The Irrationality of the Court’s DOMA Decision

So-called same-sex marriage is not yet the law of the land, although in its U.S. v. Windsor case handed down on June 26, 2013, the U.S. Supreme Court nevertheless recognized it as truly a marriage in those jurisdictions where it has been legalized by some official action. How the high court could ever have legalized it in this fashion is hard to understand. For anyone who understands that a marriage is the faithful union of a man and a woman ordered to the possible procreation of children, this extraordinary decision of the Supreme Court makes no sense at all. We need to go back and examine the reasoning behind it—or rather, as we shall see, the lack of any sound reasoning behind it.

For Christians the case is even more problematic. Same-sex relationships lack all three of the classic elements of marriage famously defined by St. Augustine, namely: proles (children), fides (fidelity, or permanence), and sacramentum (the sacrament). But same-sex unions fail to qualify as marriages even on the natural level.

Nevertheless, the Supreme Court’s action invalidated a section of the 1996 federal Defense of Marriage Act (DOMA), which had defined marriage for all federal purposes as “only a legal union between one man and one woman as husband and wife.” The average person might once have thought that this was obvious, yet after it was enacted into a federal law, that same law was challenged because a number of states had meanwhile decided, by court order, by legislative action, or by referendum, that consensual intimate unions between two persons of the same sex were marriages.

Writing for the high court, and joined by four other justices making up a 5 to 4 majority opinion, Justice Anthony Kennedy concluded that, “DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution” (which forbids depriving any person of life, liberty, or property without due process of law).

Justice Kennedy believed himself able to reach this remarkable conclusion primarily because, over the last decade, a number of states, including especially New York in the case before the high court, had decided by positive legal action that male-female marital relationships were not the only ones that had to be considered marriages. Same-sex unions also had to be considered marriages in those states where they had been legally approved. Historically, the regulation (definition?) of marriage in the United States has belonged to the states and not to the federal government, and hence state actions establishing same-sex relationships as marriages had to be considered determinative. DOMA accordingly could not stand—although opposite-sex marriages alone remain legal in thirty-seven states, by constitutional amendment in most of them.

In the Windsor case, Justice Kennedy quotes a 1975 decision, Sosna v. Iowa, to establish that “regulation of domestic relations” is “an area that has long been regarded as a virtually exclusive province of the states.” Federal courts will not even hear divorce and custody cases, for example, and so what the states decide in the matter of marriage is what necessarily governs. DOMA was thus perhaps an anomaly in its attempt to regulate marriage as a federal matter. But the question of whether any state definition of marriage is permissible was not even raised. But the question of whether what a state decides a marriage is makes it one, however, was not even raised.

Another reason for invalidating DOMA’s restriction of marriage to opposite-sex couples, according to Justice Kennedy’s majority opinion, is what he held to be the federal law’s strong bias against, and moral disapproval of, homosexuality. In fact, his dicta on this subject dominate his opinion. Anyone imagining that moral judgments no longer figure in the high court’s decisions certainly fails to reckon with the moralistic censoriousness of this decision.

Since a true marriage requires complementary sexual organs on the part of the spouses making possible a physical union that can then result in the procreation of a child, the average person might well wonder how two persons of the same sex ever could be “married.” Justice Kennedy addresses this question, although how he answers it is something else again. “Marriage between a man and a woman,” he writes, “no doubt had been thought by most people as essential to the very definition of that term.” Indeed.

However, what has since come about is what Justice Kennedy calls “the beginning of a new perspective, a new insight…. Some states concluded that same-sex marriage” he continues, “ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other” (emphasis added throughout).

We need to take careful note of what Kennedy is asserting here. No proof is offered that same-sex unions actually do partake of the nature of true marriages (by means of complementarity of organs, ability to unite physically in a natural way, and potential to conceive). These unions are simply being called marriages. Justice Kennedy then further asserts, again with no arguments or proofs offered, that these so-called marriages should be given “recognition and validity in the law.” Finally, he candidly admits that this new supposed requirement of legally recognizing them arises from the mere “wish” of couples to “define themselves by their commitment to each other.” In other words, if they say they are married, then they are married.

That’s it! No other reason is offered to explain why these unions should be considered marriages. This is the “new perspective,” the “new insight,” spoken of by Justice Kennedy. Nothing more, apparently, is required for a union to be a marriage than that those entering into it should simply declare that it is a marriage. No other reasons or arguments are offered—or apparently believed necessary by the many people today whom polls show to have come to agree that same-sex relationships can indeed be considered marriages. Same-sex marriage has recently been legalized in the United Kingdom, for example, as was already the case in a number of other countries. And Justice Kennedy sees no reason to supply any other arguments or reasons for what really amounts to a radical redefinition of marriage.

He goes on to mention perhaps the main reason why the contemporary drive for same-sex marriage has been so successful. “The limitation of lawful marriage to heterosexual couples,” he writes, “which for centuries had been deemed to be both fundamental and necessary, came to be seen in New York and other states as unjust exclusion” (emphasis added), that is, as discrimination.

There is in contemporary society no greater wrong than “discrimination.” The mere suggestion of it ends arguments. Just as since the civil rights revolution of the 1960s, blacks in America can no longer be penalized by Jim Crow laws, so today it is thought that same-sex couples can no longer be denied the status and benefits of marriage. Many people today have actually come to believe this.

Justice Kennedy sees the whole thing as primarily a moral issue. For him DOMA’s denial of marital status to same-sex couples is nothing else but an “injury and indignity” for them, and a “deprivation of an essential part of the liberty protected by the Fifth Amendment.” The very purpose of enacting DOMA was supposedly “to disparage and to injure” (not simply to protect the traditional definition of marriage). Thus for him the passage of the law was motivated by improper and wrongful bias. He states that the law has “the purpose and effect of disapproval” of homosexuality. In proof of this, he cites the House Report issued at the time of DOMA’s passage in which “the stated purpose of the law was to promote ‘an interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.’”

For him this is what is immoral. He quotes an earlier 2003 Supreme Court decision, Lawrence v. Texas—written by none other than Justice Anthony Kennedy himself!—which legalized sodomy and according to which “private consensual intimacy between two adults may not be punished by the state.” In his view, denying same-sex couples the right to marry amounts to punishment of them, and hence cannot be maintained.

Thus, a formerly morally disapproved and disreputable intimate relationship between two persons of the same sex has now become transformed into a legal “marriage.” It is simply declared to be such, and the state now deems it “worthy of dignity in the community equal with all other marriages,” according to Justice Kennedy’s majority opinion. The court thus endorses and establishes a new understanding of marriage—unimaginable just a few short years ago. All the carefully reasoned arguments by the defenders of traditional marriage explaining what the institution truly is and what it entails are not just set aside; they are not even considered.

Nor should we be in any doubt that the U.S. Supreme Court in this case has effectively decided that same-sex unions are indeed marriages. It is true that the Windsor case applies only to those states that have legalized same-sex marriage by some positive legislative or judicial action or by referendum; but it is quite plain that a majority on the high court now believes that these unions are marriages, and so it is probably only a matter time before this conclusion will come to be applied generally.

In the meantime, the drive to achieve marriage “justice” and “equality” goes relentlessly on. No sooner was the Supreme Court decision handed down than lawsuits were filed in a number of states where the law continues to recognize only traditional marriages. The attorneys general of both Pennsylvania and New Mexico, taking their cues from the Obama Justice Department, announced their unwillingness to defend the traditional marriage laws that continue to obtain in their particular states; and in Ohio, for example, a federal judge recognized a same-sex marriage contracted in Maryland—on the grounds that Ohio recognizes other out-of-state marriages such as those between first cousins currently not permitted in Ohio Law.

At the federal level, the Department of Homeland Security quickly finalized new rules requiring that visa applications for a foreigner in a same-sex relationship must be treated in the same way as those involving a regular married couple. The Federal Election Commission, reversing its previous position, similarly ruled that legally married same-sex couples must be treated as married for purpose of campaign finance regulations. And within just a few days, Secretary of State John F. Kerry himself pompously announced that the State Department too would be giving visa applications from same-sex couples the same preferential consideration granted to truly married couples—for Kerry this constituted a great victory for “marriage equality.”  The Pentagon followed suit shortly afterwards, establishing the same policy for the Department of Defense. Then, at the end of August, the Treasury Department and the Internal Revenue Service announced that they too would treat legal same-sex couples the same as if they were married for federal tax purposes. Yet it is not at all clear that any of these federal agencies even had specific legal authority to make these rulings. Nevertheless they simply went ahead and did it anyway

Proponents of same-sex marriage desperately want what they call legal marriage equality, and they are not going to be deterred by any mere legal technicalities in achieving it. The new dispensation of legalized deviancy is thus being ushered in by what would seem to be a spate of conscious and deliberate lawlessness.

Those who may have imagined that this whole process was merely one of recognizing and according a “right” being denied to a certain class or “minority” have been and are gravely mistaken. It is not easy to see, in fact, how we can even recover from this unreal Supreme Court decision. How the high court could ever have decided that same-sex unions are marriages is even harder to understand than appeared at first sight.

Kenneth D. Whitehead


Kenneth D. Whitehead is a former career diplomat who served in Rome and the Middle East and as the chief of the Arabic Service of the Voice of America. For eight years he served as executive vice president of Catholics United for the Faith. He also served as a United States Assistant Secretary of Education during the Reagan Administration. He is the author of The Renewed Church: The Second Vatican Council’s Enduring Teaching about the Church (Sapientia Press, 2009) and, most recently, Affirming Religious Freedom: How Vatican Council II Developed the Church’s Teaching to Meet Today’s Needs (St. Paul’s, 2010).

  • Michael Paterson-Seymour

    The notion, entertained by its proponents, that SSM will produce a unisex institution of marriage, with identical rights for same-sex and opposite-sex couples is false in fact.

    Despite the recent efforts of the French National Assembly, a leading jurist has analysed the result of their labours as follows:

    “It is necessary, since the law of 19th May 2013 (2013-404) opening marriage to persons of the same sex, to distinguish two marriages

    1. The union, freely agreed to, of a man and a woman in order to found a family. Only this marriage between a man and a woman affects filiation (Title VII of Book I of the Civil Code) [This is a reference to Art 314 of the Civil Code, “The child conceived or born during the marriage has the husband for father”]

    2. The union, freely agreed to, between two persons of the same sex, which permits them, within the limits of the appreciation of the interests of the child by the administration and then the judge, to adopt (Title VIII of Book I of the Civil Code) the child of one of them, or a ward of the State or, subject to what is permitted by conventions between states, a foreign child.”

    Marriage equality, even in the hands of its supporters, reveals itself to be an illusion.“Naturam expellas furca, tamen usque recurret.”

    • smokes

      It’s a great cudgel to pound the mores of traditional Christianity, though. The condescending Justice Kennedy’s already called all of us bigots for disagreeing with his twisted dictates. His name belongs right next to Harry Blackmun’s now.

      • Adam__Baum

        And Taney and Holmes and Black or any other number of sociopaths and malefactors that managed to become SCOTUS “Justices”, and from whose pens flowed noxious decisions and doctrines.

        We need to remind ourselves that for all the pretense of scholarship, “the law” is not a field like physics or math, where a great insight or proof lies in wait.

        Rather the law is largely an accretion of pronouncements. In the words of Charles Evans Hughes “We are under a Constitution, but the Constitution is what the judges say it is.” (arrogant, isn’t it?)

        The “law school” is largely a modern contrivance, designed to put a veneer of erudition. They have degenerated into being indoctrination camps. The Bar Association is nothing but a guild of modern pharisees, assuring the enhancement of its members status and priviledge, under the guise of protecting the public. (As such, it’s very good at secon-guessing other professions, but rarely its own)

        It is a naive, seventh-grade view of the Courts that asserts judges to be wise, learned, public-spirited and objective. Black robes do nothing to remove the effects of original sin.

        There are great exposes on the conduct of the judiciary, two that come to mind are Mark Levin’s “Men in Black: How the Supreme Court Is Destroying America” (2006) and Max Boot’s “Out Of Order: Arrogance, Corruption, And Incompetence On The Bench” (1998).

        • smokes

          We need 10 year terms for federal judges, and elected state judges. Our “ruling elites” will never let it happen.

          The judgies have lost their appeal! No one trusts or believes them anymore.

          • Adam__Baum

            A ten year term might help, but it won’t change the intellectual predilections inculcated by elite law schools and enforced by the Bar Association.

            Too much crimson on the bench, and not enough wills and estates.

            • smokes

              True. No tyrants, judicial or otherwise, give up the power they steal from “the people” without a knock down brawl. Congressional defunding might be a good start, though! Let these judicial dictators send out their court marshals to seize assets to keep their “gig” going and pay the electric bill..

  • Bedarz Iliaci

    Political process is entirely unsuited to debate and resolve the foundational cultural questions; indeed, it presumes a certain consensus and it is exactly this consensus that defines a nation. Similarly, whether the country shall be communist or libertarian is not going to be rationally decided by courts or even an election. It usually takes a revolution to settle the point.

    Thus, an absence of rationality is not surprising.

  • smokes

    Judicial dictatorship is hollowing out America and the entire former Western Civilization.

    Unelected judgies are imposing the same devious dictates to destroy the individual and the family, here and in Europe. As a result, the courts have lost all faith in their decisions and have abandoned their key power….moral suasion. Therir’s is increasingly the rule of brute force. The worse is Roe vs. Wade, but we have others requiring educating the uneducable until age 16, EEO mandates, “busing”, the eradication of civil service lists, yhr LGBT fixation, and the hiring of cronies by federal judgies to oversee and impose their will. They extract the cost of their plantations on the victim group, of course. For example, in New York, the NYFD is being decimated by a federal judge until the number of appointees = the proportion of that group in the population. The city has to pay for the destruction of its public safety programs. Everyone’s having fun with these games and circuses! How long can this hollowed out structure called America stand as the executive and legislature join in the fun? …………………..I give it 2 years.

  • publiusnj

    The author writes that Mr. Kennedy deemed protection of heterosexual marriage “immoral.” We shouldn’t give so much credit to Kennedy’s verbal prestidigitation. Current US jurisprudence is based on amorality not morality. First, the First Amendement has been turned into a rallying cry to scour every law to eliminate any reference to the received Christian morality, then the growing absence of any moral considerations in our laws has been deemed a triumph of the Constitution. If the absence of moral considerations is a positive thing under the Constitution, then the addition of the alpha privataive to the word moral is necessary (a + moral = amoral). Thus, Kennedy struck down DOMA not because it was “immoral” but because it was “NOT amoral.”

  • jacobhalo

    Marriage should not be regulated by the state. Marriage, throughout history, has been a religious ceremony.

    • Michael Paterson-Seymour

      Jacobhalo wrote “Marriage, throughout history, has been a religious ceremony.”

      Well, no it hasn’t

      As Lord Stowell pointed out in Dalrymple v Dalrymple, “it is not unworthy of remark that amidst the manifold ritual provisions made by the Divine Lawgiver of the Jews for various offices and transactions of life there is no Ceremony prescribed for the celebration of marriage.” In that case, a paper, signed by both parties, “I hereby declare that Johanna Gordon is my lawful wife” and “And I hereby acknowledge John Dalrymple as my lawful husband” was held a good marriage.

      In 866 Pope Nicholas I wrote a letter to Boris I of Bulgaria. After setting out the rituals customary in Rome, including the bestowal of a ring, the giving of dowry and dower by father and husband, and priestly blessing, he explained that he was not saying that it was sinful (peccatum esse) to omit any of these customs, especially since some people could not afford them. “On this account,” Nicholas concluded, “according to the laws (leges), the consent of those whose union is arranged should be sufficient. If that alone is absent, all the other solemnities, even including coition, are in vain, as the great teacher John Chrysostom attests, who says: Not intercourse but will makes marriage” (Homilies on Matthew 32) [PL 119, no. 97, pp. 978–1016 at 980 ] It was the Council of Trent in 1563 that made a religious ceremony essential to validity.

      • Adam__Baum

        Had Jacob written “religious matter”, rather than a “religious ceremony”, as would be the more expected followup to his initial statement “Marriage should not be regulated by the state.”, then your response would not contradicted his statement, but supported it-since we have a Pope (the Church) addressing the state (a king). As for the quotation by John Chrysostom, that does not address any requirement for ceremony, but the fact that marriage was formed through will rather than intercourse.

        As we all know, Trent was convened part to deal with the rantings of Luther, who asserted that marriage was a mere civil matter, not a Sacrament and that it should be REGULATED by the state, rather than the Church.

        • Michael Paterson-Seymour


          The Council of Trent’s decree Tametsi provides, “Although it is not to be doubted, that clandestine marriages, made with the free consent of the contracting parties, are valid and true marriages, so long as the Church has not rendered them invalid; and consequently, that those persons are justly to be condemned, as the holy Synod doth condemn them with anathema, who deny that such marriages are true and valid… Those who shall attempt to contract marriage otherwise than in the presence of the parish priest, or of some other priest by permission of the said parish priest, or of the Ordinary, and in the presence of two or three witnesses; the holy Synod renders such wholly incapable of thus contracting and declares such contracts invalid and null, as by the present decree It invalidates and annuls them..”

          However, Tametsi only applied in those parishes in which it was promulgated. It was never promulgated in England, Scotland Norway, Sweden or Denmark, which continued to be governed by the old law until Ne Temere came into force in 1908.

          Scots law continued to follow the Pre-Tridentine law. Lord Stair says that “It is not every consent to the married state that makes matrimony, but consent de præsenti, not a promise de futuro matrimonio. Marriage itself consists, not in the promise, but in the present consent, whereby they accept each other as husband and wife; whether that be by words expressly, or tacitly, by marital cohabitation or acknowledgment, or by natural commixtion, where there hath been a promise or espousals preceding; for therein is presumed a conjugal consent de præsenti [Institutions of the Law of Scotland 1681 (B i tit 4 sect 6)] This remained the law until 1940 Hence the popularity of Gretna Green for eloping English couples.

  • abu assim golor

    There is no use using rational arguments in trying to explain so called homosexual “marriage” because it is based on irrationality and fanaticism. It is an aberration in history where logic is relegated to the trash bin and an obscene, illogical, unnatural law is being forced upon people in western society. Homosexual marriage is also DISCRIMINATORY in that it allows benefits to homosexual couples while denying benefits to people who may love their sister their mother their brother or a multitude of their friends.Why should two homosexuals be allowed to have health insurance for their “partner” for the sole reason they are performing homosexual acts while my sister is denied my health insurance even though I love my sister?(or whoever it may be) If homosexuals are allowed to marry then every other conceivable union must and should also be recognized and respected(if it isn’t then it’s “discrimination” and if it is then marriage can mean everything to anyone and it no longer has any meaning. If you analyze, even minimally so called homosexual “marriage” one realizes its absurdity and the special treatment being bestowed upon homosexuals. It’s time for logic and sanity to return and let marriage be what is has always been and always will be(no human law will ever alter the laws of nature) the union of a man and a woman.

  • ColdStanding

    Here is the rule of thumb by which the subsumed modernist mind parses moral quandaries: As if X were Y, with the “as if” being the important part.

  • Paul McGuire

    There is also now a challenge in New Jersey to the state’s lack of recognition of same-sex marriages. The New Jersey Supreme Court ruled in 2006 that the state must either provide marriage to same-sex couples or a separate designation that would give couples the same rights. In response, New Jersey implemented civil unions that were recognized by the state of New Jersey as equivalent to marriage. The problem now is that the federal government does not recognize members of a civil union as spouses, a designation required to receive federal benefits.

    They argue that because civil unions are no longer equivalent to marriage, and the state of New Jersey cannot force The Federal Government to recognize civil unions, New Jersey has no choice but to make marriage available to same-sex couples.

    • Adam__Baum

      In other words, back in the day when it was popular for equivacating politicians (but I repeat myself) to support marriage by advocating “civil unions”, those of us who suspected that it was an insidious, transitional, incremental step were right.

      • Pay

        It has always been about normalizing deviancy.

        • Adam__Baum


      • Michael Paterson-Seymour

        Yet in France, civil unions, the PACS [Le pacte civil de solidarité] has proved very popular with opposite-sex couples. In 2000, before their introduction, there were 350,000 marriages in France; in 2010, there were 250,000 marriages and 200,000 PACSs, very few of them involving same-sex couples. They have largely replaced the old certificat de concubinage notoire.

        This suggests that couples are seeking an alternative to marriage on the one hand and unregulated cohabitation on the other.

        I do not know what the American experience with civil unions has been.

        • Adam__Baum

          “This suggests that couples are seeking an alternative to marriage on the one hand and unregulated cohabitation on the other.”

          • Adam__Baum

            So what is the difference between a civil union and a civil marriage?

  • roxwyfe

    This ruling by the court is just another tug on the plug in the bathtub of sanity. It’s nearly loose now and soon everything once considered “normal” by most people will go swirling down the drain and idiocy, lunacy and lies will take its place. So sad 🙁

  • Vivianne

    And to state that heterosexuals who promote true marriage are motivated by “animus” is to make a judgmental call…not true at all! Most of the world has gone crazy or is poorly informed, and wants to take us down with it….Lord, save us all!

  • Pingback: What Puts the “Arch” in Archangel? -

  • Pingback: FRC Blog » The Social Conservative Review: October 17, 2013()

  • Pingback: FRC Blog » The Social Conservative Review: October 17, 2013()