Thursday, June 27, 2013

Thoughts and round-up of thoughts on yesterday's Supreme Court decisions about marriage

No doubt you have already read or heard about the two decisions yesterday, United States V. Windsor (striking down that part of DOMA which defined "marriage" and "spouse" as used in federal statutes), and Hollingsworth v. Perry (dismissing the suit brought by citizens of California to protect their own Constitution from the refusal of elected officials to uphold the law, Proposition 8, as passed).  Bishop Nickless's response is apt, for starters:

The Supreme Court of the United States announced two important decisions about the future of marriage in our country. In a 5-4 decision in United States v. Windsor, the Supreme Court struck down part of the Defense of Marriage Act (DOMA) as unconstitutional. In a separate 5-4 decision in Hollingsworth v. Perry, the Court dismissed the case, finding that the plaintiffs lacked standing to bring the suit.

We are, of course, most disappointed at the failure of the Court to uphold the dignity of marriage in both cases. If not corrected, the Court’s implicit repudiation of the role of both state and federal governments to regulate the institution of marriage for the sake of children’s wellbeing (and eventual moral health as citizens) will have long-lasting deleterious effects on our already tattered social fabric.

Marriage is not just any sexual relationship between consenting adults, nor the bestowal of social recognition and approval on such a relationship by government or society. Marriage has a clear nature, prior to the creation of positive laws to regulate it. Marriage is one specific and unique relationship: namely, the complementary union of the whole life of one man and one woman, for the sake of begetting children, and the good of the husband and wife. It is, of its nature, permanent, exclusive, total, and fruitful. Good laws recognize and defend the unique nature of marriage and the special privileges of parents and children that result from it. Such laws are “good” precisely because they foster what is best for children, and thereby for all of society.

We of the Roman Catholic Church, along with all those of every faith and of no faith who also recognize the unique dignity and purpose of marriage, will continue to pray and work, peacefully but unrelentingly, for the preservation in law and society of what marriage really is, and for the protection of all children unable to protect themselves.

There is a reference here to how abortion and contraception contribute to the destruction of marriage, because they make the activity of marriage only about the spouses - indeed, only about the satisfaction of a very narrow appetite - and not about the end (namely children) to which that activity is ordered, of its nature.  So if that's all that marriage means, it is quite reasonable that two men, or two women, or any number of men and women in any combination, ought to be able to have legal recognition of the manner in which they choose, publicly and formally, to seek satisfaction for the sexual appetite.  This becomes a reductio ad absurdum, but in our already absurd society, no one hears.

But the problems with the two decisions are much deeper than the failure to recognize the innate nature of marriage as such, the failure to protect parents and children, or the rejection of the idea that government has a vested interest in the health of families because healthy families produce healthy children, on the whole, and thus foster the common good.  The worst aspects of these decisions are not problems of fact, but of vision: they are not decisions of law, but of ideology.  Quite apart from the issue of marriage itself - and it's no small thing that the Court has, at every level, refused to recognize that marriage has its own nature, prior to the law - there is another underlying issue of democratic process, and the activism of legislating, indeed of moralizing, from the bench.  Justice Scalia in his dissent in Windsor excoriates the majority for this:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

Moreover, the decisions themselves appear to be contradictory.  The rules seem to bend in one direction in one case, to allow a third party to have standing (despite the fact, as Scalia points out, that there is no disagreement and no remaining injury, following the original judgment), while bending in the opposite direction to refuse a third party to have standing (despite the fact that the adversarial relationship is clearly present, and the additional fact, on which our whole constitutional theory rests, that the people always retain sovereignty over their elected officials).  One scratches one's head trying to figure out how this is not merely arbitrary interpretation of law and precedents to achieve a predetermined outcome.

Finally, one of the best responses I've seen is this one, begging for more consistent teaching and practice of the faith by those most visible as leaders of the Church, namely, bishops and priests.  The same goes for us as deacons, to the extent that we too are visible leaders (albeit in a slightly different sense) and official representatives (in the very same sense) of the Church.  Permanent deacons have a special opportunity as married clergy (as nearly all of us are) to witness to the sanctity of marriage, to preach it in every sense (action, catechesis, and liturgical preaching), and to lead the Church's much-needed revival of the virtues of marriage.  Buckle up, brothers, we are being called to the front lines.

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