In the wake of this morning’s Supreme Court decisions on the Defense of Marriage Act and California’s Proposition 8, reactions and responses have, of course, flooded websites, blogs, and social media sites. Below is a small sampling of those worth your time and attention. There will only be more to come as the national discussion on these issues continues—stay tuned!
First, the Pew Forum on Religion and Public Life has a brief overview of the rulings themselves.
The USCCB response: “A tragic day for marriage and our nation”
As one might expect, President Obama responded favorably to the rulings; his statement included a reference to religious freedom:
On an issue as sensitive as this, knowing that Americans hold a wide range of views based on deeply held beliefs, maintaining our nation’s commitment to religious freedom is also vital. How religious institutions define and consecrate marriage has always been up to those institutions. Nothing about this decision — which applies only to civil marriages — changes that.
A good deal of analysis has focused on Justice Anthony Kennedy’s assertion in majority opinion of the DOMA decision that the federal law has as its purpose “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
Justice Scalia’s dissenting opinion addresses this assertion (see page 55 of the DOMA decision PDF):
But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. 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.
Peter Lawler sees in Kennedy’s ruling an “unhinged moralism” that “might make solid citizens believe that those who disagree with him—including the overwhelming majority of members of our Congress who voted for the DOMA—are hatefully evil, so evil that their opinions deserve no place under our law or our Constitution. Talk about a ‘conversation stopper,’ not to mention a civic-engagement stopper.”
Notre Dame Law professor Richard Garnett on the Kennedy opinion: “Reading Justice Kennedy’s opinion — which strikes me as a mixture of a ‘federalism’ argument and a Romer v. Evans ‘no amimus’ argument — it strikes me that the language and rhetoric will be very helpful to those who are arguing that the Constitution, political morality, and decency require the equal treatment and legal recognition of same-sex marriages. His claim that the opinion is limited in its application to those same-sex marriages that have already been recognized by state law does not strike me as likely to have much impact. If what Justice Kennedy says is correct, then it seems to me that it has to follow, in the next case and in future legislative debates, that those states — and those religious communities — that reject the revisionist approach to marriage are appropriately regarded as backward and bigoted, and not to be respected or accommodated. We’ll see.”
The Court declined to declare same-sex marriage a fundamental right and left the future of marriage policy for individual states to decide. …
Justice Kennedy wrote for a 5-4 majority in U.S. v. Windsor that the federal Defense of Marriage Act is unconstitutional on grounds that it violates the equal protection clause of the fourteenth amendment. The practical effect of the decision is that same-sex marriage will be recognized in all instances of federal law dealing with marriage. Same-sex couples in states that have enacted same-sex marriage laws will now be granted the same federal benefits and regulations as married couples. The decision in no way undermines marriage laws in the thirty-eight states that have defined marriage as one man and one woman. …
In Hollingsworth v. Perry Chief Justice Roberts wrote for the majority in determining that citizens of California lacked standing to sue on behalf of Proposition 8, the initiative defining marriage as one man and one woman in California law. The Ninth Circuit decision was tossed, leaving the original District Court decision. That decision applies to just the two couples named in the suit (same-sex advocates declined to file a class-action suit) leaving the future of marriage policy in California in question. What is clear is that the decision has no bearing on marriage laws in any other state.
While some have seen Kennedy’s DOMA rulings as an application of federalist principals, Ryan T. Anderson, co-author of the book What is Marriage? Man and Woman: A Defense (reviewed for CWR here), sees it as a “serious loss for federalism and democratic self-government”:
The Court ignored the votes of a large bipartisan majority of Members of Congress. It is absurd for the Court to suggest that Congress does not have the power to define the meaning of words in statutes that Congress itself has enacted. Just as the states have constitutional authority to make state policy about marriage, so too Congress has constitutional authority to pass a federal statute defining a term for federal programs created by federal law.
DOMA imposes no uniform definition of marriage upon the individual states, and the states should not be able to impose varying definitions of marriage upon the federal government.
Moving away from strictly legal analysis of today’s rulings, over at Christianity Today Russell Moore maintains that the Supreme Court has given Christians a gift: “the opportunity to do what Jesus called us to do with our marriages in the first place: to serve as a light in a dark place.”
Permanent, stable marriages with families with both a mother and a father may well make us seem freakish in 21st-century culture. But is there anything more “freakish” than a crucified cosmic ruler? Is there anything more “freakish” than a gospel that can forgive rebels like us and make us sons and daughters? Let’s embrace the freakishness, and crucify our illusions of a moral majority.
That means that we must repent of our pathetic marriage cultures within the church. For too long, we’ve refused to discipline a divorce culture that has ravaged our cultures. For too long, we’ve quieted our voices on the biblical witness of the distinctive missions of fathers and mothers in favor of generic messages on “parenting.”
For too long, we’ve acted as though the officers of Christ’s church were Justices of the Peace, marrying people who have no accountability to the church, and in many cases were forbidden by Scripture to marry. Just because we don’t have two brides or two grooms in front of us, that doesn’t mean we’ve been holding to biblical marriage. … This means we have the opportunity, by God’s grace, to take marriage as seriously as the gospel does, in a way that prompts the culture around us to ask why.
Simcha Fisher sees a similar reality on the horizon, but takes a somewhat less optimistic view of it:
You need to know what’s coming next, if it’s not already here.
Nationwide gay marriage is probably a foregone conclusion. It’s sort of like a law that you have to pass to find out what’s in it: once gay marriage is commonplace, and is widely accepted as equal to heterosexual marriage, it will be safer for gay couples to stop pretending to be monogamous. And mark my words, this idea of culturally acceptable optional monogamy will stream quickly into heterosexual marriage, until the word “infidelity” will sound stodgy and obsolete to everyone’s ears, gay or straight. “Infidelity” as a sin will rankle our sensibilities, and will sound about as dire as other unfashionable shalt-nots, like indocility, or a failure to be meek. It will become something that only prudes and witless sheep will fret about.
Today, infidelity still sounds like a bad thing to most people’s ears. And that’s a good thing. If gay marriage becomes commonplace, it’s only a matter of time before we lose the very notion of infidelity. God help us. We’ve given up preserving our sense of virtue. If only we can cling to some sense of sin.
Elizabeth Scalia (lots of good links at her post, as well) adds: “Man oh man, are we paying for forty years of bad catechesis, now!” and notes, along with Terry Mattingly, that the deep divisions among Catholics in the pews on gay marriage are mirrored by the divisions among Catholics on the Court itself.
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