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Find the Morality Missing in the Case for Natural Marriage, or Lose

Building the Resistance to Same-Sex Marriage
(third in a series of articles)

By Robert R. Reilly

Why have the pro-natural family forces been losing in court? Intentionally or not, Judge Richard Posner explained the reason in a 7th Circuit Court ruling (Sept. 4, 2014), in which he decided against the Indiana and Wisconsin laws restricting marriage to a man and a woman:

“The state [Wisconsin] does not mention Justice Alito’s invocation [in the Windsor case] of a moral case against same-sex marriage, when he states in his dissent that ‘others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.’ [U.S. v. Windsor, 133 S.Ct. 2675, 2718 (2013).]

That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said, it mounts no moral arguments against same-sex marriage.” Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014) (emphasis added).

While Justice Alito recognizes that there is a moral argument for limiting marriage to heterosexuals, it was not only the State of Wisconsin that failed to make such a case. Neither have the States of Michigan, Kentucky, Ohio, or Tennessee in Obergefell, the decisive case now before the U.S. Supreme Court. I believe that this is one of the key reasons that the pro-natural family position has been losing in most of the cases thus far.

With the moral foundation missing, an air of unreality pervades the federal court system. Let us see how unreal by looking at a couple of examples.

When invalidating Oregon’s constitutional ban on same-sex marriage (May 19, 2014), U.S. District Judge Michael McShane wrote in his opinion,

“I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families. Families who we would expect our constitution to protect, if not exalt, in equal measure.” Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1147 (D. Or. 2014).

This is an extraordinary remark. What Judge McShane calls “gender and sexuality” is the only means by which families are generated. Since families come from parents, you cannot look past parents and still have a family — because there would be no family there. Homosexual acts cannot generate families; therefore, their “families” cannot be the same. If there are children present, we may be sure that both parents of the children are not present in that family. That is a lot to look past.

In Virginia, U.S. District Judge Arenda L. Wright Allen voided as unconstitutional that part of the Virginia state constitution and the Code of Virginia that define marriage as between one man and one woman. Ineptly, she began her decision on February 13, 2014, by confusing the basic texts of the American Founding (since corrected by her).

She apparently thought that the phrase “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous line in the Declaration of Independence. Judge Wright Allen appealed to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples who brought suit against Virginia.

Why did Virginia have laws against unnatural marriage in the first place? One would have to conclude from Judge Wright Allen that it was motivated by sheer prejudice and that only now has the light dawned upon the court that this is unfair. In fact, like Justice Anthony Kennedy in the Windsor decision, she asserted that there was a lack of “any rational basis” in Virginia’s exclusion of same-sex couples from marriage.

In fact, she inaccurately stated that, “These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Actually, they limit marriage much further than that — to exclude minors, the already married, immediate kin, and others. But why might this limitation exist in respect to same-sex couples? Judge Wright Allen never says, though she could have drawn upon several thousand years of Western and other civilizations to do so.

Here is part of what she neglected to say. In 1885, in Murphy v. Ramsey, which upheld the ban against polygamy in the Utah territory, The U.S. Supreme Court eloquently put forth the “legitimate purpose” of marriage:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.

However, Judge Wright Allen might believe that this is exactly what same-sex couples want in marriage, as well. Perhaps my favorite line from her ruling is that the “[homosexual persons] meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender.”

This is like saying that the only thing that prevents ten year olds from marrying is that they are too young. Or, the only thing that prevents a giraffe from being a donkey is the fact that it is a giraffe.

Homosexuals cannot be “married” — not for reasons having anything to do with heartless conservatives or with the law, but everything to do with how human beings are made. The ultimate, inbuilt end of sex is to make “one flesh,” which is what happens in marriage between a man and a woman.

Two becoming “one flesh” encompasses both the generative and unitive nature of sex. Only men and women are physically capable of becoming “one flesh.” Only a unitive act can be generative, and only a generative act can be unitive — in that only it makes two “one flesh.” That is why the unitive and procreative aspects of sex are essentially inseparable, and why they find the fulfilment only in the unique station of marriage.

For homosexual couples, the marital act is physically impossible — the pieces don’t fit — and the attempt to imitate it through sodomy is incapable in any circumstances of generating new life. One thing that same-sex couples all share is a unique disability to express either the unitive or procreative essence of conjugal relations. For these reasons, among many others, common law has held through the centuries that marriage can be only between a man and a woman.

Common law also held that if a marriage is not consummated, it could be declared to be a legal nullity. It is astonishing that Judge Wright Allen seemed to be unaware of these basic facts. In some states, entering into a marriage with the intent of never consummating it is considered marital fraud. Since same-sex marriages cannot be consummated, why aren’t they considered marital fraud?

One can expect such constitutional and moral illiteracy from the opponents of natural marriage, but what about from its defenders? For instance, in 2009, California’s Proposition 8, a constitutional amendment restricting marriage to one man and woman, was challenged in the U.S. District Court for the Northern District of California before then closeted homosexual District Judge Vaughn Walker. Since the State Attorney General and the Governor had refused to defend their State’s own constitution, other groups stepped in, hiring attorney Charles Cooper to plead their case.

Here is what Cooper argued to the U.S. Supreme Court in the Hollingsworth v. Perry case as a defense of California’s Proposition 8:

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of – of profound redefinition of a bedrock social institution would be.

That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

This is risibly weak. Wait for additional information? Cooper suggested that it was a lack of knowledge concerning the outcome of unnatural marriage that led to skepticism as to its soundness, rather than the moral knowledge that such an arrangement was against the “Laws of Nature and of Nature’s God,” and therefore could not possibly be advanced as a right. Since chastity is the moral principle of marriage, how could an unchaste act — such as sodomy or any other homosexual act — be the basis of marriage? Something cannot be its opposite.

Cooper studiously avoided saying anything like this. He was at pains to portray the issue of marriage as one of states’ rights. However in doing so, he assumed a moral equivalence of traditional marriage and same sex marriage. This left him in the position of Stephen A. Douglas in the Lincoln/Douglas debates. Douglas said that the slavery issue should be left to the states to decide, as there was nothing inherently right or wrong in slavery.

Popular sovereignty should reign. Cooper adopted an analogous position concerning marriage — it is a states’ rights issue. However, homosexual proponents have taken on themselves the mantle of civil rights; they claim (inappropriately) to be Lincoln in this debate. This left Cooper in a sure-to-lose position — taking, analogously, the slavery position in an antislavery fight. Does that sound too harsh?

Here is Cooper’s own statement, posted on National Review Online, 5/2/14, setting out his legal strategy:

The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges.

Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned — if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.

In other words, the lawyer hired to defend traditional marriage conceded that sodomitical marriage can be a positive good, so long as it is approved by a majority.



 

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