A change in law can precipitate a change in culture
Although the Supreme Court’s recent rulings on marriage were narrowly constructed, legal experts say they will likely have far-reaching consequences for society.
Hadley Arkes, professor of Jurisprudence and American Institutions at Amherst College, warned that the decisions “will have wide-reaching effects” within states because they make an “underlying moral judgment” that “sets off a dynamic of its own.”
Arkes spoke at a July 1 panel at the Catholic Information Centerin downtown Washington, D.C., on the effects of the Supreme Court’s June decisions on two cases concerning same-sex “marriage.”
Also on the panel were Edward Whelan, president of the Ethics and Public Policy Center and former Department of Justice official, and Carrie Severino, chief counsel and policy director to the Judicial Crisis Network.
The panelists responded to the Supreme Court’s June 26 ruling striking down a key section of the Defense of Marriage Act, which defined marriage as the union of one man and one woman for federal purposes.
The majority opinion stated that the 1996 law – also known as DOMA – violates Constitutional principles of due process and equal protection under the law, adding that supporters of DOMA intended “to disparage and to injure” gay individuals with the legislation.
In a separate ruling on the same day, the Supreme Court dismissed a case attempting to uphold California’s Proposition 8, which had defined marriage within the state as existing between one man and one woman.
The court did not rule on the merits of the case but instead pointed to the fact that state officials declined to support the law when it was challenged. The court said that the law's proponents, who took up the burden of defending it in court, did not have the legal standing, or right, to do so.
Panelists criticized the rulings. Arkes observed that the majority opinion, penned by Justice Anthony Kennedy, asserts that those who oppose a redefinition of marriage are motivated by irrational “animus” and said that this will lead to state definitions of marriage as the union of one man and one woman being labeled as irrational and bigoted.
Whelan pointed out that marriage has traditionally reflected “the biological reality that only opposite-sex unions generate children.”
The Constitution “doesn’t speak to how the states allocate their authority” in regards to social institutions such as marriage, and the public could potentially change its mind about such institutions through a democratic process, he suggested. However, the court cases have damaged that democratic process, enabling the federal government to override the people’s understanding of marriage within a state.
Severino said that the rulings will lead to an incremental advance of same-sex “marriage” throughout the states. “It builds complacency, it builds cultural acceptance,” she explained.
In addition, she noted, the dismissal of the Proposition 8 case on “standing” grounds has established a precedent for a governor to exercise “veto power over any law” he or she does not like by simply refusing to defend it, disregarding the will of the people as expressed through their elected officials.
Severino also warned that these rulings pose a religious liberty threat to individuals and institutions that do not recognize same-sex partnerships as marriages.
Recent lawsuits have made it difficult to be involved in the marriage industry – along with other industries such as adoption and foster care – “unless you’re willing to cooperate in same-sex ‘marriages,’” she said.
She suggested that under the new understanding of marriage, colleges accepting federal funding “would be branded as having animus if they don’t, say, extend married dorms” to same-sex partners.
Such a policy could result in religious schools being forced to give up federal funding or even shut down, similar to Catholic adoption agencies that have been forced to shut down in states where “gay marriage” is recognized, she said.
Severino voiced doubt that the current administration would provide sufficient religious freedom protections to guard against such a situation.
“This administration has been very troubling in everything they have ever said on religious freedom,” she stated.