Alan Wisdom & Jim Tonkowich
May 22, 2008
On May 15 the California Supreme Court “overturned the gay marriage ban,” according to news media reports. What the court really did was command a radical redefinition of marriage, the most basic institution of any society. It brought same-sex “marriage” to the largest state in the union and front and center into the presidential campaign.
The arrogance of this judicial fiat cannot be overstated.
The 4-3 decision directly overrules the will of the people of California expressed in a 2000 referendum, when 61.4 percent voted that “[o]nly a marriage between a man and a woman is valid or recognized in California.” The justices seem to have forgotten that they are merely interpreters of the law. Instead they styled themselves as Plato’s philosopher kings stooping to undo the will of those they deem less enlightened than they are.
As Heritage Foundation scholars Jennifer Marshall, Daniel Patrick Moloney, and Matthew Spalding wrote, the decision “is long on public policy preferences, and extremely short on law.”
According to E.J. Dionne writing in the Washington Post, Carol Corrigan, one of the dissenting justices, is a supporter of same-sex marriage. Nonetheless, she sees such judicial overreach as the breaking of the courts’ “covenant” with the people of California. According to Dionne, Corrigan:
…argued that in a democracy, “the people should be given a fair chance to set the pace of change without judicial interference.” She added: “If there is to be a new understanding of the meaning of marriage in California, it should develop among the people of our state and find its expression at the ballot box.”
God bless her!
Such decisions put the court and the rule of law in a compromised position. The U.S. Supreme Court squashed the will of the people and their democratically elected representatives in Roe v. Wade and it has poisoned American politics and policy dialogue for over thirty years. As the Wall Street Journal’s editorial about the California decision noted, “Judges invent wedge issues. Always have.” And they have again.
The decision also waves aside tradition, which has been called “the democracy of the dead.” Over thousands of years of history all around the world, no civilization thus far has treated same-sex relationships as the equivalent of marriage. Some civilizations have tolerated such relationships, but none so far has equated them with the union of man and woman. Yet the court overthrows all of this accumulated human experience in order to force California to conform its laws to the demands of a social movement that is barely one generation old.
Marginalizing the Many to Elevate the Few
The decision disregards the unanimous teaching of all major religions. Each religion has its own peculiar provisions governing marriage, but all recognize the same basic relationship, which pre-existed Judaism, Christianity, Islam, Hinduism, or Buddhism. All understand that marriage involves the union of the two complementary sexes in a sexual relationship that ordinarily serves as the locus for procreation and childrearing.
In fact the decision places mainstream followers of all major religions (and the vast majority of Californians) in the legal position of being regarded as bigots who are in opposition to state policy on a matter of fundamental human rights. The majority justices stressed that the view that “same-sex couples are in some respects second-class citizens who may, under the law, be treated differently from, and less favorably than, … opposite-sex couples” was “now emphatically rejected by this state.” They repeatedly compared the traditional understanding of marriage to racial prejudices that had been rejected in an earlier generation.
The implications of this line of thinking are clear and frightening. A small minority—gays and lesbians make up no more than three percent of the population—has been elevated as a specially protected class because of its professed “sexual orientation.” Anything that impinges on the interests of that class must be subjected to “strict scrutiny,” the court held. And just as that kind of “strict scrutiny” has (properly) driven almost all overt expressions of racism out of our public life, so now the same scrutiny will be turned (tyrannically) against the large numbers of religious people who see marriage as the union of one man and one woman.
The California justices promise that churches will not be forced to perform same-sex weddings. But they do not offer any protections against the more likely forms of pressure: that defenders of traditional marriage (like racists in an earlier day) will be shamed and driven off the airwaves and out of the public square, that public employees who hold such views will be disciplined or fired, that corporations will not want to risk hiring supervisors known to hold “bigoted” religious beliefs about marriage, that parachurch ministries with policies upholding marriage will find their tax exemptions threatened and their government relationships severed.
We have already seen this process advance in jurisdictions that treat same-sex couples as if they were married. The Roman Catholic Church has been driven out of the adoption business in Massachusetts and Great Britain because it prefers to place children with man-woman married couples. (So far, no gay groups have stepped in to fill the void left by the departing Catholics. And so children stranded in foster care suffer for this supposed victory of “human rights” for adults.) In Canada, provincial human rights commissions are busy prosecuting Christian broadcasters and schoolteachers for alleged “hate speech” against homosexuals.
Exalting the Autonomous Individual, Seeing No ‘Compelling State Interest’
The judicial arrogance also shows in the incredibly unthinking assertion that “the traditional and well-established definition of marriage cannot properly be viewed as a compelling state interest.” It is as though the justices were willfully ignoring the state’s crucial interest in the most basic institution of society and its unique ability to produce future citizens. Marriage is society’s way of affirming that every child needs and deserves the care of a mother and a father—not just any two persons, but the child’s own unique mother and father. Marriage is the socially recognized means by which, ordinarily, children obtain a mother and father who are committed to them and to one another for the long haul.
The social science data are overwhelming: no other relationship has demonstrated the same ability as marriage to nurture healthy, well-adjusted children who are prepared to become productive citizens. If favoring this kind of relationship above all others is not a compelling state interest, what is?
The California court decision reflects, and amplifies, an arrogant attitude that increasingly afflicts our society: the apotheosis of the autonomous individual. It treats marriage as if it were the right of an individual—an entirely private matter. The decision states:
These core substantive rights include, most fundamentally, the opportunity of an individual to establish—with the person with whom the individual has chosen to share his or her life—an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity accorded a union traditionally designated as marriage.
This passage prompted IRD Presbyterian Action Director Jim Berkley to muse on his blog:
What if the person has chosen his mother to marry? Or a ten-year-old? Or his daughter or granddaughter? What if the person one chooses is already married to someone else but would willingly add another spouse? What if many such individuals are chosen, rather than one? For that matter, on what grounds, using this logic, would just one spouse be deemed the proper number, if it is all about the fundamental opportunity and right to establish a family the way one chooses?
This decision is so arrogantly overreaching that the court appears to be saying, “Any of these arrangements is just fine with us.” Do the justices really believe that? We doubt it.
Marriage is an institution—comparable legally to a partnership or a corporation. Institutions have rules determining how many persons may be involved and how they relate to one another. Marriage, as an institution, necessarily involves two persons: one from each of the two complementary sexes. Anything that does not fit that definition is not marriage. It is a different sort of relationship, and it is properly treated in a different fashion.
In the real world marriage is not an act of the autonomous individual. To begin with, it takes two to marry. Beyond that people have never been able to marry anyone they wanted. You can’t marry a minor. You can’t marry your sister. You can’t marry someone who is incarcerated or otherwise unable to give free consent. And you can’t marry someone of the same sex.
There Is No ‘Gay Marriage Ban’; There’s a Definition of Marriage
The California court, in its arrogance, overlooked all these understandings that are so deeply embedded in our law and culture. It had the barest 4-3 majority, and that was enough to impose its will upon 36 million people. The majority apparently did not hesitate to use its one-vote margin to ride roughshod over logic, tradition, religion, and the popular will and brand everyone who disagrees a bigot.
Yet as Maggie Gallagher wrote in her article “Gov. Moonbeam’s Revenge” (a reference to former California governor Jerry Brown, who is now California’s attorney general):
…the history and interpretation of marriage laws make it clear that this idea that marriage has something to do with responsible procreation was not invented in order to discriminate against gay people, but has deep roots in our legal tradition in all 50 states and the United States.
There is not nor has there ever been a “ban” on gay marriage. The “ban” is an invention of homosexual advocates and the media. There is a definition of marriage into which some relationships fit and some do not.
The California court’s unflattering comparison of this fundamental definition to some earlier laws forbidding interracial marriage does not work. Anti-miscegenation laws were enacted with the specific intent of preventing African-Americans from integrating with white society. By contrast, the long-ago framers of our marriage statutes probably gave no thought at all to homosexuality. The exclusion of same-sex relationships from the category of marriage is merely a corollary—a corollary that previously did not even need to be stated—of our society’s understanding of what makes a marriage.
This decision may compel other states to bend to California’s will. Under the U.S. Constitution’s “good faith and credit” clause, other states could be pressed to recognize California (and Massachusetts) same-sex marriages—despite their contrary laws, despite the will of their voters. And it seems likely that, sooner or later, the same forces that are celebrating this California decision will find similar courts elsewhere that will force the other states to recognize those marriages.
Will Churches Speak Up?
Fortunately, Californians can lead us back out of the quicksand. On April 24, 2008, ProtectMarriage.com announced that it had collected many more than the 700,000 signatures required to put a constitutional amendment on the California ballot in November. The first state court to invent a right to same-sex marriage was in liberal Hawaii. The Hawaii voters slapped that court down. We can only hope, pray, and (if you’re a Californian) work for the same outcome in the Golden State.
Churches, too, should be raising their voices in this debate. They know what to say, if they have the courage to speak. They all have significant teachings on marriage, going back to the Genesis account of how “the two [man and woman] become one flesh.”
Just a couple of weeks ago, the United Methodist General Conference reaffirmed (again) “the sanctity of the marriage covenant that is expressed in love, mutual support, personal commitment, and shared fidelity between a man and a woman.” United Methodists also “support laws in civil society that define marriage as the union of one man and one woman.” Many other denominations have analogous teachings. The Presbyterian Church (U.S.A.) will have an opportunity at its June General Assembly to uphold its constitutional view of marriage as “a civil contract between a woman and a man.”
A week after the California decision, we have yet to hear a word from any national or California agencies of the United Methodist Church or the Presbyterian Church (U.S.A.). Indeed, among the ten largest U.S. Christian denominations, it appears that only the Roman Catholics and Southern Baptists have issued any official comment on the decision. (Both were opposed.) In the face of such judicial arrogance, the silence of so many church leaders is deafening.
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