Reactions by the Catholic bishops of the United States to the Supreme Court’s decision in Obergefell v. Hodges have been, in the main, robust and carefully thought through. Perhaps the best of the lot was the statement issued by Archbishop Joseph Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, on behalf of that entire body. Kurtz rightly deplored the decision as one not “rooted in the truth,” and said that, like similar wrongheaded decisions that contradicted the deep, moral structure of our humanity, Obergefell would, eventually, fall. A few bishops — the names will be withheld to protect the guilty — were less insightful as to the nature of the decision and less courageous in assaying its likely consequences: a legal and cultural assault on institutions and individuals who understand that the truth about marriage is built into us and is not susceptible to change by judicial legislation (or any other form of legislation, for that matter).
Beneath the statements of a few of the timid, acquiescent, and/or confused, I detected a mistaken reading of the church–state theory of the late John Courtney Murray, S.J., one of the intellectual architects of the Second Vatican Council’s Declaration on Religious Freedom and author of what remains today the best Catholic explication of the moral-cultural foundations of the old American democracy, We Hold These Truths: Catholic Reflections on the American Proposition. This false reading of Murray has to do, in part, with a misinterpretation of his advice to the bishops of his time, that they should not go to war, publicly, against the U.S. Supreme Court’s 1965 decision in Griswold v. Connecticut, which struck down a state statute forbidding the sale of contraceptives to married couples.
Some 21st-century Catholic progressives seem to have mistakenly concluded from this that Murray would have advised against the American hierarchy’s taking the strong and unyielding stance it has taken in the 42 years since Roe v. Wade imposed a virtually unchecked abortion license on the entire country. And those same mistaken souls seem to have concluded that Murray, today, would counsel against the kind of thoughtful yet blunt rejection of Obergefell articulated on behalf of the bishops’ conference by Archbishop Kurtz. Murray, they suggest, would not be a culture warrior in 2015.
Which is, in a word, rubbish.
Murray’s counsel to avoid a war against Griswold was based on his understanding of contraception as a question of marital chastity, which the state could not legally regulate without imposing an intolerable regime of bedroom reconnaissance. He may not have been aware of the abortifacient characteristics of certain contraceptives, which would almost certainly have changed his moral understanding of the legality of IUDs and similar devices. He could not have known that, after the “privacy” right concocted in Griswold was extended to everyone in the 1972 decision Eisenstadt v. Baird, the logic of the same faux-“right” would, through Griswold and Eisenstadt, beget the catastrophe of Roe v. Wade in 1973 — for Father Murray died in 1967.
But there is nothing in his position on the Church’s appropriate response to Griswold that would lead any thoughtful person to conclude that Murray would have counseled the bishops to take a soft approach to Roe. For he would have understood that the abortion question was not, despite the propaganda, a matter of sexual liberation and personal “choice”; he would have known that the abortion license defied first principles of justice that can be known by reason; and I daresay he would have found Justice Harry Blackmun’s argument in Roe specious on both constitutional and moral grounds. (As for Justice Anthony Kennedy’s notorious “sweet mystery of life” pronunciamento in Casey v. Planned Parenthood (1992), the decision that confirmed Roe, Murray, who could be very tart, would have had a field day shredding that pompous nonsense.)
So what, then, would Father Murray have said about our situation today? What would he have said about Obergefell, and about a post-Obergefell America?
Answering those questions is obviously a matter of speculation; informed speculation, I hope, but speculation nonetheless. Still, there is a lot of material in We Hold These Truths that bears on Obergefell and what Obergefell is likely to do to the American republic. And on this Fourth of July, perhaps not-quite-so-glorious as others in our history, it is worth taking a moment to tease those nuggets of truth out of Murray’s 55-year-old text.
The real reason the American experiment was in trouble in the 1950s was that the churches of the Protestant mainline were rapidly becoming the oldline on their way to becoming the sideline.
It helps to begin by recognizing that, in the midst of the seemingly placid and stable 1950s, Father Murray knew that the American democratic experiment was in trouble. There were the obvious challenges: an aggressive Soviet Union; the triumph of pragmatism in many universities; the eternal race question. But these were matters that could be seen, and dealt with, by those with the wit and gumption to do so. The real trouble was, as it were, subterranean, something beneath the surface of public life. The real reason the American experiment was in trouble was because the institutions that had sustained the moral-cultural consensus on which the experiment had been built — the churches of the Protestant mainline — were rapidly becoming the oldline on their way to becoming the sideline (as Richard John Neuhaus famously put it). And they were becoming the oldline en route to the sideline because they had abandoned, one by one and under the sway of an increasingly secularist liberalism, the moral truths on which the country had been founded: truths that found their deepest and strongest roots, not in the philosophy of John Locke, but in the Christian civilization of the Middle Ages.
What were those truths?
The consensus that sustained the American experiment included the truth that there are moral truths inscribed in the world and in us, truths that we can know by reason. Thus Jefferson, penning the Declaration we commemorate on Saturday, may have thought that he was acting as a simon-pure son of the Enlightenment by enunciating “self-evident” truths. In fact, in the long view of Western cultural and intellectual history, he was channeling his inner Aristotle, his inner Thomas Aquinas, and his inner Robert Bellarmine during those steamy summer days in Philadelphia in 1776.
The American consensus included the truth that society exists prior to the state, which meant that the state exists to serve society, not the other way around. Murray’s fondness for Anglo-American constitutionalism (which he carefully distinguished from Jacobinism and other Continental psychoses with grave political consequences) was influenced in no small part by his passionate commitment to limited, constitutionally constrained government — which in turn reflected his heroic intellectual efforts to disentangle his Church from the fondness for close altar-and-throne alignments that he regarded as a temporary aberration from the authentic Catholic political tradition (a claim vindicated, I might add, by the social doctrine of St. John Paul II). On this understanding, true government — government that had the moral authority to command, not simply the raw power to coerce — was was by definition limited government; a robust civil society was essential to the democratic health of the republic; and government should not usurp the proper functions of civil society.
The consensus beneath the experiment also included the truth, again medieval in origin, that there is an inherent sense of justice in the people, from which rightly ordered states derive a preference for creating legislative solutions to issues of public policy rather than deferring to the allegedly superior wisdom of kings — or courts (or Justice Kennedy, who can now intone “L’etat c’est moi” with far more warrant than Louis XIV).
And the consensus included the truth that “rights,” properly understood, did not constitute a free-floating faculty of choice that can attach itself to anything (“so long as no one else gets hurt”). Rather, “rights” are built in to us as immunities from coercive state power: inalienable liberties that enable us to fulfill our duties as individuals and citizens. Thus in Murray’s understanding of these things, the right of religious freedom is built in to us, and must be respected and protected by the state, so that we can fulfill our natural human duty to seek the truth and adhere to it. Similarly, the other First Amendment rights (free speech, freedom of assembly, petition) are built in to us so that we can fulfill our duties as citizens and make our appropriate contribution to the common good.
All of which would have inclined John Courtney Murray to take a very dim view of Obergefell v. Hodges, and would, I expect, have led him to urge the bishops of the United States, and indeed all Americans, to do everything in their power to see that this terribly mistaken decision does not stand.
Murray would also have had some things to say about why Obergefell was, in Archbishop Kurtz’s words, “wrong . . . profoundly unjust and immoral.”
Father Murray’s conviction about the limits of state power would have led him to conclude that there are things that the state simply cannot do because they are among the givens of the human condition: the Things As They Are.
Father Murray’s conviction about the limits of state power would have led him to conclude that there are things that the state simply cannot do because they are among the givens of the human condition: the Things As They Are. Thus the Supreme Court of the United States cannot rightly decide that two people of the same sex can “marry,” any more than it could rightly decide, in Dred Scott, that Americans of African descent were “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Just as Murray knew that Chief Justice Roger Brooke Taney was wrong in asserting the essential non-humanity of Americans of African descent, so Murray would know that the Supreme Court’s claim that two people of the same sex can contract a “marriage” is oxymoronic. He would also know that a Court that attempts to reinvent reality through law invites contempt for the law and for itself.
I don’t know whether Father Murray ever commented publicly on Brown v. Board of Education, but his Catholic understanding of prudence as the first of political virtues would have inclined him to applaud Chief Justice Earl Warren’s determination to craft a decision declaring segregation unconstitutional in such a way as to secure a unanimous verdict from his Court. By contrast, the Court majority in Obergefell seems to have been happy to render a 5–4 split decision on what the majority clearly thought (wrongly) was a parallel civil-rights case; and indeed four of the five justices in the majority offered no reasons of their own for signing on to Justice Kennedy’s decision (the unpersuasivenes of which guarantees that it will become a shooting gallery for serious constitutional scholars for decades to come).
Thus I suspect that Murray would have seen Obergefell for what it is: an instance of vast judicial overreach in aid of a social and political agenda, rather than a legitimate act of constitutional interpretation guided by the cool, dispassionate reason that ought to characterize judging. And as such, Murray would likely have thought, Obergefell has accelerated the decline of the old American democracy and the parallel American turn toward something resembling what political theorist J. R. Talmon famously called “totalitarian democracy:” a thin democratic veneer beneath which the people’s judgment is regularly voided, in this instance by judges in the legislative driver’s seat.
One of the building blocks of Father Murray’s theory of limited, constitutional government and democracy was the venerable Catholic notion of the res sacra in temporalibus: those “sacred things” in social life that are prior to the state, both chronologically and ontologically (that is, both in time and in what we might call the deep structures of reality). Among those “sacred things” were certain relationships, the integrity of which any just state was bound to respect and protect: the parent–child relationship, the doctor–patient relationship, the confessor–penitent (or counselor–client) relationship, and, of course, the husband–wife relationship. Understanding that the just state exists, in part, to protect these “pre-political” relationships reflects the natural order of things, which is family, society, state. For the natural family of father-mother-children is not something the state invented, although it is something the just state must acknowledge.
I think Murray would have agreed with Douglas Farrow, professor of religious studies at McGill, that, post-Obergefell, “it is [now] state, society, family, and in consequence natural or pre-political rights [that] have been voided.” Murray would also, I suggest, agree with Farrow’s conclusion: “The most crucial consequence of Obergefell is that marriage is no longer a pre-political institution at all, embodying and protecting fundamental natural rights connected to procreation and child-rearing, but is rather an exclusively political institution, embodying only state-dispensed rights and freedoms.” And, agreeing with that, Father Murray would likely raise a warning for his fellow-Americans: If the state can do this to marriage and the family, on what principled ground will the state refrain from redefining all of those other pre-political relationships to suit its fancy, which in this instance, and absurdly, means the fancy of five judges?
John Courtney Murray did not live to see the collapse of American marriage culture that is epidemic today. But acute observer of public affairs that he often was, he would have seen, today, that “marriage equality” as proclaimed by the Supreme Court in Obergefell is both a chimera and a distraction. It is a chimera because the Supreme Court cannot make real what is manifestly not real. And it is a distraction because the real “marriage inequality” in the 21st-century United States is not that trumpeted by the Human Rights Campaign but rather the inequality between two classes of Americans: the wealthy and well educated, who marry and prosper, and the poor, underprivileged, and marginalized, who don’t marry and don’t prosper.
And that suggests a few more things Father Murray would say to the bishops of today, and indeed to all his fellow Catholics and fellow Americans: All of these things, which are the first things of public life, are connected; rebuilding marriage culture is one of the best anti-poverty programs in which Catholics, and all people of reason and goodwill, can participate; and making a commitment to help give America a new birth of freedom — freedom tethered to truth and ordered to goodness — is the best birthday present we can give the United States on this Fourth of July.