After Obergefell on same-sex marriage: The Effects on Law, Culture, and Religion
BY SHERIF GIRGIS JULY 20,2015
“You must 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
In 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.
But 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 that—surely one of the Sexual Revolution’s crueler lies. We who refuse to collapse all companionship into marriage—to treat non-romantic love as simply less—can 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.
First, 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-twentieth-century judges’ imposition of social policy without legal warrant.
The 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 laws—not their own, free-floating sense of justice—supported their rulings.
In 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 failed.”
It’s 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.”)
Even 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.
Here’s 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.
A 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.
Yet these 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.
Why? Because now the most prestigious secular organ of American society—the Court that helped make Martin Luther King’s dream a reality—stands 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?
Our highest court—our secular Magisterium—has 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 love—the “intimacy” and “spirituality”—that Kennedy makes the definition of marriage?
The revisionist view that the majority (and, let us admit, millions of Americans for years) has taken for granted—a review which equates true love with marriage alone, and both with the fulfillment of emotional needs—is 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 life—indeed, our ability to hand on the faith to our children—is 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 professor 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 marriage—or 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 otherwise—to 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 ethic—and 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 women—or fidelity in a flagging marriage and similar hardships.
The basics, though, Obergefell doesn’t change. In every age—not just ours—one 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).
Editor’s note: This essay first appeared June 29, 2015 in Catholic World Report and is reprinted with permission. (Photo credit: Ten Eytan / Flickr)