Black Bench, DC

The question before the Supreme Court is whether states will have any voice at all in how they see and handle marriage.

Black Bench is a polis within a metropolis. Its population—nine individuals robed in black—is constant. When one of its inhabitants retires or dies, an outsider—vetted, appointed, and affirmed—fills the vacancy. Its raison d’être is to mete out fair and impartial justice à la the US Constitution and its amendments. As the court of last resort, it promises hope and succor to the burdened, besieged, and bullied.

A Western metaphor

If Black Bench were the locus of a classic Western, one might picture life-promising Sweetwater in Once Upon a Time in the West or the life-preserving stagecoach stop in The Ballad of Cable Hogue. The town pillar of Black Bench would (of course) exude the right stuff as does Will Kane (Gary Cooper) in High Noon: minimal palaver, maximal soul-searching, cutting-edge virtue, righteous action.

Truth be told, Black Bench is more reminiscent of Black Rock, the arid, 1/4-horse town in the film Bad Day at Black Rock. Coincidentally, there are nine main characters in the movie, not counting the outsider, John Macreedy (Spencer Tracy) who is searching for the father of the soldier who died saving Macreedy’s life during a WWII campaign in Italy. 

But the father—a Japanese-American farmer in nearby Adobe Flat—has vanished, and his ranch house is a pile of cinders. Regarding his disappearance, Black Rock’s inhabitants are divided into those colluding and those cowering. Four years before, the town’s demagogue and his accomplices had wanted to scare farmer Komoko, but things had gotten out of hand. Translation: arson and death.   

An unfortunate outcome, but not altogether unwarranted, thought the conspirators. At the time, America was at war in the Pacific because of Japan’s surprise attack on Pearl Harbor. Following that “Day of Infamy,” Bataan and Corregidor had fallen, and US and Philippine troops, in the tens of thousands, began their captivity by trying to stay alive on the infamous Bataan Death March—60 miles of dehydration, starvation, and physical brutality.

The Japanese captors saw the Allied captives as sub-human because they had surrendered. In response to the reported atrocities, Americans judged the captors as sub-human. No surprise, then, when half of Black Rock deemed Komoko guilty by heritage and less than human, regardless of his US citizenship.

An Infamous Day at Black Bench

Back to the metaphorical point: In early 1973, the leader of Black Bench and six of his associates ruled that a woman’s womb was the most private chamber in the United States, more private even than their own. The key to that chamber was solely the woman’s—no one else had access to, or any claim over, the human life developing inside, save for the woman’s doctor. Even the man supplying half the new life’s DNA had no say, unless that life was “wanted.”

Chief Justice Blackmun and his collaborators were convinced that no one knew for certain when human life began: “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer” (Roe v. Wade, Majority Opinion, IX.B). But speculate they did: fetal life this side of viability was not necessarily human; at best, it was less than human for most of the nine-month gestation.

Things quickly got out of hand, and the womb became the most dangerous place in which to exist in America, not—as designed—the safest. Roe v. Wade launched America’s own version of Cambodia’s “killing fields.” With abortions in the United States now at 55 million plus, the clamor is for more control, and at both ends of the human life spectrum.

Indeed, the success of the abortion movement has fueled the success of today’s assisted suicide/euthanasia movement. In a letter to the Washington Times (6/18/2006), Derek Humphry, founder of the Hemlock Society, wrote: “…Roe v. Wade opened up a necessary and significant debate in America on choice over personal decisions about one’s body. The right to choose to die is a corollary of that” (emphasis added).

January 22, 1973 proved to be cataclysmic. The Supreme Court ruling irrevocably changed the course of history of the United States and, by extension, the world. Persons born after that day do not know whether they have met all the people they would have met (and perhaps befriended or even married) had teenager Harry Blackmun stayed awake during high school biology, realized that a new human life began at the moment of conception, and (when the time came) led the charge against Roe.

DOMA and the camel’s nose

The Defense of Marriage Act (DOMA) came into existence in 1996. The purpose of DOMA was to cement, at the federal level, the traditional understanding of marriage. DOMA said that (1) no state had to recognize a same-sex marriage from another state, and (2) the word “marriage,” for federal and inter-state recognition purposes in the United States, meant a legal union between one man and one woman as husband and wife.

DOMA did not restrict states from passing legislation for or against same-sex marriage, but it did prevent a same-sex couple who, having married in a non-traditional marriage state, wanted the same rights in a traditional marriage state. DOMA was, in effect, an interstate anti-bullying law.

Then came United States v. Windsor (June 26, 2013) in which the Supreme Court of the United States (SCOTUS) held that restricting the federal interpretation of “marriage” and “spouse” to apply only to heterosexual unions was unconstitutional under the Due Process Clause of the Fifth Amendment. Justice Anthony Kennedy wrote the majority opinion; his words in a nut shell: “The federal statute [DOMA] 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.”

Any bystander could see that, with the camel’s nose in the tent, the rest of the camel would soon follow. Justice Scalia, one of the four dissenters, predicted as much: 

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples.

Throwing out half of DOMA signaled that DOMA was doomed. Indeed, presently all but the camel’s tail is inside.

Red sky in the morning…

Prior to US v. Windsor, 31 states had constitutional amendments banning same-sex marriage (SSM) and 11 additional states defined marriage as between one man and one woman. So 42 states had committed to the traditional view of marriage, confident that DOMA would keep doing the job for which it was designed. But, after US v. Windsor, several US district judges took their cue from Justice Kennedy and became de facto hired guns (Have Fiat—Will Travel) for the SSM revolution.

As a result, the American marital landscape has drastically changed: 37 states now recognize SSM; seven states have had their ban on SSM overturned (but the overturning decisions have been stayed for the time being); six states still ban SSM. Those who espouse the redefinition of marriage are salivating about the possibility that SCOTUS will rid the land of the other half of DOMA by the end of June 2015.             

SCOTUS has already heard arguments on the redefinition of marriage and will collectively decide on the question any day now. Prognosis: Justices Ginsburg, Breyer, Sotomayor, and Kagan will vote to abolish the vestiges of DOMA, federally validating SSM for all 50 states. Chief Justice Roberts and Justices Scalia, Alito, and Thomas will vote to hold the fort. Justice Kennedy will again be the Decider.

During the oral arguments preceding US v. Windsor (March 2013), Justice Kennedy voiced his concern for children who were adopted by same-sex parents: “…there is an immediate legal injury, or what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California…that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?”

For his statement to make sense, Justice Kennedy had to assume that the children in question would choose their same-sex parents over a mother and a father (biological or not) given the retroactive option. Robert Lopez and Katy Faust, raised by gay parents, challenged that assumption with their respective testimonies, “Justice Kennedy’s 40,000 Children” (Public Discourse, The Witherspoon Institute, May 2, 2013) and “Dear Justice Kennedy: An Open Letter from the Child of a Gay Parent” (Public Discourse, The Witherspoon Institute, February 2, 2015).

Despite the love and respect they had, and have, for their parents, Lopez and Faust were blowing the whistle on the presumed and heralded efficacy of the gay-parent experiment. In doing so, they believed that they were, and are, speaking for the silent majority.

Justice Kennedy also had to assume that children raised by two mothers or two fathers were yearning to have their parents “married” as if that would assuage, perhaps erase, the adverse effects of not being raised by a mother and a father (biological or not). Neosporin naively applied to an itchy, translucent mole.

Via US v. Windsor, Kennedy’s judicial “compassion” swept away California’s Proposition 8 (the 2008 ballot initiative that gave CA voters a yes or no vote on one-man-one-woman marriage) and made moot any future claim that children in gay-parent households inherently desired marriage for their two moms or two dads. By not giving legal standing to the advocates of Prop 8, SCOTUS also made moot the voice of a majority: 52.24 percent of an 80 percent California-voter turnout.

… sailors take warning

Now the question before SCOTUS is whether states will have any voice at all in how they see and handle marriage. What heart-felt argument could sway Justice Kennedy this time?

In 1955, moviegoers knew that the man getting off the train in Black Rock could rectify any situation he encountered, however menacing, even with only one good arm. That was because Spencer Tracy played the newcomer. Tracy’s DNA contained immutable building blocks—wisdom, righteousness, courage, tenacity, and to-the-bone honesty, to name a few. He was the Rectifier, however reluctant.

Not so with a relative newcomer in town, Chai Rachel Feldblum. Ms. Feldblum is a professor of American law at Georgetown University and an activist for disability and LGBT rights. In March 2010, President Obama appointed Feldblum to the Equal Employment Opportunity Commission, and the Senate confirmed her to a five-year term.

In 2006, Feldblum founded the Moral Values Project at Georgetown University. Part of the mission statement:

We believe that moral values matter in the governing of our polity. And we believe that Americans can articulate, and live up to, a more progressive set of moral values regarding sexuality, sexual orientation, and gender equity. Sexuality can be a positive, important force in our lives. Heterosexuality, homosexuality, and bisexuality are all morally neutral. But the love that is expressed by those who are straight, gay, or bisexual is morally good—and all equally morally good. All forms of gender are morally neutral. But lack of gender equity is morally bad.

Michael Cook, editor of MercatorNet, has written an excellent synopsis of Feldblum’s clout and thought. Her goal is to get the populace to believe that gay is good, that is, moral. Once gay has the same standing as straight in the nation’s collective moral vision, everything else will fall into place, including the acceptance of gay marriage.

Feldblum’s tri-view of human liberty is the key to understanding her present and future influence on the marriage debate. For her, there is bodily liberty, belief liberty, and identity liberty.

Cook points out that “identity liberty” had its nascence in Planned Parenthood v. Casey (1992), the SCOTUS ruling that upheld Roe v. Wade. One sentence in the ruling stands out: “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 human life.”

Such a malleable view of liberty, including the belief that the human person is the arbiter of his or her own internal truth vis-À-vis the external world, seems to be today’s #1 intoxicant. Bruce Jenner, 1976 Olympic decathlon champion, had always felt that he was a woman, so he recently became Caitlyn Jenner. Rachel Dolezal, a former Washington State NAACP leader recently outed as Caucasian, still identifies herself as African-American. Down to bathroom visits, America is transfixed with transgenderism.  

Anyway, back to Chai Feldblum. The reader can see where she is headed: belief liberty is certainly important, but it comes from the outside, from religious teachings and precepts. As such, it is not controlled by the individual. To the contrary, identity liberty comes from within. It belongs to the very mystery of the person’s makeup. Therefore, when belief-push comes to identity-shove, identity must trump belief. It is in a person’s DNA.

In 2006, Feldblum wrote an enlightening article for the Brooklyn Law Review titled, “Moral Conflict and Liberty: Gay Rights and Religion,” one of the few worthwhile LGBT reads in the marriage debate. Concerning the redefinition of marriage, it turns out to be a strategic and prescient map of the battle lines now drawn.

In the final two paragraphs of “Moral Conflict and Liberty,” Feldblum melds her genuine good will with her view that the continental plate underlying human nature is naturally shifting towards identity, giving it the proper land mass it deserves:

My primary argument is that we gain something as a society if we acknowledge that a law requiring individuals to act in a certain way might burden some individuals’ belief liberty. Such an acknowledgement is necessary if we wish to be respectful of the whole person. Protecting one group’s identity liberty may, at times, require that we burden others’ belief liberty. This is an inherent and irreconcilable reality of our complex society….

But in dealing with this conflict, I believe it is essential that we not privilege moral beliefs that are religiously based over other sincerely held core, moral beliefs. Laws passed pursuant to public policies may burden the belief liberty of those who adhere to either religious or secular beliefs. What seems of paramount importance to me is that we respect these core beliefs and do the best we can in this imperfect world of ours to protect both identity liberty and belief liberty to the greatest extent possible. (p. 123)

What kind of Black Bench Day is in the offing?

Feldblum is proffering the fruit of a tree akin to the tree of the knowledge of good and evil. The fruit looks and tastes good; it has the acidity of self-awareness, self-identity, and self-affirmation. Its nutritional promise is powerful: eating it confers the power to rewire one’s internal wiring.

The connection: Justice Anthony Kennedy, the probable swing vote in the redefinition-of-marriage debate, is already partial to such fruit. Indeed, Kennedy was the deciding vote in Planned Parenthood v. Casey and co-authored the key statement about the “right to define one’s own concept of existence.”

Justice Kennedy has been a Black Bench inhabitant for the past 27 years. He knows the prevailing winds. He knows from which direction the dust will roil on any particular day. He knows who gets off at the train stop and for what reason. He knows the briefs the visitors will advocate. He knows how his associates will react to those briefs.

So, the chance that Justice Kennedy knows Chai Rachel Feldblum—if not personally, certainly by reputation and argument—is extremely high. She has but refined his incipient ideas on liberty and the malleable nature of the human person.

Justice Kennedy is not just a weather vane. Presently he has a power akin to Thor’s. He may well be the one who decides what kind of day—good, so-so, or bad—Black Bench will soon have. 

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About John S. Hamlon 9 Articles
John S. Hamlon taught religion, philosophy, physics, and chemistry at the high school level prior to teaching undergraduate and graduate courses on the Catholic Catechism, marriage, and Christian ethics. He continues to teach theology/philosophy courses for adults at Easter's Faith Formation Center, Sacramento, CA. He has an MA in theology from the University of San Francisco and did doctoral work in systematic theology at the Graduate Theological Union, Berkeley. He was the associate director of the St. Ignatius Institute, University of San Francisco from 1994 to 2001. Prior to that, he was the program director for national and international conferences on NFP, marriage, and family at St. John’s University, Collegeville, MN. He’s the author of A Call to Families: A Commentary and Study Guide for Familiaris Consortio.