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.
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
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
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."
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."
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:
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
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.
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 declinewhere one can claim that an unborn
baby is not a human person and that man-to-man copulation is equivalent
to marital unionwe 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