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Gay Marriage, Judicial Decree, and the End of Marriage in America

May 26th, 2008 | 4 min read

By Matthew Lee Anderson

I haven't written anything on the recent decision by the California Supreme Court to overturn the ban on homosexual marriage in large part because I haven't yet read the 121 page decision. Stuart Taylor's read it, though. And he's fired up:

First, the California court's 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task ... is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership ... but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

Taylor isn't exactly a right-wing conservative. He is a supporter of homosexual marriage who sees this sort of activism as having a net long-term negative impact on the cause of gay activists. He continues:

The California court's majority descended into especially slick sophistry when it suggested that the many gay-rights reforms that the state's elected branches had already adopted were not a reason to let the democratic process work but rather a mandate for judicial imposition of gay marriage. The message to voters in other states may be: If you give the judges an inch on gay rights, they will take a mile.

Also disingenuous was the majority's vague dismissal of the powerful argument by opponents of judicially imposed gay marriage that the made-up constitutional principle underlying the decision would also--if seriously applied--require the state to recognize polygamous and incestuous marriages among adults....

This is not to deny the importance to many gay couples and their children of being officially recognized as "married." They should be treated as married. But to decree this by judicial fiat has large costs to democratic governance. Judicial power to override the deeply felt values of popular majorities should be used sparingly, to enforce clear constitutional commands or redress great injustices, not deployed whenever the judges think they can improve on the work of the elected branches or accelerate progressive reforms already under way.

Anyone concerned about the rule of law in American society has reason to be concerned by this latest kerfuffle over homosexual marriage. But the decision underscores the real movement in American society, which is a movement away from an ontological understanding of relationships and toward a contractual understanding.  As Patrick Deneen observes:

To my mind, what's most striking about the Court's decision is the language of the inviolability of "individual liberty and personal autonomy." These are the legal and Constitutional grounds on which a decision about the basis of marriage are being grounded. On the basis of such grounds, can there really be marriage at all, at least in a form that is worthy of defense? Aren't we really talking about an advantaged tax and property arrangement, one that can and should be altered at the will and inclination of the individual's "liberty and autonomy"? It is really nothing other than the contractual partnership defended in Locke's Second Treatise, sans the children (or at least conceived by the couple in question). And doesn't it permit any possible form of coupling, including ones not limited to couples (e.g., polygamy, etc., between consenting adults?)...

In other words, the legal status of marriage is no longer based on the recognition of a deeper, metaphysical reality, but is instead a recognition only of the decisions of two autonomous individuals, who may at any point reverse their decision without penalty.  As Deneen concludes:

Would gay marriage proponents be willing to step up in defense of the elimination or serious truncation of no-fault divorce provisions, and in support of "covenant marriage" counseling, efforts to reduce sex before marriage, the legal discouragement of divorce, and more generally "the dying of the self" for the other against the grain of our time that valorizes "individual freedom and autonomy?" For that matter, would a vast number of heterosexuals? Until then, we are debating at the edges and missing the heart of the matter.

This is, I think, the basis for Joe's intriguing and provocative suggestion:

By adopting a form of "covenant marriage," gays and lesbians could lead the charge in restoring the sanctity of marital commitment. It would also be much more difficult for foes of same-sex civil marriage to justify excluding homosexuals if they would be willing to adopt such a proposal. The American people are becoming more receptive to the idea of civil union yet are hesitant to expand the definition of marriage. If the purpose of same-sex marriage is to recognize a lifelong commitment to one partner, then homosexual couples should lead the way by adopting this higher standard.

That, of course, will never happen.  But it is imperative for defendants of same-sex marriage to acknowledge that the war against homosexual marriage was lost at least fifty years ago, when no-fault divorce laws were instituted, if not several hundred years ago when John Locke's theory of autonomy became the new basis for Western Civilization.

(HT: Rod)

Matthew Lee Anderson

Matthew Lee Anderson is the Founder and Lead Writer of Mere Orthodoxy. He is the author of Earthen Vessels: Why Our Bodies Matter to our Faith and The End of Our Exploring: A Book about Questioning and the Confidence of Faith. Follow him on Twitter or on Facebook.