I am grateful for Harold Heie’s invitation to participate in this conversation. I do not know whether I am being pulled off the bench like a third-string quarterback or out of the bullpen like a star closer. (I’ll imagine it is the latter, though I suspect it is the former.) Either way, I hope not to besmirch the playing field that my predecessors in this exchange have graced with their able remarks.
Because I was invited to join this conversation after it started, and due to constraints of time and space, much of what follows only summarizes more extensive research and arguments that others and I have published elsewhere. I provide links to several of the extended versions.
The Leading Question
Like Eve Tushnet in the first month, I am compelled at the outset to challenge the boundaries of our leading question. Our host states two versions of it. One version is “whether allowing same-sex marriage is good public policy.” Whatever it is, who is not allowing it? To not give something an official status in law is not to ban it, nor is it to fail to allow it. As I’ve explained elsewhere, laws defining marriage according to their natural contours as a man-woman union never operated as a ban on same-sex relationships. Many, many individuals and religious associations celebrated what they called “same-sex marriage” without any criminal or civil liability or other sanction. The “same-sex marriage ban” was a rhetorical fabrication constructed to make marriage revisionism appear to be on the side of liberty despite its documented hostility to the natural rights of children (about which more below), religious liberty, and other fundamental freedoms.
The other version of the question is only slightly less loaded: “Given the pluralistic nature of American society, what stance should Christians take relative to public policy for or against same-sex marriage?” That seems to me something like asking whether, given American pluralism, Christians should oppose a policy that approves moving bodies staying at rest. The law of inertia will not change whatever public policies say. And the objective truth about inertia matters not just in theoretical, but also in practical inquiry. To allow cars to proceed without braking at red lights might feel liberating...
Our leading questions are like that question, with two differences that make them even more problematic. First, the cause of “same-sex marriage” has wrapped itself in the mantle of civil rights so that anyone who expresses support for natural marriage laws is often branded as a bigot, excluded from polite society and various scholarly journals and venues, and made to bear other costs. The Respectful Conversations project is a unique opportunity to show the world that we can achieve disagreement in good faith, and the previous entries in this series admirably avoid unpleasantness. Yet few issues in public discourse today are more likely to incite ad hominem than this month’s topic.
Second, the stakes concealed by a misleading issue statement are much higher when one is ignoring the natural laws of human sexuality and procreation than when one is ignoring the natural laws of physics. Writing traffic laws that defy the law of inertia causes car wrecks. Writing marriage laws that defy the natural rights of children to have a father and mother causes wrecked human beings. And, as we know, human beings are eternal beings.
The Chasm Between Us
Among other assumptions, the leading questions presuppose that there is such a thing as “same-sex marriage.” If it was banned by laws defining marriage as a man-woman union then it must have possessed an existent, definable reality before its recognition in law.
That has not been demonstrated. And the leading question does not invite its demonstration. Yet neither of my interlocutors chafes at its direction. Instead they add additional, problematic premises that we have neither space nor time to discuss and which move us even farther away from mutual understanding:
- a dichotomous choice between theonomy and pluralism (Stronks) that omits the central tradition of thought about law, to which so many great and intellectually virtuous Christian thinkers (and lesser, aspiring-to-be-intellectually-continent thinkers, such as I) have recently contributed and which since Thomas Aquinas has cultivated a non-paternalistic, perfectionist pluralism that avoids the excesses of both legalism and moral pluralism (Pelz leaves space for this tradition in his essay);
- a premise that the Obergefell majority’s opinion obligates some non-official citizens to act as if marriage is something other than a man-woman union (Pelz) which conflicts with a tradition stretching from Augustine to Martin Luther King Jr. and beyond that stands firm in the conviction that a positive law contrary to the natural law is unjust, and is, in the important sense of its efficacy to obligate, not law;
- a presupposition that a change in law can make a social phenomenon that was not—“same-sex marriage”—into something that is (Stronks and Pelz), which stands in considerable tension with the strengthening consensus among social scientists and public figures on the left and right that children flourish when raised by a married mother and father, that they do best when raised by their own biological mother and father, and that natural marriage is sui generis in this regard (among others);
- an unstated assumption (Stronks and Pelz) that marriage will retain its norms—monogamy (two people), fidelity (to each other only), non-consanguinity (not close blood relations), permanence (for life)—without the foundational norm that renders those norms rational—conjugality (man-woman union)—after some of the best contemporary thinkers on both sides of the question have argued (persuasively, it seems to me) that the redefinition of marriage logically entails the elimination of those norms (see here, here, here, and here);
- the unexplained assertion (Pelz), “Granting same-sex couples the fundamental right to marry in the eyes of the state allow gays and lesbians to enter into public life as free individuals”;
- the suggestion that owners of a bakery in Oregon denied service to a lesbian couple qua lesbians (Pelz), contrary to the facts of the case;
- the premise (Pelz) that the legal obligation of state officials to “follow the law” necessarily entails an obligation to communicate what they understand to be a falsehood about marriage, which is contestable; and
- a premise (Stronks) that the majority opinion in Obergefell v. Hodges is law though she rightly acknowledges that the majority’s opinion “was not a legal argument.”
Any one of those notions could be the subject of its own respectful conversation and each is problematic. The last, for example, rests upon a collapse of the distinction between law and judgment, so central to Hamilton’s argument in Federalist 78 for ratification of the federal judicial power. Stronks paraphrases Hamilton: “that the Court is the least dangerous branch of government because it has neither the power of the purse nor the power of the sword.” But Hamilton went on in the same sentence to explain more comprehensively that the judiciary “can take no active resolution whatever. It may truly be said to have neither FORCE [executive power] nor WILL [law-making power], but merely judgment.” Judgment follows law.
So much for that. Perhaps the most troubling aspect of this most unusual moment in American history is the extent to which courts inventing “same-sex marriage” (without explaining or even defining it) have been willing—eager—to mischaracterize the law, flout clear law that cannot be mischaracterized, misrepresent and ignore the facts of the cases actually before them and invent findings that are non-factual, violate basic canons of reason and interpretation and make up new law instead, and generally act as laws unto themselves.
This lawlessness is not unprecedented. As Chief Justice Roberts observed in his Obergefell dissent, the federal judiciary acted lawlessly during the Dred Scott v. Sandford and Lochner v. New York eras. No one now rests claims of legal obligation on those majority opinions. Abraham Lincoln deserves much credit for this. In his First Inaugural Address (and elsewhere), directing his attention to the Dred Scott ruling he emphatically refuted the notion that the Constitution means what the Court says it means in any given decision. Today, the Court’s assertion of judicial supremacy is contested by a growing number of eminent scholars on both the left (eg, Tushnet and Waldron) and the right (eg, Meese and George) (see, eg, this one, this one, this one, this one, this one, this one, this one, this one, this one, this one, this one, this one, this one, this one, and most directly on point, this group (of which I am a member).)
Bridging the Chasm: What Marriage Is
Those are other conversations. And unlike my interlocutors, I have only one bite at this apple. In approximately 3000 words I cannot hope to bridge the chasm that obviously lies between us. It has taken me a third of my allotted space just to survey that chasm.
In the space remaining, let us simplify. The question for those who believe there is such a thing as “same-sex marriage” is simply this: What is marriage?
That is itself a vast question. (To get a sense of it I recommend this book, this book, and this book.) To reach as far as I can across this chasm, I’ll restate the fundamental question more modestly: If marriage is not a man-woman union then what else could it possibly consist of? A comprehensive definition of the term, complete with limiting principles and elements and exceptions rationally grounded in those principles, would enable my interlocutors to make an argument for the redefinition of marriage (something they have not attempted). But given that we are still in the early days of this social experiment, so unprecedented in human history, perhaps it is more realistic to ask our friends who support the experiment only to lay the groundwork for the scaffolding on which the basic elements of an argument could be constructed. I would be happy to see Stronks and Pelz offer a focal instance of marriage, or identify the essential characteristics of marriage and distinguish them from peripheral and non-essential traits.
For an argument that justice requires “same-sex marriage,” “same-sex marriage” must first be shown to be a plausible idea. And for “same-sex marriage” to be a plausible idea, marriage must essentially consist only of those features that same-sex intimacy and real marriage have in common, such as adult companionship, romance, and sexual gratification. Its essence cannot include the connection between sex and procreation. Nor can the marriage right be grounded in the teleology of the human sexual organs, or the basic good of conjugal union, or the natural duties that parents owe to their biological children.
Yet those features of human nature and natural law are precisely what marriage has always consisted of in its essence. In particular, as I have explained in some detail elsewhere, the fundamental right of marriage is necessarily and essentially grounded in the natural duties that mother and father owe to their children and the corresponding rights of children to have legal connections to, and support from, their own mother and father. Those jural relations, being grounded in nature and established since before ancient memory, are pre-political and pre-legal—fundamental rights and duties.
This is our long-standing fundamental rights jurisprudence, undisturbed throughout the history of Anglo-American law and always affirmed by the U.S. Supreme Court, until just yesterday. Apart from the shameful period of antebellum jurisprudence that made states’ positive laws completely sovereign over domestic relations, the Court was unwavering that the natural family’s sanctity is located within the freedom to “marry and reproduce,” which is grounded in intrinsic human nature, not state law, and “is older than the Bill of Rights.” Smith v. Organization of Foster Families for Equality and Reform. (See also Reynolds v. United States, Meyer v. Nebraska, Pierce v. Society of Sisters, Loving v. Virginia, Moore v. City of East Cleveland.)
The legal norms of marriage have always included the moral norms of natural law not because American evangelical Protestant Christians said so but because they are natural rights and duties arising from a biological reality: Sex between a man and woman has consequences, namely offspring. Marriage is pre-political and fundamental, existing in all known civilizations as a man-woman institution to link fathers and mothers to their children by binding them to each other for life.
Marriage exists in law as a solution to a very practical problem, a problem exacerbated by the redefinition of marriage that Stronks and Pelz support. (It is not just a religious institution and a moral institution, though Stronks’ and Pelz’s proposals pose existential threats to those facets of marriage, too). This problem has been on display since the beginning of this experiment in 2003. Consider the dissent of Massachusetts Supreme Judicial Court Justice Cordy in the first decision to redefine marriage, which I discuss in this essay,
Cordy explained the problem this way:
Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child.
The design given to us by the laws of nature and nature’s God—real, man-woman marriage—is the only known solution to this problem. And Justice Cordy warned:
The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.
We are witnessing that social chaos in many of America’s cities today, including my adopted hometown of Montgomery, Alabama. Here, more than two-thirds of children are born out of wedlock and are therefore at elevated risk of all the well-known negative outcomes—poverty, lack of education, unemployment, incarceration, sexual abuse, drug abuse, depression, and much else. Same-sex couples did not create that mess. But to create equality between marriage and “same-sex marriage” would require us to break the remaining normative bonds of the only institution capable of fixing the problem.
Do Stronks and Pelz have another solution to offer? I am sure that they share my concern for the rights and well-being of children. I take it that we disagree about the nature of those rights and the best means to promote children’s well-being.
The Elimination of Marital Norms
If Stronks and Pelz intend to proffer the norms of marriage as a solution then they need to offer new justifications for those norms grounded in their new, as-yet unexplained idea of what marriage is. By eliminating the predicate of natural marriage from law, their position eliminates the rationale of the norms of natural marriage. They cannot help themselves to what they wish to abrogate.
“Same-sex marriage” is parasitic on real marriage, and “marriage equality” is fatal to the host. To make “same-sex marriage” equal to marriage in law would require undermining the rights of natural parents and children, and would entail the elimination of the legal incidents of natural parentage. In sum, to make same-sex commitment the same as marriage in law would require eliminating all of the essential features of marriage in law that secure the right of each child to be connected to her mother and her father.
This is not just a theoretical problem; it affects human beings. Every child has both a mother and a father and children are most likely to flourish when raised by their own mother and father. We cannot re-write the laws of human nature any more than we can re-write the law of inertia. By flouting the natural law we only harm ourselves.
In this light, I think it is telling that no state has yet made marriage the same as “same-sex marriage” in law. Indeed, full equality between marriage and “same-sex marriage” does not exist even in states such as Massachusetts and New York that began experimenting with marriage redefinition years ago. Those states and others maintain three distinct institutions with different incidents, presumptions, rights, and duties attached to them—(1) marriage, (2) man-man “marriage,” and (3) woman-woman “marriage.”
I have examined this phenomenon in a scholarly article and in a shorter essay. Consider one example. Massachusetts retains the presumption of paternity, though the courts have made a hash of it while trying to shoe-horn it into relationships where it makes no sense. It can never apply to a man-man “marriage,” and it cannot apply to a woman-woman “marriage” without the biological father’s consent, nor without permanently eliminating the office of father in the child’s life, thus destroying the only two purposes of the presumption.
None of this dissuades proponents of “same-sex marriage” from trying to eliminate legal connections between each child and his or her biological father and mother. Sexual-identity activists are busy pressing that agenda through the courts as I write this. And it is true that a woman-woman marriage can be made to mimic a real marriage by recasting the presumption of paternity as a “presumption of parentage.” But observe what such mimicry does to parental and marital norms. It eliminates the biological father’s parental rights without preserving the fiction of marital fidelity.
In short, same-sex “marriage” cannot be made the same as natural marriage in law without either eliminating the presumption of paternity or so radically altering it that it no longer serves its purpose. That is just one example. Other differences between natural marriage and “same-sex marriage” persist throughout the law despite the overwhelming campaign by America’s most powerful elites for equality.
So, which institution is on the wrong side of history? The history of the effort to redefine marriage has not yet been written. And the rights of children are holding on (for now) against the barrage though they have the active defense of only of a few, and the silent support of half the American people.
The chaos of fatherlessness is just one of the many harms that we perpetuate by eliminating marital norms from our laws. Many more harms are being documented on a near-daily basis. The next frontiers, already being pushed, are a constitutional right to polygamy and a right for man-man couples to rent wombs from surrogate mothers, two practices that are known to exploit women. The redefinition of marriage has already been used to force Catholic Charities to stop providing adoptions services, imposed the spectre of legal action on the Sisters of St. Joseph of Boston for running a parochial school according to their convictions, caused what was to be the first Christian law school in Canada at Trinity Western University to go to court to vindicate its right to exist, forced Christian student groups off university campuses, and cost accomplished people of faith and moral convictions their hard-earned reputations and careers, including the distinguished former fire chief of Atlanta, Kelvin Cochran.
There are peaceful solutions to these controversies (eg, this one and this one), but they will not be achieved until marriage revisionists acknowledge that those of us who continue to testify about the distinct value of natural marriage have sound reasons for doing so, not because we are bigots (or “cherry-picking which sins should be restricted by government,” as Stronks speculates). Pelz correctly acknowledges that many of us act in good-faith obedience to conscience and not out of enmity. That is a promising starting place for a respectful conversation.
The Honor of Rebuilding and Defending Marriage
To observe that we should aspire to the courageous witness of Catholic Charities, the Sisters of St. Joseph, and Kelvin Cochran is not to disparage the virtue of my interlocutors. I have kept my contribution to this discussion at the level of reasons rather than sub-rational motivations. I do not know whether those who disagree with me are angry, as Stronks assumes of those who object to the Obergefell ruling, or anxious, as Pelz assumes of unnamed culture warriors, and I do not intend to speculate.
Yet I continue to think that we—all Americans, but especially Christians—have a responsibility to rebuild our broken marriage culture and defend the laws that protect children, rather than encouraging the elimination of natural marriage’s remaining vestiges.
And what an honor we have to live in the one moment in human history when we have the opportunity to defend and rebuild—like Nehemiah simultaneously rebuilding the walls of Jerusalem and defending her from her enemies—the most foundational institution in all human civilizations!