or its fidelity. He hints that, however it is worked out, to declare such relationships invalid would be appropriate. If a couple enters a marriage intending not to have children, or to abort them or to prevent them, then that marriage is not a proper marriage from the beginning.

In other words, if we intend to make our marital relationships sterile from the beginning, we are not unlike the active homosexual relationship that is sterile by nature. Both cases partake of the same mentality. This analysis probably means that we have few proper marriages in the country today. So the Court decision is not unrelated to the whole issue of what a marriage is and its relation to begetting. Justice Kennedy’s effort to laud the friendship side of marriage at the expense of its procreational side will ring true to those who do not allow marriage to be what it is.

In conclusion, in general, while this decision has been seen in the light of religious freedom, I think, with Robert Reilly in Making Gay Okay, and with what Hadley Arkes has often said, that we deal here with what is basically an issue of reason. If it says in the Bible that something is wrong with active homosexual relations, it is not inventing something but referring to something that we can see in practice. In some sense, the greatest disservice that reason or religion could do would be to tell the homosexual person that no problem can be found with what he is doing, even if he has a “right” to do it.

Many people engaged in these activities sooner or later come at least to suspect a problem exists, no matter how difficult it is to define or to face it. Such reminder needs to be given prudently, quietly, and calmly. We have often said that we do not oppose the homosexual person, but we say his acts are wrong. We should not delude ourselves, however, into thinking that the movement to legitimize single-sex “marriage” was one big effort to make such “marriages” celibate. It was designed to make them legitimate and to deny that anything was unnatural about them. Criticism of this now legal view will be henceforth met with the full force of culture and law, as several justices and numerous critics have warned. This vindictive mode should at least give us a suspicion that, in the end, everyone, especially those demanding absolute conformity to the arbitrary decision, knows in reason that something is really wrong in this whole issue.


[1] See James V. Schall, “The Logic of Morals,” The Catholic Thing, June 9, 2015; “On Multiple Parents,” Catholic World Report, November 11, 2013; “On What Knowledge Pertains To,” University Bookman, Winter, 2011.

About James V. Schall, S.J. 156 Articles
James V. Schall, S.J. taught political philosophy at Georgetown University for many years until recently retiring. He is the author of numerous books and countless essays on philosophy, theology, education, morality, and other topics. His most recent book is Reasonable Pleasures: The Strange Coherences of Catholicism (Ignatius Press). Visit his site, "Another Sort of Learning", for more about his writings and work.