WASHINGTON — The U.S. Supreme Court ruled Friday that same-sex “marriage” is a constitutional right, in a long-awaited decision that will have sweeping and unpredictable consequences for U.S. jurisprudence, cultural norms and religious freedom.
Catholic leaders, legal scholars and marriage experts reacted with dismay to the landmark ruling in Obergefell v. Hodges and three related cases.
But they also expressed resolve that the decision would not discourage their efforts to preach and teach the truth about marriage and to advance respect for the institution as a union of one man and one woman committed to the care and education of children.
“The Supreme Court’s 5-4 decision on marriage is not a surprise. The surprise will come as ordinary people begin to experience, firsthand and painfully, the impact of today’s action on everything they thought they knew about marriage, family life, our laws and our social institutions,” said Archbishop Charles Chaput of Philadelphia, in a statement marking the decision.
“The mistakes of the court change nothing about the nature of men and women and the truth of God’s word. The task now for believers is to form our own families even more deeply in the love of God and to rebuild a healthy marriage culture, one marriage at a time, from the debris of today’s decision.”
Archbishop Joseph Kurtz of Louisville, Ky., the president of the U.S. Conference of Catholic Bishops, equated today’s decision with the court’s controversial Roe v. Wade ruling that legalized abortion on demand. And he vowed that Church leaders would not abandon the truth about marriage.
“Jesus Christ, with great love, taught unambiguously that, from the beginning, marriage is the lifelong union of one man and one woman,” said Archbishop Kurtz, in a statement.
“As Catholic bishops, we follow Our Lord and will continue to teach and to act according to this truth.”
He said it was “profoundly immoral and unjust for the government to declare that two people of the same sex can constitute a marriage.”
Statements issued by Catholic leaders underscored a deepening anxiety that changes in the civil code will sow confusion about the meaning and purpose of marriage, the gift of masculinity and femininity and the rights of natural parents and their children.
Thus, the Archdiocese of Washington drew a bright line between religious/moral truths and civil law.
“Men and women are not interchangeable. Marriage is not ours to define. History, nature and revelation all profess these truths,” read the archdiocese’s statement, which emphasized that the “court deals with civil law, not revealed truth or religious faith.”
‘Catastrophic’ Impact on Free Exercise
Last fall, as the high court signaled that a majority of justices were prepared to find a constitutional right to marriage for same-sex couples, the U.S. bishops and religious-freedom scholars expressed alarm that a imminent decision by the court might ignore free-exercise conflicts posed by “marriage equality.” Months later, during the oral arguments in April, the U.S. Solicitor General Donald Verrilli Jr. acknowledged that religious schools, which oppose same-sex “marriage,” might face an “issue” with their tax-exempt status, among other problems.
Today, in an interview with the Register, Archbishop William Lori, the U.S. bishops’ point man on religious freedom, said it was too soon to judge how the ruling would likely affect free-exercise rights, though he took note of the solicitor general’s remarks in the oral arguments and said Catholics must stay “vigilant.”
“My sense is that the majority opinion written by Justice [Anthony] Kennedy recognizes the right of religious institutions and people to teach and advocate — that is free speech,” said Archbishop Lori.
“But it does not recognize the right to free exercise — that is to say, to advocate in the public square, to try to affect public policy, to organize our ministries according to our teaching, or for business people to run their businesses according to that teaching.
“I did not see anything approaching [support for] free exercise in the majority opinion, but I did see it in Chief Justice [John] Roberts’ [dissent, joined by Justices Antonin Scalia and Clarence Thomas].”
While Archbishop Lori said there was reason to worry that today’s ruling could result in Catholic educational institutions losing their tax-exempt status, he was cautious about addressing a second issue that arose during the oral arguments — whether Catholic priests and deacons would be able to solemnize marriages in the eyes of the law.
“With regard to the civil effect of religious marriages, that is a matter not yet decided by anyone. It is too early,” he said.
Gerard Bradley, a constitutional scholar at the University of Notre Dame Law School, reached a similar conclusion in his initial analysis of the court’s opinions.
Bradley described Kennedy’s murky treatment of free-exercise rights as “catastrophic.”
Explained Bradley: “Kennedy speaks explicitly of those ‘who adhere to religious doctrines’ and thus oppose same-sex marriage ‘by divine precepts.’ He says that the First Amendment ‘ensures’ ‘proper protection’ for these folks and even for ‘religious organizations.’”
However, Bradley pointed out that, throughout this portion of his opinion, one can hear Kennedy predicate this protection of advocacy, teaching, engaging with those who disagree and believers’ “own deep aspirations to continue the family structure they have long revered.”
In contrast, Bradley applauded Roberts’ critique of the majority’s failure to properly engage free-exercise rights.
“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” Roberts noted in his dissenting opinion. “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
While Bradley framed the “decision as an unprecedented threat to religious liberty,” he warned that it was “not nearly the end of the social revolution instigated by the court."
“For standing in front of us now are an array of new challenges to faith, to fidelity in word and deed and to the possibility of living lives of moral integrity,” he told the Register.
Judicial Activism Mirrors Roe v. Wade
Since last October, when the high court declined to hear appeals to rulings that overturned bans on same-sex “marriage” in five states, legal experts and marriage activists understood that the high court was poised to issue a definitive judgment. And a number of appellate courts quickly moved to embrace the new definition of marriage, boosting the number of states that legalized the practice from 19 to 24, with the number of states now at 36.
Yet, during oral argument for the four marriage cases this April, Justice Stephen Breyer, who ruled with the majority on Friday, acknowledged persistent questions about whether nine justices should decide this question, rather than the people’s elected representatives in Congress or at the state level.
In his opinion, the chief justice clearly signaled that the court had overstepped its role.
“If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision,” Chief Justice Roberts stated. “But do not celebrate the Constitution. It had nothing to do with it.”
Opponents of same-sex “marriage” applauded this expression of judicial restraint but were angered that a majority of the justices imposed their beliefs regarding marriage on the nation.
“The left has been preparing the culture for this ruling for years, evangelizing its own gospel of sexual freedom from the constraints of the Judeo-Christian understanding of sexuality and marriage,” Benjamin Wiker, an associate professor of political science at Franciscan University, told the Register.
“With the Supreme Court’s ruling, gay marriage has become the new abortion, yet another moral issue that remains unresolvable as long as Christians put up moral, cultural and legal resistance.”
Indeed, in recent years, support for "marriage equality" has emerged as a key Democratic policy position, just as legal abortion has been for decades. But commentators also pointed to the influence of generational cultural trends that transcend party bounderies and mark a clear break with Christian sexual ethics.
“The majority opinion defines freedom as anyone’s right to define and express his identity. That is the ‘religion of me,’” R.R. “Rusty” Reno, the editor of First Things, told the Register. “This decision reflects the sad fact that this ‘religion of me’ has become our national religion.”
On National Review's website, David French took note of the striking emotional language that pervaded Kennedy's opinion.
"This isn’t constitutional law, it’s theology — a secular theology of self-actualization — crafted in such a way that its adherents will no doubt ask, 'What decent person can disagree?'” wrote French.
Legal experts who had argued against such a decision expressed frustration that the court embraced the confused values of this era and failed to exercise judicial restraint.
“The freedom to democratically address the most pressing social issues of the day is the heart of liberty,” said Jim Campbell, senior legal counsel for the Alliance Defending Freedom, in a statement.
“The court took that freedom from the people and overrode the considered judgment of tens of millions of Americans who recently reaffirmed marriage as the union of a man and a woman.”
Ryan Anderson, a fellow at the Heritage Foundation and a leading voice on marriage, who has debated the issue at universities and on television, said the fight to defend marriage as a union of one man and one woman must continue in every forum available.
“We must work to restore the constitutional authority of citizens and their elected officials to make marriage policy that reflects the truth about marriage,” said Anderson.
“We the people must explain what marriage is, why marriage matters and why redefining marriage is bad for society,” said the scholar in a statement released today.
Like the U.S. bishops, Anderson has warned that the inclusion of same-sex couples in legal marriage would result in the redefinition of a central social institution, already weakened by no-fault divorce, fatherless homes and declining marriage rates among younger Americans.
In his majority opinion, Justice Kennedy rejected this argument.
“The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest,” stated Kennedy.
Anderson countered: “Manifest to five unelected judges that is. Not to the majority of American citizens, who voted to define marriage correctly.”
Weighing Obergefell’s Impact
Meanwhile, the Ruth Institute, which addresses the impact of the sexual revolution on women and familiies, warned that the landmark ruling shifted the issue of same-sex “marriage” from a matter of public debate to a constitutional mandate, with serious consequences for the rights of natural parents and their children.
“The Obergefell decision tacitly declares that invented rights of adults take precedence over natural rights of children,” said Ruth Institute founder and president Jennifer Roback Morse. “The policy of the United States government will henceforth be to take sides with ‘intended parents’ in disputes with natural parents and against the legitimate interests of children to their own genetic and cultural heritage.”
“The Supreme Court has surreptitiously redefined parenthood as a side effect of redefining marriage,” Morse charged.
In the months and years ahead, the full impact of today’s ruling will be understood, not only by legal and marriage experts and religious leaders, but by ordinary Americans.
For now, Catholic bishops, who have already been on the front lines of the marriage wars and the battle for religious freedom, expressed a calm resolve about staying the course.
During a press call today, Archbishop Timothy Broglio of the Archdiocese for the Military Services, acknowledged that Catholics could face penalties for their belief in marriage as a union of one man and one woman, but he reminded his audience that American Catholics had experienced marginalization in previous centuries, and they persevered.
In his interview with the Register, Archbishop Lori recalled the words of Jesus Christ: “Be not afraid.”
“We need to be serene; we need to be firmly rooted in our relationship with Christ and in the teaching of his Church,” said Archbishop Lori, who explained that he found inspiration in the courage and canniness of St. Thomas More.
“We have to be vigilant because we have already faced challenges in states where same-sex marriage exists,” he continued.
“We will have to ask ourselves, on a state-by-state basis, and even the level of municipalities: What is the right thing to do?
“We need to be as creative as we can be. We must make sure the rights of everyone are respected, not just the rights of some. We have a lot of hard work to do.”
Joan Frawley Desmond is the Register’s senior editor.