Responses from right-minded marriage proponents to the Supreme Court’s June 26 decisions in two cases involving the (re)definition of marriage seemed to come in three waves.
The immediate reaction, influenced no doubt by a partisan press, was that the friends of marriage had suffered a severe, and perhaps lethal, blow when the Court first struck down the key provision of the federal Defense of Marriage Act (DOMA), and then denied standing to those challenging the judicial overturn of California’s “Proposition 8,” an initiative that restored the classic meaning of marriage to California law.
The next, more considered reaction went something like this: “Hold on here. The Supreme Court did not declare a constitutional ‘right’ to ‘gay marriage.’ This is not another Roe v. Wade, and the Court did not ‘nationalize’ the marriage debate by peremptorily settling it, like it tried to do with abortion in 1973. The fight for marriage rightly understood, and for an understanding of what government simply cannot do, will go on in the states. Experience shows that the friends of marriage, civil society, and limited government can win a lot of those battles.”
The third reaction tempered the second: “Not so fast. The terms in which DOMA was struck down—defense of marriage rightly understood involves an irrational bias—make it much more difficult to fight this battle in state legislatures, because the rhetorical and moral high ground has been ceded to the proponents of ‘gay marriage.’” Moreover, the understanding of marriage in the DOMA decision—marriage is an expression of personal autonomy and lifestyle choice—offers ground on which successful, state-level ‘limitations’ of ‘marriage’ to heterosexual couples will be challenged at the federal level.”
Contradictory reactions? At first blush, perhaps. But upon further review, as they say in the NFL, all three reactions make sense.
The initial reaction—these decisions were bad defeats for marriage rightly understood—was correct, both in terms of the defense of marriage and a proper understanding of constitutional order. The DOMA and Prop 8 decisions were bizarre in their reasoning at some points, and notable for their lack of reasoning at others. The proponents of “gay marriage” and their media echo chamber knew what they were about when they popped the corks: they had won a major victory.
But it’s also true that it was not the Roe v. Wade-type victory they sought. The proponents of marriage and limited government rightly understood—indeed, the defenders of reality-based law and public policy—have not been denied the opportunity to continue the fight at the state level.
And yet, on the other, other hand, those of us who propose to do precisely that have been labeled bigots and enemies of civility by a majority of the United States Supreme Court. The Court has implicitly accepted the absurd and offensive mantra of President Obama’s second inaugural address—“from Seneca Falls to Selma to Stonewall”—which identified the defenders of marriage rightly understood with those who manned the fire hoses, wielded the billy clubs, and unleashed the attack dogs against peaceful civil rights demonstrators in the Sixties. Our opponents have been given high-caliber rhetorical weapons to launch against us; we need not doubt that they will. And if some way isn’t found to counter that false analogy between racial bigotry and marriage rightly understood, we are not going to win many of state-level battles in this period when we’re permitted to conduct them.
So now what?
In the words of the “Red Tails,” the Tuskegee Airmen of World War II, “we fight, we fight, we fight.” For we are not only fighting in defense of marriage rightly understood; we are fighting against what Benedict XVI often called the “dictatorship of relativism,” elements of which were ominously present in Justice Kennedy’s DOMA decision. Some of those battles will be won, and those expressions of popular will may further stay any temptation by the Supremes to settle this once and for all by federal diktat.
At the same time, and as I have suggested before, the Church must think through, even reconsider, its relationship to civil marriage.