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The Supreme Court’s Embrace of Unreality

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Robert R. Reilly - published on 07/01/13 - updated on 06/08/17

That bridge from “lawful conduct” to “lawful status”, conferring equal dignity upon same-sex marriage, had been there to cross ever since Justice Kennedy lifted the starting gate in Lawrence. Once he and his confrères had found a constitutional right to sodomy, there was almost no way to stop enshrining the act as the basis for “marriage”. All the preceding judicial groundwork is brought to fruition here, though it leaves one step yet remaining – to declare unconstitutional all remaining state laws that restrict marriage to a man and a woman.

In his dissent, Justice Antonin Scalia predicted that this will be the next shoe to drop, just as he predicted this decision in his Lawrence dissent. In fact, he brilliantly illustrates how this will happen by taking several paragraphs of the Windsor decision and simply substituting the words “this state law” for “DOMA”. Voilà, there is the case ready-made for voiding all state prohibitions of same-sex marriage. He also stated that:

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the “personhood and dignity” of same sex couples”.

In Windsor, we see nearly complete the results of the denial of marriage as a fundamental institution natural to man, and the redefinition of it as an artificial construction, à la Jean-Jacques Rousseau, that can be remolded to his will and whim. "The Federal statute is invalid,” Kennedy wrote, “for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity".

If marriage is an artificial fabrication, Justice Kennedy is right. The state can redefine the convention of marriage and assign it to whom it will, and no one can gainsay it. In fact, to deny marriage to anyone would seem to be arbitrary.

Yet this is not what the Supreme Court said in the past. Recall that in 1885, the Murphy v. Ramsey ruling declared that, “For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement…”

This seems a rather eloquent enunciation of a “legitimate purpose” in the definition of marriage as between a man and a woman, one that Aristotle would easily recognize. How could it not have occurred to Justice Kennedy, who seemed completely unaware of it – to the point that he dismisses its possible existence as a legitimate purpose?

Another interesting point is the repeated emphasis in Windsor on the authority of state law to define marriage. Indeed, no constitutional scholar would dispute this authority. But does it include the power to define it as anything? The Murphy ruling did not hold so. In Reynolds v. United States (1878), the Court also did not consider that it included polygamy because, in part, “polygamy leads to the patriarchal principle… which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy”.

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