The Court and Marriage: The Culture War Deepens - by Hadley Arkes

In The Catholic Think 

The Week of Waiting:  I had spent the first three mornings this week at the Supreme Court, bracing myself for what the Court would deliver on the issue of marriage. And by this time, people know that the decisions Wednesday marked a turn in the culture war. 

Mark Twain said of Wagner’s music that, “it isn’t as bad as it sounds.” But these decisions were worse than they sounded. Some of our friends have sought gamely to pretend that the political contest will go on, contesting marriage state-by-state. And indeed it must. But we will have to summon our genius to find different paths.  

The Court did not exactly produce a Roe v. Wade for marriage. It did not, in one stroke, sweep away all laws that refused to permit same-sex marriage. But the judges put in place the premises that are sufficiently decisive, and all it requires now are the litigants sure to come forward to complete the work.    

They will challenge the laws that make no provision for homosexual marriages and the constitutions that forbid them. They will need only to cite the charged language of Justice Anthony Kennedy in U.S. v. Windsor, striking down Section 3 of the Defense of Marriage Act (DOMA) of 1996. And that will supply a sufficient ground for sweeping away any lingering barriers to same-sex marriage.

In Section 3 of DOMA, the Congress stipulated that “marriage” would refer only to “a legal union between one man and one woman as husband and wife.” But to Justice Kennedy this affirmation of the meaning of marriage bristled with hatred and condemnation. In affirming marriage as the relation of a man and woman, Congress showed a disposition to “disparage” and “demean” gays and lesbians, to deny their “equal dignity” and affect them with a “stigma.” 

As Justice Scalia pointed out, Kennedy was essentially charging with bigotry the people who had drafted this bill, but also the 85 Senators and 347 congressmen who voted for it, along with the president (Clinton) who had signed it. Hate-mongers all.

As it turned out, I was one of the architects of DOMA, and I had led the testimony for the bill in the Judiciary Committee of the House in May 1996. Justice Kennedy’s scathing remarks on the mind that brought forth DOMA seemed to stop just short of attaching my name.  

But it’s worth recalling what brought some of us then to press for DOMA. The Supreme Court of Hawaii had installed same-sex marriage in that state. The question was whether couples could marry in Hawaii, and then, through the Full Faith & Credit Clause of the Constitution, bring their marriages back home to other states. In this way, one state could in effect “nationalize” same-sex marriage. 

A state could refuse to honor marriages coming in from other states if it bore a moral objection, registered in its laws, to those forms of marriage (say, of persons below a certain age). But coming soon was the decision of the Court in Romer v. Evans, which threatened to knock out that prop of authority for the states. Sure enough it came, with the key lines from Justice Kennedy.  

He famously held there that the moral aversion to the homosexual life “seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Centuries of Jewish and Catholic teaching could be reduced then to an “irrational” passion, an “animus.” No law that cast an adverse judgment, then, on the homosexual relation could find a reasoned ground of justification. And therefore a state could not incorporate any longer in its laws an adverse judgment on the homosexual life.

If that were the case, a state could not refuse to honor a same-sex marriage coming in from another state. That is what brought the need for DOMA. The Congress would give guidance to the courts and support the authority of the states in refusing to credit those marriages.   

The Court on Wednesday affected not to touch this part of DOMA. But Justice Kennedy’s premise surely will, for it is the premise that has worked its way through all of the litigation since then.  In Lawrence v. Texas (2003), Justice Kennedy held that the state could not justify laws on sodomy because there was no rational ground on which to condemn the homosexual relations that people pursued in their private lives.  

He insisted at the time that this judgment entailed no “formal recognition” of any other relation – namely, “marriage.” To which Justice Scalia famously said, “Do not believe it.” 

Only five months later, the Supreme Judicial Council of Massachusetts invoked Kennedy’s words in the Lawrence case in striking down the laws on marriage in the Commonwealth and installing same-sex marriage. And Kennedy invoked Lawrence again in striking down DOMA on Wednesday. As Justice Scalia remarked, we are simply waiting for the “second shoe to drop.”   

The activists will come forward to test the laws in the various states, including the laws that offer no recognition of same-sex marriage. And all that a judge needs to do now is invoke Kennedy’s overheated language in U.S. v Windsor. To use an old line, discussing marriage now without Justice Kennedy is. . .like playing Hamlet without the first grave-digger.  

And this is the work of a Catholic jurist.  On all of this, more later.

The Catholic Vote and Mr. Romney - By Hadley Arkes

In The Catholic Thing

The news came last Tuesday when I was doing an interview on radio with a faithful reader of The Catholic Thing, Mike Janocik in Louisville, Kentucky. He sprung on me the findings from the National Catholic Election Survey, taken with quite a large sample.   They were the findings that George Marlin would report the very next day in our columns, and so they struck with more of a jolt, taken in for the first time. 

Among those who called themselves Catholics, Mr. Obama led Mr. Romney by eight points. I quickly protested: A striking difference will appear as soon as the survey separates the nominal Catholics from the Catholics who regularly attend Mass. But the sample was already arranged in that way, and what it revealed was that Romney led Obama by only one point.  

That, it seemed to me, was breathtaking and unbelievable. Could it be that there really was no “Catholic vote,” because Catholics now mirrored the rest of the country in their voting? I know, of course, the tradition that has held many Catholics in the Democratic Party almost as a “default” position.   

But as I tell people, “We all used to be Democrats.” I grew up a child of the Cook County Democratic Organization. At a pro-life meeting in Detroit many years ago, a speaker debunking the population problem laid before us an imagined scene in which everyone in the world were moved into Texas. And Texas, under those conditions, would be less dense than his hometown of San Francisco.   

When it became my turn I remarked that this account moved me to a recognition of faith: If everyone in the world were moved to Texas, and there was no one anywhere else – not in Europe, in Asia, in Africa – I still believed that there would be. . .400,000 Democratic votes reported from Chicago.

But the Democratic party in which so many of us had grown up is long gone. That party has now made the “right to abortion” and gay rights the central pins on which virtually all of its others interests hinge, along with the power of the public service unions. 

The party has brought forth an administration that is perfectly willing to see Catholic institutions close down if they will not fund contraception and abortion in their medical plans. It would see agencies of adoption close if they refuse to place children for adoption with homosexual couples. 

In response to the demands of the Democratic caucus in the House, we can expect to see Catholic hospitals faced with the threat of losing tax exemptions, or authorizations to expand, if they will not perform abortions. The assumption of religious freedom, so long settled, so long taken for granted, is now treated as problematic.  

The current administration and its adherents in the country do not show the least expression of shame when they are faced with this record of treating religious freedom as a matter of no consequence. No big deal. And now we are told that most of the people who describe themselves as Catholics share the sense that there is indeed, in this record, nothing of consequence; nothing that would make a difference to their judgment on the government they would preserve in power this November – or displace. 

George Marlin reflects the reaction of the savvy observers: first the shock at the findings from the surveys, but then the flight to the diagnosis – that Mitt Romney is not “connecting” with middle-class Catholics. Rightly or wrong, many Catholics, worried about their own situations, are not sure, as George Marlin says, that “their working-class values and priorities are [Romney’s].”  

For some of us, the complaint is bizarre, for it is hard to look at the personal lives engaged here and see any notable advantage for Mr. Obama on the measure of “caring.” Nor does he seem exactly comparable to his rival in the private record of ministering to people outside his own family.   

Obamacare has already been holding out the prospect of heavy new taxes and regulations kicking in when employers add a fiftieth employee;  and one finds no flicker of awareness on the part of Mr. Obama that his own policies may be powerfully discouraging employers from the risk of creating new jobs.

But put all of that aside, to the department of conjecture. We are talking now about an administration as hostile to Catholic moral teaching as an administration can be without branding itself explicitly as anti-Catholic.   

The taking of innocent life on a vast scale each year in abortions? No deal breaker, we are to told, for most Catholics. 

When we add this up, it becomes a massive moral distraction to point to Mr. Romney’s problems in “connecting” as though he bore the major fault here. The real scandal involves a Catholic population that has somehow not noticed the war on Catholic life taking place, or has decided that it doesn’t matter.   

I once asked a pro-lifer I knew, an Orthodox Jew, just how he made his argument to Jewish audiences. He said, “I ask them, ‘Are you Jewish? If so, why aren’t you respecting Jewish laws on the child in the womb?’”  

Leave aside Mitt Romney. The real question is for Catholics: Where is your own responsibility to face up to what is happening around you, and the responsibilities you bear – if in fact you are Catholic?

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.