EDITOR’S NOTE: This article appeared in the July 28, 2003, issue of National Review.
It’s time for conservatives to take their cue from the New Jersey Nets, or maybe from those hard-luck kids, the Boston Red Sox. Only a few weeks ago, the victors in Lawrence v. Texas–the Supreme Court case that struck down a Texas law against sodomy–popped open the champagne and broke out the brie. The “Gay Pride” marchers were prouder than ever. “Gay families” are this season’s media darlings. Moral traditionalists are shocked (though not awed). Most sit on the sidelines, dispirited, towels draped over their heads, trying to ignore the on-field celebration. The White House is quiet. Other Republican leaders are “unavailable for comment.”
As the Nets and the Red Sox will tell you: Today is the start of next season. Time to bury disappointment and anger. Time to get going again. And we can thank some members of the Court for telling us that next season may be the last, at least for marriage. It’s time to fire every single shot in our guns: Three justices, including the chief justice of the United States, say that the constitutional struts of marriage are gone. All it will take, evidently, is one more plaintiff, one more lawsuit. Could happen next term; more likely it is a couple of years off. What do we do? Is there time enough to do anything?
Let us take stock. Conservatives can no longer take comfort in DOMAs (defense-of-marriage acts), state laws affirming that marriage is only for a man and a woman. For there is nothing in Lawrence–in its turgid language or in its (putative) reasoning about dignity, liberty, and autonomy–that can be held at bay by statutes or state constitutions. The Court, say the dissenters, is ready to declare a constitutional right to same-sex marriage. And that will be the nation’s law–”anything in the Constitution or laws of any state to the contrary notwithstanding” (the words of the supremacy clause in Article VI).
Lawrence was decided 6-3. Conservatives cannot divert the Court by stacking it. There just isn’t time. The clock is running out for another reason, too: Same-sex marriage is rapidly being normalized, culturally and legally. Many same-sex couples already consider themselves married, and expect to be treated as such. In many jurisdictions they are–more or less, depending on how many concessions the law has made to them on adoption, survivors’ benefits, and the like. Canada says that they are married and Vermont that they are as good as married; Massachusetts is set to go the Canadian route.
For the time being, most Americans are convinced that Ralph cannot really marry Andrew, and that the law should not let them. This conviction is entirely consistent with the view (held by most Americans) that consenting adults should be left alone in their bedrooms. But Justice Scalia is surely right that “many Americans do not want [openly gay] persons . . . as partners in their business, as scoutmasters for their children . . . or as boarders in their home.” Or as the newlyweds next door.
The premise of the majority opinion in Lawrence, however, is that it is unfair to prevent homosexuals from benefiting from any of life’s valuable opportunities and pursuits–family relations, employment, education, and, yes, even marriage. Homosexuals’ free enjoyment of these goods is impeded by laws such as Texas had. This “discrimination both in the public and in the private spheres” (the majority’s words) is “invited” by criminalizing sodomy.
The logic of the majority goes like this: Said “discrimination” is unconstitutional (or, some kind of wrong the Court is authorized to eliminate); the Texas law contributes to this discrimination; therefore, the Texas law is unconstitutional. The Court overturned Bowers v. Hardwick because, it seems, doing so was thought to be instrumental to the full and equal participation of homosexuals in all walks of American life, including the family.
What then is to be done? Conservatives must hold the defensive lines–in state courts, in legislatures, in corporate America–as best they can. These efforts will come to naught, however, if the Court stays its course. Of the majority’s halfhearted denial that their decision in Lawrence commits them to upholding same-sex marriage, Justice Scalia warns: “Do not believe it.” The only way to rein in this runaway Court is to change the supreme positive law: the Constitution. The Federal Marriage Amendment (FMA) would impose upon willful justices–and every other public actor in the land–a definition of marriage as the union of one man and one woman. The amendment would leave legislatures free to extend some benefits to non-marital households. But courts could not.
In the looming fight over the FMA, conservatives should emphasize that marriage is a crucial common good and not a raw majoritarian preference that is binding upon the unwilling by dint of superior will. The Lawrence dissents do not help here. Neither Justice Scalia nor Justice Thomas overcame the winner-take-all understanding of marriage and the polity wherein majorities are entitled to impose their personal preferences in the matter.
The question now is how to persuade the American citizenry about what we should do. Will we persuade them to support the FMA by saying that it is “our” preference, which we are able to impose upon homosexuals? Is that a good enough reason? Is it a reason at all?
Marriage is not just “our” way, which we happen to be strong enough to impose upon “them.” Our civil law has always treated traditional marriage as reflecting objective truths about human sexuality, procreation, and the family. Some people deny these truths, just as some people deny that education and human life are goods. Our laws nonetheless presuppose that life and education are common goods to be supported and respected by everybody. In the same way, marriage depends for its health partly on sound laws that protect, maintain, and support it. Marriage is not a completely private matter. If it were, we would not be fighting this battle: Homosexuals want their relationships legally, that is, publicly, recognized as marriages because it matters.
The task of conservatives in the coming showdown is to justify, not marriage qua marriage (almost everyone, gay and straight, agrees that marriage is a good thing), but the characteristic at its core: its intrinsic gender complementarity–one man and one woman, period. Here again the dissents do not help. Justice Thomas says nothing about it. Justice Scalia seems to say that the law limits marriage to one man and one woman because of society’s “moral disapprobation of homosexual conduct” (and says that the Court’s majority deems that motive unconstitutional). What would be the reasoned basis for that “disapprobation”? Feelings of repulsion won’t do, since feelings are not reasons at all.
The answer is that homosexual acts are not and never can be marital. Sodomy has been discouraged, and sometimes prohibited, for basically the same reason that fornication and adultery have been: to protect marriage as the principle, or litmus line, of sexual morality. Sex is for marriage, and marriage is (not coincidentally) the morally legitimate setting for bringing children into the world.
This is not rocket science. In the 1960s, even as the Court was becoming complicit in the sexual revolution, it still regularly upheld the view that protecting marriage was a reasonable basis for civil law. Justice Harlan–no old fogey by the standards of the day–opined that civil law enforced the proper “societal context” for having and raising kids. He argued further that “laws forbidding adultery, fornication and homosexual practices . . . express the negative” of that proposition. In other words, law protects marriage by (among many other measures) discouraging non- and extra-marital sex–including “consensual” same-sex acts “having little or no direct impact on others.” Nowhere did Harlan say that a state must prohibit all immoral sex if it is to prohibit any. And so the rational basis of laws such as Texas had was to protect and promote marriage, if in a very limited way.
In Griswold v. Connecticut (1965), the decision that recognized married couples’ privacy regarding contraceptives, Harlan voted with the majority. Nevertheless, he believed that laws confining sexuality to marriage “form a pattern so deeply pressed into the substance of our social life that any constitutional doctrine [of privacy] must build upon that basis” (an opinion he articulated in a 1961 preview of Griswold). And the Court did. Griswold was all about marital privacy. Eisenstadt v. Baird opened up contraceptive availability to the unmarried in 1972, but also stated twice that the state could still treat extra- and non-marital sex as “evils” that could be criminalized. Roe was about unwanted pregnancy; it was not as such about either marriage or the single life. The Lawrence majority claimed these, and some other, cases as authority for their spectacular new right to sexual expression. In truth, before June 2003, the Supreme Court had never held that anyone has a right to engage in sex outside lawful marriage. Never.
The question facing the American public is this: What about marriage makes it impossible for a man to marry another man? For Scalia, the answer cannot be procreation, “since the sterile and the elderly are allowed to marry.” Well, what can man and woman do that man and man can never do? Anyone can see that two (or more) persons of the same sex can set up a household, and even acquire children whose diapers they change. But persons of the same sex can never form a mated pair, be the originators of human reproduction, engage in sexual acts open to new life, have children who are, literally, the embodiment of their–the couple’s–two-in-one-flesh union. Children can never be the “issue” (the classic legal term) of any same-sex act. The procreative orientation of marriage makes possible the awesome web of valuable relationships we call the family.
The marital union of man and woman provides, as nothing else can, the context (as Harlan put it) for the decent procreation and proper education of children; the civil law protects marriage largely for this purpose. “Proper” does not refer principally to children’s IQ scores, their grades, their emotional adjustment, or their peer relationships. Hawaii tried to prove in same-sex-marriage litigation several years ago that “gay” households handicapped kids–in strictly non-moral, mostly psychological ways–in school and in life. It was a disaster; even the state’s experts couldn’t show that it was so.
The proper rearing of children concerns their moral education by experience and example. The enduring reproductive union of a man and a woman establishes a world of valuable relationships that same-sex households can only mimic. In the marital household we find a nexus of interwoven relationships–husband and wife, mother and father, father and daughter, mother and son, brother and sister, etc.–and all the moral obligations and opportunities these relationships imply.
Although the spouses’ complementarity goes beyond mere biology, this biological substratum provides an essential bond between family members. By their marital acts, the couple expresses in a profound and special way their whole married life together: They are truly two-in-one-flesh. When their marital acts bear the fruit of children, these children (literally) issue from the marriage; they are the embodiment and thereby the extension into space and time of the parents’ union. Mother and father are, equally and exclusively, parents of all their children; all of the children are equally and wholly the offspring of the same parents. This family-wide equality and mutuality constitutes a unique natural bond, one that is the wellspring of love, duty, loyalty, and care-giving–the whole matrix of family life. Nothing can replace it.
No society’s idea of how a husband, or an eldest daughter, or a grandson should behave is beyond criticism. But being a wife and mother, for example, is not just about assuming a socially constructed role. It is a natural moral reality upon which culture–and law–rightly supervenes, and in so doing structures, specifies, reinforces, and protects an awesome opportunity to live a good life. Sound civil law protects and promotes all such natural, morally valuable opportunities for human flourishing, keeping them alive, intact, and available for subsequent generations.
–Gerard V. Bradley is professor of law at the University of Notre Dame.