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Stop the Premature Talk of Surrender on Same-Sex Marriage

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Carson Holloway - published on 06/02/14

Same-sex marriage will be "inevitable" if you believe that it is.

To hear some commentators talk, America’s struggle over the meaning of marriage is already over, and conservatives have lost. Like latter-day Edgar Allan Poes, they are busily preparing a premature burial for marriage as a male-female union. Conservatives should imitate Poe’s protagonist and refuse to cooperate with this ghoulish enterprise, showing their opponents that they and their cause are very much alive.

Recent suggestions of surrender are noteworthy because they go beyond the now-familiar claims from the left about the “inevitability” of nationally approved same-sex marriage, claims that were always intended as a substitute for actual argument about the proper understanding of marriage. Now, even some voices on the right are speaking of American conservatism’s coming defeat and surrender on the question of marriage.

Calls for capitulation are premature, however, for reasons of both principle and politics.

A Matter of Principle

As a matter of principle, the American right cannot, because of its character and mission, stop making the case for a normative conception of marriage as a union between one man and one woman. Most obviously, to cooperate in treating this historic understanding of marriage as merely optional would be to cooperate in fostering social conditions that are harmful to children.

Defenders of the redefinition of marriage to include same-sex couples often ridicule the idea that such a redefinition could somehow harm existing marriages. They miss the conservative response that society as a whole, by embracing the redefinition of marriage, would be willfully ignoring the fact—well supported by social science over many years—that the family made up of one parent of each sex is the best environment in which to nurture a child. The historic definition of marriage does not prevent homosexuals from living however they want to, but it does reserve society’s formal approval for the type of union that can connect children with both their mom and dad.

It is clear that the argument in favor of same-sex marriage has been pressed primarily, indeed almost exclusively, on the grounds that it is necessary to meet the demands of the individuals who wish to enter into such a union. Yet a society that decides to redefine a fundamental social institution to suit the desires of adults, while barely considering the implications of the redefinition for the well-being of children, can hardly be said to be acting in the best interests of the next generation. It is hard to see how conservatives could in good conscience acquiesce in such a project.

More broadly, the intellectual identity of conservatism—if it is to have any substantive intellectual identity at all—is surely bound up with the need to preserve the essentials of our civilization as we have inherited them, and in particular to preserve them against the corrosive influence of dogmatically egalitarian ideology. The movement in favor of same-sex marriage, however, is clearly one manifestation of just such an ideology: it insists on a certain kind of equality, even at the cost of redefining an institution that has been central to human flourishing, the character of which very few people would have admitted to be problematic until just a few years ago.

Indeed, it is hard to see why such a spirit should stop at redefining marriage and still bow with reverence before other received ideas that also might offend against a doctrinaire equality—ideas such as private property, the obligation of contracts, or freedom of religion. And it is equally hard to see how a conservatism that chose to capitulate to the redefinition of marriage could find the intellectual resources or the courage to defend these other principles once they come under sustained egalitarian attack.

Finally, any authentic American conservatism must be concerned with preserving the essentials of American constitutionalism and the rule of law. As a practical matter, however, the victory of same-sex marriage must be a defeat for the Constitution and the rule of law. The predicted national victory is not expected to come as the result of a gradual persuasion of the American people through the normal democratic means of social change. That is, no one expects same-sex marriage to have a national victory in the near term through the voluntary redefinition of marriage by legislatures or voters in all of the fifty states. Rather, the anticipated victory is to come through a decision of the Supreme Court declaring a constitutional “right” to same-sex marriage.

Such a ruling, however, will certainly be a fraud on the public and an attack (however veiled) on constitutional self-government. It will come in the form of an opinion holding that the equal protection clause forbids states to “discriminate” between opposite-sex and same-sex relationships. The justices who sign on to this opinion will confidently assert that this is a requirement of the clause, despite the fact that no one seriously contended that it carried this meaning, or even had anything to do with questions of sexual orientation, until the last few years.

This meaning was clearly not in the minds of those who wrote and ratified the Fourteenth Amendment. How then, can it get into the amendment? Only from the minds of the justices who desire it to be so. Such willful judging, by which jurists take it upon themselves not to do what is required by the Constitution but instead to make substantive determinations of their own about what is just, is the opposite of self-government and the opposite of the rule of law. No conservatism that is serious about preserving fundamental principles of American government can stand for this.

In sum, from the standpoint of principle, a conservative surrender on marriage constitutes surrender on everything for which conservatism stands.

The Practical Political Angle

Nevertheless, those who predict defeat and surrender might reply that principle is one thing, but practical politics is quite another. A defense of marriage might be essential to principled conservatism, but conservatism is also a political movement intent on winning electoral victories; once same-sex marriage wins its national victory, American conservatism, or at least the Republican Party, will have to make peace with it in order to remain nationally competitive.

On the contrary, even on purely pragmatic grounds, it is hard to see how such a peace can be in the offing. Political conservatism—and its political instrument, the Republican Party—cannot afford to abandon the cause of marriage. This inability is rooted in the same-sex marriage battle’s inextricable connection to issues that are necessary to any realistically conceivable winning Republican coalition.

Let us begin from the aforementioned problem with the way in which a national same-sex marriage victory will come, if it does come. Its success would be due to an anti-constitutional and anti-democratic judicial activism on the part of a majority of justices of the Supreme Court. For the past two generations, the Republican Party has campaigned for the presidency, in part, on the grounds that it opposes such judicial activism. Republican candidates for the presidency have never been terribly good at explaining why such judicial activism is a threat to America’s political way of life, but they have been very clear in their opposition to it. Whether it was Richard Nixon’s claim to stand for “strict construction,” or Mitt Romney’s promise that he intended to nominate justices such as Scalia and Thomas, the party’s stand has been made tolerably clear even to those who have not thought through the problem of judicial activism.

Some of these Republican presidential candidates—such as Nixon, Reagan, and the second Bush—have won. Some—such as Dole, McCain, and Romney—have lost. But they have all been competitive at least in part on the basis of opposition to the remaking of the culture by unelected judicial elites. It is foolhardy to think that the party could improve its political position by simply dropping this issue, but that is exactly what it would have to do if it chose to surrender on same-sex marriage. No doubt, some who call for surrender believe that the party could finesse the issue with its own core voters, but any such effort would require pretending that the Supreme Court decision in question was a responsible exercise of the judicial power, a farce that would be insulting and alienating to the GOP’s own core voters.

Some might object that opposition to judicial activism has never been one of the Republican Party’s primary themes. Perhaps, then, the party can successfully abandon it while emphasizing other issues that will reconcile its conservative voters to its overall position. This is impossible, however, because of the inextricable connection between the case against judicial activism and what is undeniably an important issue, and an intensely felt one, on the part of core Republican voters: opposition to abortion.

The Abortion Connection

If you ask an uninformed voter about the parties’ positions on judicial activism, you will in many cases get an answer revealing complete ignorance. This would certainly not be the case if you were to try the same experiment with abortion as the issue in question. Almost everyone, even the most inattentive voter, knows that the Republican Party is generally pro-life.

Better-informed Republican voters, moreover, know very well that any genuine Republican efforts to contain the culture of abortion must also involve a battle against judicial activism. America’s uniformly liberal abortion regime—like its prospective uniformly liberal regime of marriage—is not the work of the voters but of the Supreme Court. Pro-life, conservative voters have spent the last several decades arguing that the most obvious way to roll back this abortion regime is by electing Republican presidents who will appoint constitutionalist justices who would be willing to reverse Roe v. Wade when a satisfactory case presented the opportunity.

The Republican Party cannot surrender the cause of marriage, however, without also in practice surrendering the cause of life. To borrow the language of Byron White’s dissent in the Roe companion case Doe v. Bolton, a decision announcing a constitutional “right” to same-sex marriage will be every bit as much an act of “raw judicial power” as was the Court’s conduct in Roe and Doe. A Republican Party that gives up the fight against judicial activism in order to make peace with same-sex marriage will also be surrendering the fight for a constitutional order more protective of the right to life. There is no way such surrender could be achieved without shearing away masses of morally conservative, pro-life Republican voters.

And conversely, any Republican president who makes and keeps a pledge to nominate constitutionalist (and, implicitly, anti-Roe) justices, will inevitably be hacking away at the foundations of both the right to same-sex marriage and the right to abortion. As a practical matter, it is impossible to imagine a constitutionalist jurist who is willing to revisit and overturn Roe—a forty-one-year-old ruling that was approved by a seven-person majority—yet who will treat as untouchable a ruling in favor of a right to same-sex marriage—which will be brand-new, based on a novel theory of the Fourteenth Amendment, and will have passed by a five to four vote.

In The Fellowship of the Ring, J.R.R. Tolkien’s Gandalf admonishes his discouraged fellows that “despair is only for those who see the end beyond all doubt. We do not.” Neither do we. Such certain knowledge of the future is given no more to us than to the inhabitants of Middle Earth, and we no more than they may rightly invoke it in order to justify surrender to what we believe to be wrong.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Courtesy of Public Discourse

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