During his confirmation hearing for the Supreme Court, Judge Robert Bork said one of his attractions to the court was that it would be an “intellectual feast.” There is certainly a feast going over the impending Supreme Court consideration of same-sex marriage. A mountain of friend-of-the-court briefs has landed in the hands of the Supreme Court, some of them utterly fascinating.
Two of the briefs are notably interesting, one from Professor Robert George of Princeton and his talented young collaborators Ryan T. Anderson of the Heritage Foundation and Sherif Girgis who is toiling on a law degree at Yale and a Ph.D in Philosophy at Princeton.
In a Harvard Law Review article, a book and now this brief, George, Ryan, and Girgis answer the question “what is marriage?” They describe two competing views; one they call “conjugal”, and the other “revisionist.” Allowing for the revisionist view “can cause corresponding social harms. It weakens the rational foundation (and hence social practice) of stabilizing marital norms on which social order depends: norms such as permanence, exclusivity, monogamy.”
George and his colleagues argue that marriage can only be “conjugal”, that is, a “comprehensive union joining spouses in body as well as in mind, it is begun by commitment and sealed by sexual intercourse. So completed in the acts by which new life is made, it is especially apt for and deepened by procreation and calls for that broad sharing uniquely fit for family life.” Such a comprehensive view of marriage is still available to sterile couples but not for homosexuals.
The authors explain that what they call the “revisionist” understanding of marriage “is essentially an emotional union, accompanied by any consensual activity. Such romantic unions are seen as valuable while the emotion lasts.” Men and women can have such “unions” just as same-sex couples can, “both involve intense emotional bonding, so both can (on this view) make a marriage. But comprehensive union is something only a man and woman can form.”
George says, “enacting same-sex marriage would not expand the institution of marriage” as proponents claim, but would redefine it. Such a redefinition would permanently harm the notion of marriage and sully the goods that come from marriage properly understood.
The second very interesting brief was submitted by Professor Gerard Bradley of Notre Dame Law School on behalf of Dr. Paul McHugh of Johns Hopkins University. Their brief is also about definitions, in this case the definition of homosexuality and sexual orientation.
McHugh is a remarkable man. For 26 years he headed the Johns Hopkins Department of Psychiatry and Behavioral Science. You may recall that this department was the place in America that initiated sex change operations under the notorious and now discredited Dr. John Money. One of McHugh’s first acts was to close down Money’s sex change unit.
Bradley and McHugh want to convince the court that homosexuals do not rise to the level of a “suspect class” deserving of “heighted scrutiny” protection. Those in support of traditional marriage believe the people of California in the Proposition 8 case and that Congress in the Defense of Marriage Act all had “rational” reasons for their claims. It is a lower and much easier claim to defend. Prop 8 and DOMA plaintiffs want to claim “suspect class” which would force the defendants to make the much harder case that the state has a “compelling interest” in maintaining man-woman marriage.
In order to become a suspect class, however, homosexuals have to make the case that there is a history of discrimination against them, that they are politically powerless to fight back, and that theirs is a “discrete group” with “immutable characteristics.” This is not easy.
Bradley and McHugh make the case abundantly and perhaps surprisingly that the plaintiffs fail on the questions of both discreteness and immutability.
The definition of a suspect class requires the group be “discrete” or distinct and definable. Race is an accepted category, for instance, but the Court has rejected age and poverty as suspect classes. Bradley and McHugh assert that sexual orientation fails, too, because it “may characterize points along a continuum of sexual attraction, sexual behavior, and sexual identity where individual categories are anything but distinct. They cite the Journal of Clinical Child and Adolescent Psychology, “There is currently no scientific or popular consensus…that definitely ‘qualify’ an individual as lesbian, gay, or bisexual.” The authors cite more than a dozen such quotations from equally authoritative sources.
In fact, the authors go on for 28 pages showing there is no agreed upon definition of sexual orientation, that sexual orientation—at least among those who claim some sort of same sex attraction—far from being immutable is in fact plastic. Citing a plethora of social science research, they show that degrees of homosexuality change consistently through the life of most who claim same-sex attraction, particularly among women.
The authors also demonstrate that there is not a single repeated scientific study showing that homosexuality is genetic.
Homosexual advocates and at least one homosexual judge have claimed that opposition to same-sex marriage can only be rooted in “animus” toward homosexuals. After the Prop 8 trial in California, homosexual advocates almost successfully captured the false narrative that the pro-marriage side did not even try to make the case for man-woman marriage.
There is an intellectual feast on this topic now on the dining table of Supreme Court Justices. They’ve even received a Scripture-heavy sermon in the guise of a legal brief from the crazies at the Westboro Baptist Church.
No one knows how the Court will go. We know they will not enshrine man-woman marriage in the Constitution. They may simply uphold Prop 8 and DOMA and the battle continues state-by-state. They could strike down Prop 8 and DOMA and stop there, too. But they could declare homosexual marriage the law of the land.
As the George brief makes clear, this would signal the end of any kind of marriage culture in the United States.