The direction American law has been taking about matters of sex, marriage and family is getting harder and harder to distinguish from descent into insanity. How?

Writing for the majority in Planned Parenthood v. Casey (1992), in which the Supreme Court upheld the “right” to abortion established by Roe v. Wade, Justice Anthony Kennedy asserted:

“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.”

In his dissent from the majority opinion in Lawrence v. Texas (2003), another landmark decision striking down all sodomy laws, Justice Antonin Scalia referred derisively to the Casey paragraph containing that sentence as “the sweet-mystery-of-life passage,” which “ate the rule of law.” Scalia’s allusion to the 1930s song might have seemed innocuous enough at the time. But a dozen years later, writing this time for a 5-4 majority, Kennedy has cited both cases (among others) as precedent for the court’s still-more-radical decision in Obergefell v. Hodges establishing same-sex “marriage” as a constitutional right. Scalia’s newest dissent, which I recommend to all, is as biting as ever.

Now, psychiatrists prescribe lithium for a range of mental illnesses, including schizophrenia. I’ve begun to think that a psychiatrist friend of mine was not far off when, tongue-in-cheek, he called the sweet-mystery sentence “the lithium-deficiency clause.”  

Does an individual have the right to call themselves Jesus Christ or Napoleon? Does their self-definition make it a reality? Or wouldn’t such person be called a lunatic and prescribe treatment from a clinician?  Granted that the answer, at least for the most part, is “No,” the point is that there’s nothing in Kennedy’s opinions to tell us why.

Many Americans can’t even tell you why Caitlyn Jenner (his legal name now), a chromosomally male person with male genitalia, isn’t a woman, as he sincerely believes himself to be.

One might want to reply, of course, that lawyers and judges aren’t that stupid. For people generally, even lawyers, have a robust-enough sense of reality to distinguish kinds of self-definition that are unhinged from those that are not, and those which are voluntary from those that are not. But given the inner logic of the lithium-deficiency clause, which many Americans accept at least implicitly, that robust sense of reality is almost visibly eroding with regard to sex, marriage and family.

Consider: If, as a good many now believe, same-sex marriage (SSM) is fine because marriage is about love and people of the same sex can love each other, why limit marriage to monogamous pairs? As far as I can tell, in current culture there is no morally principled reason why. (Religion, of course, says otherwise.) There is only the lingering sense in the secular world that the practical difficulties of polyamorous marriage — the ease with which jealousies can arise, financial complications, etc. — would make it undesirable for most people. And that sense may well be sound. But such difficulties hardly suffice to make polyamorous marriage immoral, never mind illegal, to the “modern” mind. Indeed, what argument could there be — other than the increased risk of birth defects — against marriages between two consenting adult siblings of opposite sexes? As far as I can tell, society says the answer is none. And I expect that we in the “developed” world will see such things legally recognized as marriage, for the few who want it, in the not-too-distant future. The logic of the lithium-deficiency clause does nothing to stop that outcome and everything to encourage it.
When expressed, however, such misgivings are often dismissed like this: “Oh, that’s just the slippery-slope fallacy. Ain’t gonna happen. People know better than that.” But that sort of dismissal can itself be fallacious. In this case, it is.

Late last year, Richard Mouw, professor of faith and public life at Fuller Theological Seminary, noted that despite posing the above questions, often, “I have never been given an adequate answer.”

Robert George, McCormick Professor of Jurisprudence at Princeton University, has often noted the same. For instance, toward the end of an extended exchange last summer with his Princeton colleague Jameson Doig, emeritus professor of politics and public affairs, George restated the challenge to Doig and other defenders of SSM:

“I asked you to identify a principle, consistent with your view of marriage as sexual-romantic companionship or domestic partnership (and your rejection of the historical, conjugal understanding of marriage as the one-flesh union of husband and wife) to support the marital norms you wish to maintain — exclusivity, fidelity, permanence, a limit of two persons — while jettisoning the norm of sexual complementarity. Instead of identifying principles, you restated the norms. But, again, restating a norm simply does not qualify as providing a principle in its support. So I must continue to point out that your view provides no principled ground for excluding from marriage law any form of human companionship, of any size or degree of commitment or affective shape or distribution of mutual duties.”