Compelling New Book Shreds SCOTUS Marriage Decision

Ryan T. Anderson’s new book Truth Overruled achieves all the polemical aims that the accompanying promotional material claims that it does. It dissects the opinions and dissents of the Supreme Court justices who decided Obergefell v. Hodges; then the work explains how sexual orientation involves a more fundamental distinction than race. Anderson next offers compelling reasons why gay marriage threatens traditional marriage and society and tells us why redefining marriage as companionship cheapens this institution. Not least of all, he shows that same sex “marriage” “aggravates the problem of fatherlessness” and threatens the nuclear family.

I wish Anderson had also engaged the health hazards of homosexual relations, for example the much higher rate of anal cancer registered for homosexuals relative to heterosexuals, statistical figures that were published in the otherwise euphorically pro-gay New England Journal of Medicine (February 3, 2011). A German scientist and close friend of mine observed that one must read carefully between the lines, when medical conditions caused by homosexual activities are described without the cause given. That said, one should be grateful for what Anderson offers about the recently invented practice of gay “marriage.” His is a very substantial brief.

The stated opinions that came from Justices Roberts, Alito and Scalia in the SCOTUS decision, and which are quoted by Anderson, seem so self-evident that I can’t imagine how one could doubt the validity of their most memorable comments: “The Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians, and the Aztecs. Who do we think we are?” Or “With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.” The dissenting justices further point out that in every precedent about marriage cited in support of same-sex unions, the case invoked “assumed a relation involving opposite-sex partners.” By changing the institution’s reference point and then imposing their will on all the states, the majority justices were telling us that “it is the courts, not the people, who are responsible for ‘making new dimensions of freedom.’”

The most interesting side (for me) of the SCOTUS decision were the statements made by Justice Anthony Kennedy, writing for the majority. Kennedy’s reflections read like psycho-babble that might have come from a college freshmen under the influence. According to Kennedy, the Founders certainly meant well but by limiting marriage to heterosexual couples, were being “inconsistent” in terms of “the central meaning of the fundamental right to marry.” “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” Apparently the Founders did not understand how far the liberties that they were protecting actually extended but now we’re in luck, having a majority of sensitive justices on the highest court. It is they who, according to Kennedy are refining our moral and legal perspectives: “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Truth Overruled coverKennedy establishes his own criteria for an extended notion of marriage, which all the states are now required to accept unconditionally. It is based on “individual autonomy” expressing itself as “expression, intimacy and spirituality”; it is a two person-union that “responds to the universe that a lonely person might call out only to find one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.” The imposition of the acceptance of gay “marriage” on all of us will also have the effect of assuring to gays “the rights of childbearing, procreation, and education.” Perhaps, even more important, this institution is helping us affirm “that marriage is the keystone of the social order.”

Anderson, quoting Robert George and other critics, has no trouble making mincemeat of these assertions. For example, it is impossible to protect procreative rights in an institutionalized relation that cannot conceivably result in procreation. Procreation is something that same-sex “marriage” necessarily excludes, just as dropping out of high school is not a path toward obtaining a high school graduation diploma. Preserving “individual autonomy” has nothing to do with how marriage was understood up until a few years ago. “Intimacy” and being there for others, to use the trendy idiom, may accompany marriage but can exist in numerous other relations that have nothing to do with marriage. Sexual complementarity and physical procreation, which homosexual relations exclude, have been the identifying marks of marriage everywhere at every time.

Moreover, if a bare majority of the Supreme Court is now imposing its “insights” on the less enlightened Founders and on most state legislatures, why can’t a future court with deeper “insight” extend marriage to more than two autonomous individuals? Why should we not extend this institution to ten people, including grandparents, aunts and uncles and first and second cousins, all of whom should be given a chance for institutionalized “intimacy”? Not surprisingly, as Anderson shows, advocates of gay “marriage” have been exploring “new family forms,” like polyamory, which would “exemplify modern adult relationships,” according to New York magazine. By the way, I can’t figure out why some critics of gay “marriage” consider polygamy to be a dangerous step toward which same-sex “marriage” may be leading us. Polygamy involves a heterosexual union that can and does result in procreation and the creation of male and female models for the offspring.

As Anderson further argues, it is ludicrous to pretend that what is in fact subverting the social order was put in place precisely to rescue that order, from obstinate supporters of heterosexual unions only. Anderson dutifully goes through the reasons why Kennedy’s statement about upholding “the keystone of the social order” is pure gibberish. Why would one even imagine that elevating prolonged homosexual encounters to the same status as heterosexual unions, and indeed treating them as an object of veneration, will somehow save us from social disintegration? Perhaps Kennedy and his colleagues were in a hurry to be socially fashionable and pulled out the first phrases that came to mind in providing a rhetorical defense for judicial usurpation.

The most startling of Anderson’s revelations pertains to the effusive malice of some if not all who support the SCOTUS decision. Anderson cites prominent advocates of same-sex “marriage” such as the now deceased Ellen Willis and Victoria Brownworth who are urging a “revolt” against heterosexual marriage. One gay activist Michelangelo Signorile regards the forced institutionalization of gay marriage as a fortunate subversive action being promoted by gays and lesbians “to transform the notion of ‘family’ entirely.” Reading such passages, one has to wonder how Anthony Kennedy arrived at the weird idea that he was protecting the “keystone of the social order” by forcing same-sex “marriage” down the throats of his fellow-Americans.

My one criticism of Anderson’s otherwise carefully researched brief against the Supreme Court’s decision in Obergefell v. Hodges is that the author tries too hard to distinguish between the battle for same-sex “marriage” and the continuing war against “racism.” Although admittedly interracial marriage does fit the prescribed norms for heterosexual unions, showing complementarity of the sexes and laying the foundations for procreation and the raising of children with male and female role models, the crusade for gay “marriage” can nonetheless be seen as an extension of the feminist and civil rights struggles. Common to all of them was judicial and administrative social engineering, aiming at the goal of greater equality for groups that were regarded as disadvantaged. The multiple anti-discrimination laws that the Becket Foundation for Religious Freedom lists as now being applied to partners in gay “marriage” were already enacted to fight racism and sexism.

Anderson notes the provision in the expanded Title Seven of the 1964 Civil Rights Act that requires employers or work supervisors to prevent racially or sexually insensitive language in the workplace. Anderson is properly concerned that the same restraints are now being imposed by the government for “homophobic” speech. But one cannot be consistently critical of the present egalitarian crusade unleashed by Big Brother without at least questioning those judicial and administrative steps that led up to it. Long ago I described a neoconservative as someone who gets off the Train of Progress at a certain stop and then berates those who get off the same train earlier or later. This might apply equally to Anderson’s restricted view about how we got to where we are as a political society.

It is simply not true, pace Anderson, that laws forbidding racial or ethnic groups from intermarrying was a peculiarly American quirk that developed in the early eighteenth century. Such laws existed throughout human history, from the Indus River civilization established over four thousand years ago through the Hebrews and Greeks and, not least of all, among African tribes. I strongly suspect that exogamous marriages were prohibited by Chinese and Japanese as well, although here I do stand to be corrected. Contrary to what Anderson, relying on feminist, gay-rights activist historian Nancy Cott, tells us, it is highly doubtful that English Common Law and other medieval codes did not take ethnicity into account, at least implicitly, in limiting conjugal unions.

Aristocrats were viewed as inherently superior to the lower classes, and typically this assumption was accompanied by the belief that the nobility were of better stock than the hoi polloi, having the genetic advantage of being, for example, Normans rather than Saxons, or Franks rather than Celts. Since it was unlikely that Europeans would marry the dark-skinned natives who labored on colonial plantations, it was not necessary to pass law against intermarriage. But I’m not sure such a hypothetical prohibition would violate the Common Law. Far from laying a guilt trip on white Americans, as the far leftist Cott does, progressives should note that Americans ended up rethinking the prohibitions that others took for granted.

Anderson devotes considerable space in his otherwise succinct as well as compelling work to denouncing anti-miscegenation laws and talking up the Civil Rights movement of the 1960s and 1970s. He may be doing this, I suspect, to protect himself against the charge of right-wing extremism. He may also be hoping to detach racial minorities from the leftist (read Cultural Marxist) bloc in the recent disastrous SCOTUS decision by stressing that his stand is not meant as a criticism of America’s war against racism. Anderson is emphatically in favor of the latter while opposing the former, as a threat to religious liberty and traditional heterosexual marriage. And since blacks and Latinos have generally been less favorable to gay marriage than white liberals, it may still be possible, or so goes this thinking, to win them over to the idea of protecting traditional marriage.

Allow me to express my skepticism, if this is what Anderson has in mind. The vast majority of minority members who vote for politicians who push what readers of this website (including me) consider aberrant, are behaving, at least from their standpoint, consistently. They regard themselves as the outgroups in a white Christian, supposedly bourgeois, world and make common cause with others whom they see as struggling against the traditions of a society that they think once excluded them. Like the French anticlerical republican Georges Clemenceau, these allies of the cultural Left believe rightly or wrongly: “La révolution fait bloc.” Every move toward transforming our society from the cultural Left is part of a struggle in which designated minorities see themselves as having a vested interest. Anderson will not likely dissuade these groups by expressing his endorsement of Title Seven of the 1964 Civil Rights Act or by unfairly blaming Americans for coming up with the idea of anti-miscegenation laws. The political divide may be too great.

Editor’s note: The image above depicts Ryan Anderson outside the U.S. Supreme Court.

Paul E. Gottfried

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Paul E. Gottfried is the retired Horace Raffensperger Professor of Humanities at Elizabethtown College and a Guggenheim recipient. He is the author of numerous books, including The Search for Historical Meaning (2010) and Leo Strauss and the Conservative Movement in America (2011). His latest book is Fascism: The Career of a Concept (2015).

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