The U.S. Supreme Court’s rulings on two landmark marriage cases were not unexpected. But when Catholics read the majority opinion striking down the federal Defense of Marriage Act, it was hard not to flinch.
"DOMA seeks to injure the very class New York seeks to protect," stated Justice Anthony Kennedy, writing for the majority in United States v. Windsor, a case that began after a New York resident was forced to pay huge federal estate taxes because federal law did not recognize her legal relationship with her female partner.
"The Constitution’s guarantee of equality must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group," wrote Justice Kennedy. "In determining whether a law is motived by an improper animus or purpose, ‘[d]iscriminations of an unusual character’ especially require careful consideration. DOMA cannot survive under those principles."
It’s one thing for partisan advocates of "marriage equality" to condemn the biblical (and cultural, societal and natural) understanding of marriage as discriminatory and bigoted. It’s another thing to have a Supreme Court justice denounce your deepest moral and spiritual beliefs.
It’s worth noting that Chief Justice John Roberts and the three other justices who dissented from the majority opinion dismissed the assertion that "animus" toward same-sex couples prompted Congress to pass the law. But experts predict that Kennedy’s condemnatory language will be employed in future challenges to state constitutional amendments barring same-sex "marriage."
"A couple of the same sex need merely go into a federal court and invoke Justice Kennedy’s opinion in the DOMA case: The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate," said Hadley Arkes, a professor of jurisprudence at Amherst College in a post on the NationalReview.com blog Bench Memos.
We are moving into deep waters.
When President Obama marked the rulings with a bold promise that his administration would respect how "religious institutions define and consecrate marriage," his statement only served to remind Catholics that the free exercise of religion was now under threat from Uncle Sam’s new definition of marriage as well as the federal mandate forcing coverage of contraception and abortion services.
This is surely the time to pause and reflect on the future of marriage in our great nation, where 40% of live births are non-marital and sacramental marriage is in decline. We need to shore up our "marriage culture" in the Church and in our homes.
Of equal importance, we need to effectively counter the Orwellian doublespeak that reframes a central social institution as a couple’s romantic relationship with no particular stake in the generation and education of future Americans. Young people need to know that traditional marriage, despite the poor track record of many spouses who have divorced, still remains the most secure sanctuary for human life and for nurturing the dignity of women, men and children.
It won’t be easy. The politics of "marriage equality" has sidelined an urgent national conversation about the decline of marriage. Instead, legal marriage is presented as an instrument for personal affirmation and financial benefits. Increasingly, children’s deep yearnings for a mother and a father have been consigned to the dustbin of history. Marriage lite is truth lite.
"What becomes normative, then, is not natural law, but the polls; not the Constitution, but the ‘correct’; not the Bible, but the blogs and the TV; not the Church, but the chic," said Cardinal Timothy Dolan of New York in a statement released after the high court’s rulings.
Archbishop Charles Chaput of Philadelphia echoed that cautionary view and pointed to the elephant in the room: "Same-sex unions, whatever legal form they take, cannot create new life. They cannot duplicate the love of a man and woman. But they do copy marriage and family, and, in the process, they compete with and diminish the uniquely important status of both."
Archbishop Chaput did not spell out what form this competition would take, but advocates for "marriage equality" have already insisted that same-sex couples are equally able to have children and can easily employ a surrogate mother or select donated sperm. Will the normalization of surrogacy affirm the dignity of women or treat their bodies as instruments of use by the highest bidder? Will the state be required to mediate such disputes, weakening parental prerogatives?
Yet, as we distill the import of this watershed moment for our republic, we must remain clear about what Justice Kennedy’s majority opinion in the DOMA case did not do: It did not render all state laws barring same-sex "marriage" unconstitutional.
Thus, however dispiriting the court’s decisions may be, we cannot let them become an excuse for inaction.
"Citizens in all 50 states remain free to discuss and debate laws on marriage," Ryan Anderson, co-author of What Is Marriage? Man and Woman: a Defense, told the Register during an interview after the rulings were announced. "They should continue to do this, and they should continue to tell the truth that marriage matters for children, society and limited government."
It’s time for all Catholics and loyal Americans who have remained on the sidelines during this consequential debate to get involved. We must, in the words of Cardinal Dolan, "continue to explore every method of reversing this sad and worrisome decision, reminding our elected officials and magistrates that the rights of conscience and religious freedom are not government favors or concessions, but flow from the very nature and dignity of the human person. And we never give up hope."