Will Supreme Court Impose a Supreme Injustice on Marriage?

By June of this year, the U.S. Supreme Court, despite having a majority of Catholic justices, appears destined to legalize so-called “same-sex marriage” (SSM). This could be the ultimate victory of a long-term strategy to redefine marriage. Already in individual states which have redefined marriage, Christians have suffered for refusing to support or recognize SSM. Now, as the legal landscape for the entire country shifts, Catholics are faced with new challenges to living their faith in the public square.

The Court will consider claims that state laws and constitutional amendments defining marriage as between one man and one woman are discriminatory. More specifically, the Court is expected to rule whether these laws violate the equal protection clause of the 14th Amendment to the United States Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The crux of this issue, from a Catholic perspective, is: What is marriage? This has been very well addressed in recent books such as What Is Marriage? and Conjugal Union: What Marriage Is and Why It Matters, which explain the true nature of matrimony. Attempts by homosexual couples to marry defy the reality of what marriage is, and that is why the 14th Amendment does not really apply in this matter. Homosexuals are seeking entry to an institution which they are barred from entering, not by hate or prejudice, but by definition.

If I were a legal scholar, I would have more to say about the proper interpretation of the Constitution and the appropriate application of the 14th Amendment. As a sociologist, I am better placed to ponder some of the social questions arising from the accusations of bigotry and unfair discrimination lodged by SSM supporters against Christians who uphold traditional morality with regard to marriage and sodomy. To get a sense of the absurdity of “same-sex marriage,” let us consider other social groups that might make claims for equal protection.

A Thought Experiment (Satire Alert!)
How far can the 14th Amendment be pushed to protect various classes of people and defend against discrimination? Is it not reasonable that an individual should be free to do what he wants, particularly if it doesn’t harm anyone else? To be who he wants to be, and love who he wants to love? Shouldn’t the state not only protect rights but celebrate diversity?

Here are a few examples of how the 14th Amendment might be interpreted ad infinitum and ad nauseam:

There are many kinds of discrimination and exclusion which hinder individuals’ ability to participate fully in society. For instance, why exclude people of good will from participating in organizations to which they do not belong? Why must one be a woman to be Miss America? Why can’t a non-Anglican become an Anglican bishop? Must one be a citizen to vote? Must one pass the bar to practice law? Can’t a white man join the Black Panthers? Can’t a boy go to an all-girls school? We must fight exclusion, we must open doors—and hearts—in our campaign for a more progressive, inclusive society. Tear down these walls!

Why must one be a veteran, retiree, unemployed, or ill to become eligible for veteran’s, retirement, unemployment, or medical benefits? Isn’t it discriminatory to bar certain groups from social programs?

Our country has a problem with ageism. Why is it that only those aged 18 and over can vote—isn’t this discrimination against young people? Why is it you must be a certain age to obtain your driver’s license, drink alcohol, get married, and qualify for Social Security? Isn’t this discriminatory against all those not in these age categories?

Our country has a problem with speciesism. If a man can claim he is a woman, and be recognized as transgender by the state, why can’t a man claim he is a dog or other animal, if that is his identity?

Don’t the color blind suffer injustice from the widespread color coding of signs and information in our society? To create a just society, all traffic lights should be changed to a new system that respects the rights of the color blind.

Do I even need to point out how discriminatory America is against the left-handed? So many products and services are based on the assumption that everyone is right-handed. A whole category of millions, through no fault of their own, is ignored and treated as second-class citizens. They were born that way, and a just society would accommodate southpaws’ needs on an equal footing with the right-handed majority!

There is a well-known sexual minority that has endured stigma and oppression for hundreds of years: nudists. Shouldn’t everyone be free to express his sexuality, especially if it doesn’t hurt others? If a man wants to ride the bus, go to work, or engage in any other peaceful public activity while wearing no clothes, society should not only protect his rights but actively celebrate his freedom to be himself! Why not?

Transgender persons, and other gender non-conformists, are intolerably abused by the patriarchal structure of the English language. For millennia, gendered personal pronouns like “him” and “her,” “his” and “hers,” have kept people down and offended their identity. Especially those who are agender, androgyne, androgynous, gender fluid, gender questioning, gender variant, genderqueer, non-binary, pangender, and two-spirit (to borrow from Facebook’s list of 58 gender identities).

Finally, we may ask, what interest does the state have in preventing a man from marrying his pet, or even an inanimate object, such as his computer or sex doll? To paraphrase Hillary Clinton, every person should have the right to love whoever (or whatever) he wishes.

Seriously, Though
We have considered some tongue-in-cheek examples showing how the 14th Amendment could be applied ad absurdum to a range of groups and issues. But there are a few serious points to be made here:

Discrimination does exist, and the state has a role in fighting it. There are injustices in society that need to be rectified. But the tradition of marriage is not one of them.

Unjust discrimination is wrong, but just discrimination is necessary. “Discrimination” has become a dirty word. Many, in their righteous rhetoric of equality and respect, seem to believe that any discrimination at all is wrong. But one dictionary definition of discrimination is, “the power of making distinctions.” In order to get through the day, each one of us constantly makes decisions and weighs options—in other words, we discriminate. The waiter asks, “Which do you want for lunch today: pasta primavera or pasta Bolognese?” You answer, “Primavera, please.” Why did you discriminate against the Bolognese? What’s your problem—do you hate the people of the city of Bologna?!

In the same way, societies must make distinctions. Non-veterans are not eligible for veteran’s benefits. Men pay higher car insurance premiums than women. Recruits must be a certain height to become firefighters. Blind people are excluded from becoming ship captains. Is that really wrong?

And to get married, a couple must be one man and one woman—because that is the definition of what marriage is. A couple must fulfill certain other criteria, as well: as William Gairdner points out, only two people may be married to each other at one time, they must be competent and of age to consent, and they cannot be close blood relatives. Multiple partners, or partners of the same sex, are excluded from the institution of marriage not because of bigotry, but because of what marriage is. This is a reasonable distinction, just as a perfectly healthy man is not eligible for worker’s compensation and a three year old cannot vote.

Efforts to apply the 14th Amendment to SSM will lead to distortions and pathologies in society, because SSM is a violation of the reality of matrimony. The legislature could pass a law, or the President could issue an executive order, decreeing that the sea stop ebbing and flowing—but the tides would keep on rising and falling nonetheless, and this would be a legal abuse that would harmfully set society against reality. Inevitably, there will be terrible consequences, morally and practically, for contradicting the reality of marriage. They may appear ascendant today, but SSM advocates are on the wrong side of history.

Furthermore, if “equal protection” is so important, how is that working out for Christians? Justice Kennedy famously proclaimed in Planned Parenthood v. Casey (1992) that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Among other things, this phrase has been interpreted to defend the murder of innocents and to satisfy the demand that society accommodate men who claim to be women (and vice versa). Why are those who define existence and meaning based on the teachings of Jesus Christ left out in the legal cold?

Father Z recently warned that a Supreme Court ruling in favor of SSM will mean that “tolerance is over” in American society, and faithful Catholics must prepare for serious persecution. As Francis Cardinal George of Chicago said in 2010, “I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the Church has done so often in human history.”


Benjamin J. Vail, OFS, is a Franciscan tertiary and assistant professor of sociology at Masaryk University in Brno, Czech Republic.

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