Russell Shaw Gay Marriage: Back to the Court

Feb 24, 2014

When the Supreme Court last June overturned a section of the Defense of Marriage Act saying that in the eyes of the federal government only man-woman unions count as marriages, the court said it wasn’t questioning the authority of the states to bar same-sex marriage if they wish. Thirty-three states now do.
    
Predictably, nonetheless, dozens of lawsuits in many parts of the country are currently underway in an effort to hand gay marriage advocates what they’ve wanted all along—a Supreme Court decision declaring that the Constitution gives same-sex couples a right to marry overriding state laws to the contrary.
   
One or more of these cases will reach the Supreme Court soon, perhaps as early as next year, and will set the stage—so the advocates hope—for such a ruling. Against this background, it’s more important than ever to have a realistic understanding of what this argument is really all about.
   
Consider, then, these words of a federal judge named Robert J. Shelby in his opinion last December striking down Utah’s refusal to recognize same-sex marriage: “The state’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in doing so, demean the dignity of these same-sex couples for no rational reason.”
   
That’s the case for gay marriage in a nutshell. It makes sense if—and only if—you accept the judge’s unstated assumption that unions which necessarily exclude goods and purposes that up to now have been held to be at the heart of marriage are “marriages” just the same. The goods and purposes in question are man-woman complementarity and openness to the begetting of children.
   
If ever there was a redefinition of marriage, it’s this. But so what? After all, doesn’t restricting marriage to man-woman couples deny gays and lesbians the right to marry and thus, as Judge Shelby says, demean their dignity?
   
No, it doesn’t. For one thing, since gay marriage is, in the opposed view, no marriage at all, the choice to enter into such a union can’t be called an exercise of the right to marry. As for demeaning gays and lesbians, same-sex couples are no more demeaned by telling them their radical redefinition of marriage doesn’t satisfy rational criteria for marriage than I would be demeaned by being told I can’t play second base for the Chicago Cubs.
   
At bottom, the gay marriage debate isn’t about whether a smallish number of people can enter into unions that must be recognized as marriages despite their failure to satisfy rational criteria for marriage. Rather, what’s happening here is a conflict of world views at a far deeper level.
   
One holds that the reality of marriage is a given of nature that can’t be changed by courts or legislatures or public opinion polls. The other holds marriage to be a product of social convention, subject to redefinition and re-configuration ad infinitum at the pleasure of those who have the power.  But if that’s how it is with marriage, someone might reasonably ask, what else? The answer, as we already know from the experience of legalized abortion and the continuing pressure for legalized euthanasia, extends to human life itself.
   
Come November, voters in Oregon may find two marriage-related initiatives on the ballot. One declares approval for same-sex marriage. The other offers protection against being penalized to people who refuse in conscience to cooperate with the new marriage regime. The first seems likely to pass. The fate of the second is problematical. And that’s the world we live in now.
 

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