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.

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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).

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