In MercatorNet
In the just-decided United States v. Windsor
case, Justice Anthony Kennedy delivered the opinion of the court that the Federal
Defense of Marriage Act, which defines marriage as between a man and a
woman, is unconstitutional.
Within hours, the decision began rippling
through the Federal government, as it affects more than 1,000 Federal statutes
and the whole realm of Federal regulations. "The Department of Defense
welcomes the Supreme Court's decision today on the Defense of Marriage
Act," said an eager Secretary of Defense Chuck Hagel. "The department
will immediately begin the process of implementing the Supreme Court's decision
in consultation with the Department of Justice and other executive branch
agencies. The Department of Defense intends to make the same benefits available
to all military spouses – regardless of sexual orientation – as soon as
possible. That is now the law and it is the right thing to do".
Right, as in the “moral” thing to
do? Let us consider.
In the history of the United States, only
heterosexual married couples have ever received Federal marriage benefits. In
1996, confirming what had always been the practice, Congress passed DOMA to
provide a formal definition of “marriage” and “spouse” for the purposes of all
acts of Congress and any Federal regulations.
How did this become a problem?
In 2009, Edith Windsor, who had “married” her
lesbian partner in Ontario, Canada, in 2007, sought to claim the Federal estate
tax exemption for surviving spouses when her partner died. In compliance with
DOMA, the Internal Revenue Service denied the exemption for the US$363,053 that
she was required to pay. Windsor, a New York resident, sued, contending that
the principles of equal protection incorporated in the Fifth Amendment were
violated since her marriage had been recognized by the state of New York.
The Federal District Court found in her favor,
as did the Second Circuit Court. The House of Representatives was allowed to
intervene in the case to defend the constitutionality of DOMA when the Obama
administration withdrew its defense of the law. Thus, the case arrived at the
Supreme Court in the spring of 2013.
The Windsor decision, delivered on June
26, 2013, the 10th anniversary of the Lawrence v. Texas decision, was
every bit as bad as one would expect from its predecessors. It simply followed
their logic. In fact, it was so predictable as to make specious Justice Kennedy’s
preceding claim in Lawrence that that decision “does not involve whether
the government must give formal recognition to any relationship that homosexual
persons seek to enter”.
Of course it did.
In retrospect, his remark sounds almost
hilariously naïve or disingenuous. In fact, in certain aspects, the Windsor
case reads as if Justice Kennedy is having a conversation with himself over the
span of a decade. Finally, 10 years after Lawrence, he closes the loop.
He even quotes himself. “Private, consensual sexual intimacy between two adult
persons of the same sex may not be punished by the State,” he said, “and it can
form ‘but one element in a personal bond that is more enduring’".( Lawrence
v. Texas, 539 U. S. 558, 567 (2003)). That’s the setup. Then Justice
Kennedy closes the loop:
“By its recognition of the validity of same-sex
marriages performed in other jurisdictions and then by authorizing same-sex
unions and same-sex marriages, New York sought to give further protection and
dignity to that bond. For same-sex couples who wished to be married, the State
acted to give their lawful conduct a lawful status. This status is a
far-reaching legal acknowledgment of the intimate relationship between two
people, a relationship deemed by the State worthy of dignity in the community
equal with all other marriages”.
That bridge from “lawful conduct” to “lawful
status”, conferring equal dignity upon same-sex marriage, had been there to
cross ever since Justice Kennedy lifted the starting gate in Lawrence.
Once he and his confrères had found a constitutional right to sodomy, there was
almost no way to stop enshrining the act as the basis for “marriage”. All the
preceding judicial groundwork is brought to fruition here, though it leaves one
step yet remaining – to declare unconstitutional all remaining state laws that
restrict marriage to a man and a woman.
In his dissent, Justice Antonin Scalia predicted
that this will be the next shoe to drop, just as he predicted this decision in
his Lawrence dissent. In fact, he brilliantly illustrates how this will
happen by taking several paragraphs of the Windsor decision and simply
substituting the words “this state law” for “DOMA”. Voilà, there is the case
ready-made for voiding all state prohibitions of same-sex marriage. He also
stated that:
“By formally declaring anyone opposed to
same-sex marriage an enemy of human decency, the majority arms well every
challenger to state law restricting marriage to its traditional definition.
Henceforth those challengers will lead with this Court’s declaration that there
is ‘no legitimate purpose’ served by such a law, and will claim that the
traditional definition has ‘the purpose and effect to disparage and to injure’
the “personhood and dignity” of same sex couples”.
In Windsor, we see nearly complete the
results of the denial of marriage as a fundamental institution natural to
man, and the redefinition of it as an artificial construction, à la
Jean-Jacques Rousseau, that can be remolded to his will and whim. "The
Federal statute is invalid,” Kennedy wrote, “for no legitimate purpose
overcomes the purpose and effect to disparage and to injure those whom the
state, by its marriage laws, sought to protect in personhood and dignity".
If marriage is an artificial fabrication,
Justice Kennedy is right. The state can redefine the convention of marriage and
assign it to whom it will, and no one can gainsay it. In fact, to deny marriage
to anyone would seem to be arbitrary.
Yet this is not what the Supreme Court said in
the past. Recall that in 1885, the Murphy v. Ramsey ruling declared
that, “For certainly no legislation can be supposed more wholesome and
necessary in the founding of a free, self-governing commonwealth, fit to take
rank as one of the coordinate states of the Union, than that which seeks to
establish it on the basis of the idea of the family, as consisting in and
springing from the union for life of one man and one woman in the holy estate
of matrimony; the sure foundation of all that is stable and noble in our
civilization; the best guarantee of that reverent morality which is the source
of all beneficent progress in social and political improvement…”
This seems a rather eloquent enunciation of a
“legitimate purpose” in the definition of marriage as between a man and a
woman, one that Aristotle would easily recognize. How could it not have
occurred to Justice Kennedy, who seemed completely unaware of it – to the point
that he dismisses its possible existence as a legitimate purpose?
Another interesting point is the repeated
emphasis in Windsor on the authority of state law to define marriage.
Indeed, no constitutional scholar would dispute this authority. But does it
include the power to define it as anything? The Murphy ruling did
not hold so. In Reynolds v. United States (1878), the Court also did not
consider that it included polygamy because, in part, “polygamy leads to the
patriarchal principle… which, when applied to large communities, fetters the
people in stationary despotism, while that principle cannot long exist in
connection with monogamy”.
Apparently, there is a relationship between the
sort of marriage you allow and the freedom you exercise. Was Justice Kennedy
aware of this consideration? Also, did not the prohibition of polygamy have
“the purpose and effect to disparage and to injure” those who practiced it?
Justice Kennedy said that DOMA’s message to “married” homosexuals and lesbians
was “that their marriage is less worthy than the marriages of others" and
imposed "a stigma upon all who enter into same-sex marriages". If
that was his main objection, when Justice Kennedy is confronted with cases of
polygamy or polyandry, as surely he will be if he lives long enough, what
criteria has he left in place to object to them?
What DOMA did was refuse to subsidize the
redefinition of marriage in those states that chose to redefine it by refusing
Federal benefits to same-sex couples. This, of course, was completely within
the legitimate power of Congress to do, and did not in any way constitutionally
impinge upon the power of the states. The Windsor decision proposes the
novel notion that definitions in state law preempt definitions in
Federal law that concern Federal law.
Since when?
The philosophical and moral nub of the matter
was reached with Justice Kennedy’s statement that, “What the State of New York
treats as alike the Federal law deems unlike by a law designed to injure the
same class the State seeks to protect”. In other words, are heterosexual marriages
like or unlike same-sex “marriages”? Are sodomitical “marriages”,
as Windsor asserts, “equal with all other marriages”? And, therefore,
was the problem with DOMA that it strove to take what was equal and “make them
unequal”, and that its “principal purpose is to impose inequality”? Was DOMA imposing
inequality or simply recognizing it? Is sodomy really the
same as conjugal coition?
Obviously, the Windsor ruling rests upon
the extraordinary proposition that marriage, as it has been understood
throughout recorded history, is the same as sodomitical “marriage”, which was
unheard of until the Netherlands introduced it in 2000.
To claim that homosexual marriage is equivalent
to the family, the sine qua non of the enduring existence of any
political order, is to deny the foundations of society. To claim that a type of
behavior on which the polis is founded is equivalent to a type of
behavior inimical to a polity’s foundation is to deny the principle of
non-contradiction. Homosexuals want their marriages to be recognized as a part
of the social order, and the Supreme Court has bestowed it.
However, it has been clear since at least
Aristotle that the interest of the state in marriage is in its essential role
for the propagation of society. Homosexual “marriages” play no such part in
society, as they are neither unitive nor procreative; so what would be the
interest of the state in recognizing them? Why is homosexual marriage morally
or politically worthy of institutional protection? The price for providing it
is to remove both the unitive and procreative aspects essential to marriage,
thus evacuating it of meaning and replacing it with “pretend” marriage. So as
not to hurt the feelings of homosexuals, let them pretend they are married. In
fact, let’s pretend with them. Even more, we will make everyone pretend
together. Then no one will be hurt.
Alas, the price for this embrace of unreality is
too high. It is a betrayal of the nuptial meaning of the body. Sodomy is an act
opposed to the good of marriage. How, then, can it be its foundation? Something
cannot be its opposite. But the Supreme Court has just said that it can, and
that the Federal government and we as taxpayers must agree. “Thinking against
nature”, wrote Irenaeus in Against Heresies (180 AD), “you will become
foolish. And if you persist you will fall into insanity”. QED.
In the just-decided United States v. Windsor case, Justice Anthony Kennedy delivered the opinion of the court that the Federal Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.
Within hours, the decision began rippling through the Federal
government, as it affects more than 1,000 Federal statutes and the whole
realm of Federal regulations. "The Department of Defense welcomes the
Supreme Court's decision today on the Defense of Marriage Act," said an
eager Secretary of Defense Chuck Hagel. "The department will immediately
begin the process of implementing the Supreme Court's decision in
consultation with the Department of Justice and other executive branch
agencies. The Department of Defense intends to make the same benefits
available to all military spouses – regardless of sexual orientation –
as soon as possible. That is now the law and it is the right thing to
do".
Right, as in the “moral” thing to do? Let us consider.
In the history of the United States, only heterosexual married
couples have ever received Federal marriage benefits. In 1996,
confirming what had always been the practice, Congress passed DOMA to
provide a formal definition of “marriage” and “spouse” for the purposes
of all acts of Congress and any Federal regulations.
How did this become a problem?
In 2009, Edith Windsor, who had “married” her lesbian partner in
Ontario, Canada, in 2007, sought to claim the Federal estate tax
exemption for surviving spouses when her partner died. In compliance
with DOMA, the Internal Revenue Service denied the exemption for the
US$363,053 that she was required to pay. Windsor, a New York resident,
sued, contending that the principles of equal protection incorporated in
the Fifth Amendment were violated since her marriage had been
recognized by the state of New York.
The Federal District Court found in her favor, as did the Second
Circuit Court. The House of Representatives was allowed to intervene in
the case to defend the constitutionality of DOMA when the Obama
administration withdrew its defense of the law. Thus, the case arrived
at the Supreme Court in the spring of 2013.
The
Windsor decision, delivered on June 26, 2013, the 10th anniversary of the
Lawrence v. Texas
decision, was every bit as bad as one would expect from its
predecessors. It simply followed their logic. In fact, it was so
predictable as to make specious Justice Kennedy’s preceding claim in
Lawrence
that that decision “does not involve whether the government must give
formal recognition to any relationship that homosexual persons seek to
enter”.
Of course it did.
In retrospect, his remark sounds almost hilariously naïve or disingenuous. In fact, in certain aspects, the
Windsor case reads as if Justice Kennedy is having a conversation with himself over the span of a decade. Finally, 10 years after
Lawrence,
he closes the loop. He even quotes himself. “Private, consensual sexual
intimacy between two adult persons of the same sex may not be punished
by the State,” he said, “and it can form ‘but one element in a personal
bond that is more enduring’".(
Lawrence v. Texas, 539 U. S. 558, 567 (2003)). That’s the setup. Then Justice Kennedy closes the loop:
“By its recognition of the validity of
same-sex marriages performed in other jurisdictions and then by
authorizing same-sex unions and same-sex marriages, New York sought to
give further protection and dignity to that bond. For same-sex couples
who wished to be married, the State acted to give their lawful conduct a
lawful status. This status is a far-reaching legal acknowledgment of
the intimate relationship between two people, a relationship deemed by
the State worthy of dignity in the community equal with all other
marriages”.
That bridge from “lawful conduct” to “lawful status”, conferring
equal dignity upon same-sex marriage, had been there to cross ever since
Justice Kennedy lifted the starting gate in
Lawrence. Once he
and his confrères had found a constitutional right to sodomy, there was
almost no way to stop enshrining the act as the basis for “marriage”.
All the preceding judicial groundwork is brought to fruition here,
though it leaves one step yet remaining – to declare unconstitutional
all remaining state laws that restrict marriage to a man and a woman.
In his dissent, Justice Antonin Scalia predicted that this will be
the next shoe to drop, just as he predicted this decision in his
Lawrence dissent. In fact, he brilliantly illustrates how this will happen by taking several paragraphs of the
Windsor
decision and simply substituting the words “this state law” for “DOMA”.
Voilà, there is the case ready-made for voiding all state prohibitions
of same-sex marriage. He also stated that:
“By formally declaring anyone opposed to
same-sex marriage an enemy of human decency, the majority arms well
every challenger to state law restricting marriage to its traditional
definition. Henceforth those challengers will lead with this Court’s
declaration that there is ‘no legitimate purpose’ served by such a law,
and will claim that the traditional definition has ‘the purpose and
effect to disparage and to injure’ the “personhood and dignity” of same
sex couples”.
In
Windsor, we see nearly complete the results of the denial of marriage as a fundamental institution
natural to man, and the redefinition of it as an
artificial construction,
à la Jean-Jacques Rousseau, that can be remolded to his will and whim.
"The Federal statute is invalid,” Kennedy wrote, “for no legitimate
purpose overcomes the purpose and effect to disparage and to injure
those whom the state, by its marriage laws, sought to protect in
personhood and dignity".
If marriage is an artificial fabrication, Justice Kennedy is right.
The state can redefine the convention of marriage and assign it to whom
it will, and no one can gainsay it. In fact, to deny marriage to
anyone would seem to be arbitrary.
Yet this is not what the Supreme Court said in the past. Recall that in 1885, the
Murphy v. Ramsey
ruling declared that, “For certainly no legislation can be supposed
more wholesome and necessary in the founding of a free, self-governing
commonwealth, fit to take rank as one of the coordinate states of the
Union, than that which seeks to establish it on the basis of the idea of
the family, as consisting in and springing from the union for life of
one man and one woman in the holy estate of matrimony; the sure
foundation of all that is stable and noble in our civilization; the best
guarantee of that reverent morality which is the source of all
beneficent progress in social and political improvement…”
This seems a rather eloquent enunciation of a “legitimate purpose” in
the definition of marriage as between a man and a woman, one that
Aristotle would easily recognize. How could it not have occurred to
Justice Kennedy, who seemed completely unaware of it – to the point that
he dismisses its possible existence as a legitimate purpose?
Another interesting point is the repeated emphasis in
Windsor
on the authority of state law to define marriage. Indeed, no
constitutional scholar would dispute this authority. But does it include
the power to define it as
anything? The
Murphy ruling did not hold so. In
Reynolds v. United States
(1878), the Court also did not consider that it included polygamy
because, in part, “polygamy leads to the patriarchal principle… which,
when applied to large communities, fetters the people in stationary
despotism, while that principle cannot long exist in connection with
monogamy”.
Apparently, there is a relationship between the sort of marriage you
allow and the freedom you exercise. Was Justice Kennedy aware of this
consideration? Also, did not the prohibition of polygamy have “the
purpose and effect to disparage and to injure” those who practiced it?
Justice Kennedy said that DOMA’s message to “married” homosexuals and
lesbians was “that their marriage is less worthy than the marriages of
others" and imposed "a stigma upon all who enter into same-sex
marriages". If that was his main objection, when Justice Kennedy is
confronted with cases of polygamy or polyandry, as surely he will be if
he lives long enough, what criteria has he left in place to object to
them?
What DOMA did was refuse to
subsidize the redefinition of
marriage in those states that chose to redefine it by refusing Federal
benefits to same-sex couples. This, of course, was completely within the
legitimate power of Congress to do, and did not in any way
constitutionally impinge upon the power of the states. The
Windsor decision proposes the novel notion that definitions in state law
preempt definitions in Federal law that concern Federal law.
Since when?
The philosophical and moral nub of the matter was reached with
Justice Kennedy’s statement that, “What the State of New York treats as
alike the Federal law deems unlike by a law designed to injure the same
class the State seeks to protect”. In other words, are heterosexual
marriages
like or
unlike same-sex “marriages”? Are sodomitical “marriages”, as
Windsor
asserts, “equal with all other marriages”? And, therefore, was the
problem with DOMA that it strove to take what was equal and “make them
unequal”, and that its “principal purpose is to impose inequality”? Was
DOMA
imposing inequality or simply
recognizing it? Is sodomy
really the same as conjugal coition?
Obviously, the
Windsor ruling rests upon the extraordinary
proposition that marriage, as it has been understood throughout recorded
history, is the same as sodomitical “marriage”, which was unheard of
until the Netherlands introduced it in 2000.
To claim that homosexual marriage is equivalent to the family, the
sine qua non of
the enduring existence of any political order, is to deny the
foundations of society. To claim that a type of behavior on which the
polis
is founded is equivalent to a type of behavior inimical to a polity’s
foundation is to deny the principle of non-contradiction. Homosexuals
want their marriages to be recognized as a part of the social order, and
the Supreme Court has bestowed it.
However, it has been clear since at least Aristotle that the interest
of the state in marriage is in its essential role for the propagation
of society. Homosexual “marriages” play no such part in society, as they
are neither unitive nor procreative; so what would be the interest of
the state in recognizing them? Why is homosexual marriage morally or
politically worthy of institutional protection? The price for providing
it is to remove both the unitive and procreative aspects essential to
marriage, thus evacuating it of meaning and replacing it with “pretend”
marriage. So as not to hurt the feelings of homosexuals, let them
pretend they are married. In fact, let’s pretend with them. Even more,
we will make everyone pretend together. Then no one will be hurt.
Alas, the price for this embrace of unreality is too high. It is a
betrayal of the nuptial meaning of the body. Sodomy is an act opposed to
the good of marriage. How, then, can it be its foundation? Something
cannot be its opposite. But the Supreme Court has just said that it can,
and that the Federal government and we as taxpayers must agree.
“Thinking against nature”, wrote Irenaeus in
Against Heresies (180 AD), “you will become foolish. And if you persist you will fall into insanity”. QED.
- See more at: http://www.mercatornet.com/articles/view/whats_next_for_the_holy_estate_of_matrimony#sthash.atVI8E2J.dpuf
