What’s Next for Marriage?
After the Supreme Court



Within the broad multi-decade drift of the shifting patterns of American sexual behaviors, attitudes, and laws, natural-law marriage (one man and one woman for life for the purpose of raising a family — the gift of Christianity to Western civilization) is receding. For most American children the experience of family, the building block of the nation and its most foundational level of government, has not been a good experience in the exercise of justice but one of deep disappointment, as the common good of the family has become subject to the private values and agendas of one or both of the parents. The majority, 55 percent, of American children suffer parental divorce or non-marriage by the time they reach age 17, and now the demographics of broken family governments are visible in the self-centered “privacy” interpretation of marriage, community, and laws by the Supreme Court.

The demographics of American sexual values and practices have now taken over the Supreme Court, and the American community is no longer based on raising the next generation of citizens and leaders justly and well, but on subjective and constantly changing interpretations of sex, reproduction, and family life. Our culture has changed massively and, with it, our government. The Supreme Court 41 years ago took sex outside of marriage in Eisenstadt v. Baird and accelerated the demise of the law of the family.

Now there are three options: Go with the flow and see our society fall apart; go on offense, by convincing the country to dedicate itself to growing the intact (sexually monogamous) family that worships God weekly (a necessary ingredient for the intactness); or carve out in law a totally protected space for the intact married family with children. Only one of these will lead to a stronger, more unified nation.

The big question of the moment is not whether the nation is up for it but whether religious believers (Catholics, Evangelicals, Orthodox Jews, and other people of faiths that embrace intact marriage) are up for the task that beckons. They have all been raised so comfortably and been so cosseted by a government that protected their freedoms that they may take a while to wake up. But the alarm has been ringing loudly of late: All three branches of government have been violating our freedoms in the last few years. We need to rise up, or become frogs in the gradually heating water, going comfortably toward the pleasure-domed demise of a once robust republic.

— Patrick F. Fagan is senior fellow and director of the Marriage and Religion Research Institute (MARRI) at the Family Research Center.

If you were hoping for decisions upholding DOMA or Proposition 8, it’s probably because you place great trust in the family and indeed all of civil society — in that vast arena between man and state which is center stage for the drama of human development. In that case, you never expected a court of law to do our work for us, to save our marriage culture. Your only question at 10 a.m. yesterday was whether it would leave us the space to do so, or block the way.

The answer was something in between. Five justices have purported to put us on notice. While deliberately coy on state marriage laws, they have decided that we the people — through overwhelming majorities of our representatives and a Democratic president — were wrong to enact DOMA.

Five justices, in other words, held that the federal government’s preference for traditional state definitions was wrong. Then are the states wrong to have those definitions themselves? Not one justice — zero out of nine — drew that implication. Not one justice has voted to command the states — or, through them, the “platoons” of civil society (in Burke’s happy phrase) —- to adopt his or her own view of what marriage is and why we have it. Yet they had the chance to do just that, in Perry.

So the justices have not fully invaded the public square on this issue, but they are at the gates. And that tells us what to do from here. 

The Windsor majority stopped short of where its (admittedly hazy) logic was leading, apparently because, as Scalia says in dissent, they doubted they could get away with it: too much judicial policy-making, too soon. That means the defense of conjugal marriage matters now more than ever. It won’t be long before new challenges come before the Court, citing the Windsor majority. Whether they succeed will depend on how vigorously the democratic debate described in Alito’s dissent is joined. 

Justice Alito frames this issue as a contest between two visions of marriage — what he calls the “conjugal” and “consent-based” views. He cites books in defense of each — Jonathan Rauch’s on the latter, and one by Ryan Anderson, Robby George, and me on the former. What Alito rightly says no one can cite to settle the contest between these two visions — each substantive, each controversial, each finding some support across different moral and religious systems — is the Constitution. But if supporters of the conjugal view are cowed into silence, it will be easy for Kennedy to fix the next case for the consent-based view, as if there had never been a serious controversy, and with as blunt a tool as his poorly reasoned Windsor opinion.

So our first task is to develop and multiply our reasoned defenses of the conjugal view as the truth about marriage, and to make plain our policy reasons for enacting it. That will make it more awkward for the justices to apply their faulty Windsor reasoning (brilliantly exposed by Scalia’s dissent) to a future challenge to state marriage laws. Only supporters of conjugal marriage can decide — by our words and actions starting now — whether the Court, when it returns to this issue, will find a policy dispute serious and lively enough to demand its deference.

But if it does, our work will have only begun. Notwithstanding Justice Kennedy’s libelous dismissals of half his compatriots, this debate has never been about targeting any group. Indeed, for conjugal-marriage supporters it is not, ultimately, about homosexuality at all. It is about marriage. The proposal to define marriage as nothing more specific than your top emotional bond is one way to undermine its stabilizing norms, so crucial for family life and all the common good. But it is just one way. Before same-sex anything was in discussion, society was already busy dismantling its own foundation, brick by brick, through policies like no-fault divorce, and through a thousand personal decisions to dishonor the norms of marriage that make it the kind of total union inherently apt for family life. Winning the legal battle against redefinition is only a condition of winning the political one. And winning the political one is only a condition (though a necessary one) for winning back the marriage culture.

Yesterday’s most important developments in that latter struggle did not happen at a marble courtroom in D.C., but in a million minds and hearts and households across the country, as people chose to honor, or not, the demanding ideals of marriage. But we are naïve to deny the law’s effect on the latter. That’s why the marble courtroom matters to marriage — and why we must keep up the ground fight until marriage is back on trial. 

— Sherif Girgis is a philosophy Ph.D. candidate at Princeton University and a J.D. candidate at Yale Law School, and a co-author of What Is Marriage? Man and Woman: A Defense.


Sign up for free NRO e-mails today:

NRO Polls on LockerDome

Subscribe to National Review