Defenders of traditional marriage may not believe it, but
the Supreme Court's apparent intention to decide two important same-sex
marriage cases by midyear may be a stroke of good fortune for their side.
This timing means the Supreme Court's first head-on tangle
with this issue almost certainly will come before President Obama gets an
opportunity to nominate another justice for the court and thereby probably tip
its balance in favor of gay marriage.
True, it would be foolish to predict what the court as
presently constituted will do with the two cases now before it--one of them
focused on the federal Defense of Marriage Act, the other on California's
Proposition 8 barring same-sex marriage in that state. As so often before,
Justice Anthony Kennedy appears to be the swing vote, and how Justice Kennedy
will swing on DOMA and Proposition 8 is anybody's guess.
Still, it's at least a possibility that the court will opt
for a local option solution, leaving it to states to decide this question for
themselves. Even Justice Ruth Bader Ginsburg, the senior liberal among the justices,
has said she thinks the Supreme Court erred back in 1973 in abruptly imposing
abortion on the entire nation instead of allowing a consensus to jell. Ginsburg
and others might well say the same thing of gay marriage today.
The court will hear oral arguments in the two cases in just
a few weeks. Its decision, as noted, is expected around the time its term ends
in late June. Legal and constitutional considerations will naturally
predominate in its deliberations. But important as these are, even larger
issues are at stake.
Just how large was suggested by Pope Benedict XVI in his
annual pre-Christmas address to the Roman Curia. The Pope obviously wasn't
thinking only about the U.S.
(same-sex marriage is a red-hot issue in France just now), but what he
said does apply here as much as in France or anywhere else. The central
question in this dispute, he insisted, is whether the fundamental nature of
gender, personhood, and marriage is forever fixed or forever in flux.
In making his argument, Benedict turned to remarks by the
Chief Rabbi of France, Gilles Bernheim, an opponent of gay marriage. Rabbi
Bernheim quoted an aphorism by Simone de Beauvoir (1908-1986), the French
proto-feminist who was mistress of existentialist philosopher Jean-Paul Sartre:
"One is not born a woman, one becomes so" (On ne nait pas femme,
on le devient).
As a feminist battle cry opposing social conventions of her
day, this makes sense of a sort. But as a statement of timeless fact, it's the
deconstructing of gender and gender-based relationships. Here, as Pope Benedict
observed, is the foundation for "a new philosophy of sexuality."
Its central premise is that sexual identity is not "a
given element of nature" but a role people decide for themselves.
Formerly, the role was imposed by society, but today, de Beauvoir would have
it, individuals do it on their own, and the words of Genesis, "male and
female he created them," are irrelevant. "From now on," Pope Benedict said, "there is
only the abstract human being, who chooses for himself what his nature is to
But if gender is something individuals choose for
themselves, variations on the theme of marriage and family must include
whatever preferences and whims suit particular individuals, with same-sex
unions one. In an earlier, more clear-thinking time and place, this was what
people called playing God. Does the Supreme Court really wish to join that