A supporter for same-sex marriage stands outside the US Supreme Court in Washington April 28. (CNS photo/Tyler Orsburn)
not abandon the ship in a storm because you cannot control the winds…. What you
cannot turn to good, you must at least make as little bad as you can.” St.
Thomas More, Utopia
Obergefell v. Hodges, the Supreme Court didn’t just confect a
new right to same-sex civil marriage. In some ways, it inaugurated a new phase
in American law, culture, and religion.
some things don’t change. In every age there are crises, calls to do what we
can about them, grace to do it faithfully, and mystery as to the nature, and
the hour, of our success. So we can
keep serenity and cheer even as we take stock. Doing so fulfills Christ’s
command to his disciples (John 6:33); it also prevents needless alienation from
those celebrating Obergefell. Most of them don’t despise tradition, or
the stabilizing norms of marriage. They just want everyone to be able to sate
what Dorothy Day called “the long loneliness” we’ve all known. They think only
(publicly recognized) romance does thatsurely one of the Sexual Revolution’s
crueler lies. We who refuse to collapse all companionship into marriageto
treat non-romantic love as simply lesscan honor the self-sacrificial
love and communion they value, but with more expansive vision: in all its
splendid variety. We can agree on the human need for love, without consigning
the unmarried to an inhuman loneliness. This will bring us closer to a
sound culture of friendship and marriage, and clear obstacles to the
faith that illumines both by the light of a still deeper bond of love. But
before all that, let's look soberly at the new landscape.
Obergefell was a striking interruption
of a promising legal trend. For two generations, conservative lawmakers, attorneys
general, and legal groups like the Federalist Society had fought against early-
and mid-20th-century judges’ imposition of social policy without legal warrant.
campaign seemed to make real progress. For years now, even the most eagerly progressive
judges have felt obliged to contend with the legal texts at hand and show how
those lawsnot their own, free-floating sense of justicesupported their
that campaign, Obergefell is the
biggest setback in a generation, revealing (in Justice Alito’s words) that
“decades of attempts to restrain this Court’s abuse of its authority have
not that the majority opinion offered bad
interpretations of the Constitution’s guarantees; it hardly interpreted them at
all. Huge swathes of it read less like a legal argument than the willful
paradoxes and obscure profundities you might hear at a winetasting. (Instead of
an analysis of the Due Process and Equal Protection Clauses, for example, hear
in this passage a connoisseur’s discussion of the hints of citrus and pear in a
sauvignon blanc: “In any particular case sip, one Clause note
may be thought to capture the essence of the right wine in a more accurate and comprehensive way, even as the two Clauses
notes may converge in the identification
and definition of the right wine.”)
some supporters of Obergefell’s result find its reasoning too
reminiscent of that of Roe v. Wade,
now an embarrassment to pro-choice and pro-life legal observers alike. But few
have pointed out just how wide the door flung open for activist judges is in Obergefell.
a quick primer. The Constitution requires government to give people “due
process of law” before denying them life, liberty, or property. On its face,
this rule just requires fair procedures for
government actions that curb those interests. But the Court has long read it to
prevent governments from abridging some rights
at all. Which ones get absolute
protection? The Constitution doesn’t say, of course, so the risk is high that
courts will make it up as they go along. To prevent that, our law has required
liberties protected under this clause to be (1) “deeply rooted” in our nation’s
traditions and (2) “careful[ly]” defined.
right to have the state recognize your Number One companionate bond is neither
of these. So Kennedy just declared that (1) and (2) needn’t always be limits at
all. “That approach may have been appropriate for the asserted right” in an
earlier case, he wrote, but not here. In plain terms, judges can play fast and
loose with the liberties given absolute protection under Due Process just
when…they sense that they must. This clears the path for cartwheels of judicial
policy-making, for years to come. Our self-government has taken a blow.
But laws are
only a means. Paraphrasing C.S. Lewis, we can concede that all the world’s
court cases and statutes add up to nothing in themselves. Marriage laws are for
naught unless they facilitate real goods: a child toddling toward his attentive
father, who’s on the scene; a middle-schooler absorbed by novels, not grief
over her parents’ divorce; two neighbors, emotionally self-confident and free, bickering
their way to companionship for life; a young man unscarred by authority,
unafraid of commitment, kneeling in prayer, or in a proposal of marriage.
scenes prevail where good mores (encouraged by good laws) prevail. They are
undermined by the spread of bad ones. Here, too, Obergefell will have its impact.
Because now the most prestigious secular organ
of American societythe Court that helped make Martin Luther King’s dream a
realitystands for the propositions that deep emotional union makes a marriage,
and that mothers and fathers are perfectly replaceable; indeed, that it
“demeans” and “stigmatizes” people to think otherwise.
Will a boy
and girl who grow up absorbing these ideas feel more or less need to marry
before having children? Once married, will they be more or less likely to stay
together even when desire fades or wanders, so that their kids can know their
father’s and mother’s love?
highest courtour secular Magisteriumhas defined marriage as the place to allay “the universal fear”
of “loneliness.” As more people live by that idea, what will become of those who
never marry? Will they be more or less likely to feel, in Kennedy’s words,
“condemned to loneliness”? More or less likely to find, even beyond romantic
bonds, the lovethe “intimacy” and “spirituality”that Kennedy makes the definition of marriage?
revisionist view that the majority (and, let us admit, millions of Americans
for years) has taken for granteda review which equates true love with marriage alone, and both with the fulfillment of
emotional needsis actually a blueprint for more fragmentation, more broken
hearts and homes. Obergefell gives that
view deeper cultural currency.
Finally, our freedom to act
on our moral or religious views in public lifeindeed, our ability to hand on the
faith to our childrenis now more vulnerable.
Legally, by deeming parts
of our creed bigoted, Obergefell paves
the way for the IRS to cripple thousands of religious institutions by revoking their
tax-exempt status. It makes it easier for
lawmakers and courts to use anti-discrimination
laws and public education to drive us to the margins by depriving us of jobs (and
other opportunities) of any public significance. (Just think of how much social
opportunity we allow, say, segregationists.)
And it provides cultural
permission and political will for the most motivated advocates to meet their deepest
goal: not just certain personal freedoms, or inheritance rights, or the legal
status of marriage, but a social transformation. Some, that is, want all
citizens and every sector of culture to embrace their vision of sex and
marriage. And a portion of them will be tempted to use the law to hurry that
process along, especially against the most resilient obstacle: the Church. Thus,
Notre Dame Law Prof. Gerard Bradley writes, “we should expect [Obergefell] to inaugurate the greatest
crisis of religious liberty in American history.”
Finally, as our children
are taught about Obergefell in the
same breath as Brown v. Board of
Education and Loving v. Virginia,
they will come to see their religion’s marital ethic as bigoted. It may soon be
easier for a camel to pass through the eye of a needle than for our children to
finish school believing the truth about sex and marriageor to die in a Church
that holds fast to it. How to pass on the faith intact may indeed be the Catholic question after Obergefell.
For that reason alone, we
can’t acquiesce. But there is also the fact that Christians can’t pick and choose
what to defend. There is the fact that the Great Commission is not selective or
subject to judicial veto. And beyond theological witness, there is
our duty to the least of our brothers and sisters, Christian or
otherwiseto vindicate children’s right to wake up each morning under the same
roof as the mother and father whose love gave them life.
No, the truth about sex and
marriage isn’t our most important belief. Yes, our broadest mission is to help bring
people into God’s household, His endless feast of life and love for the
marriage of Christ and the blessed. But even that mission is served
by a sound ethicand the freedom for public witness, and the culture on which
grace can build, that just laws promote.
But if we can’t forfeit,
and Obergefell blocks social victory anytime
soon, we must avoid alarmism and take a view that is both longer and narrower.
That’s the perspective of preparing for God’s new creation by living out our
personal vocations. Each of us must discern that vocation anew, and pursue it
with vigor. And for many, facing this and other spoils of an ongoing Sexual
Revolution, that will include finding new ways to affirm the goodness of being
embodied as male and female, the nature of conjugal love, and the independent
value of deep spiritual friendship. It might include fierce loyalty and unself-conscious
love for friends or relatives in love with other men or other womenor fidelity
in a flagging marriage and similar hardships.
The basics, though, Obergefell doesn’t change. In every agenot just oursone thing or
another is falling apart, and errors are spread, and the faith is under attack.
In every age, amid the pandemonium, God gives us each a call, some plot of creation
to prepare for His final restoration: kids to rear, friends to keep, projects
to pursue, prayers to offer, tough conversations to have, workplaces to leaven
with diligence and spiritual witness. And in every age, we have no idea how or
when He will gather the fruits into a new creation. Our job is to be faithful
and of good cheer, for even now He has overcome the world (John 16:33).
St. Thomas More, who died partly
for refusing to tell a lie about marriage, tells us not to abandon the ship in
a storm just because we can’t control the winds. That’s easier to do when we
know that our job on deck, however small or seemingly futile, is assigned in
love by Him whom even the wind and the seas obey (Matthew 8:27).