No, the Supreme Court Didn’t Just Legalize Gay Marriage.

The Supreme Court and President Obama
President Barack Obama talks with Justice Sotomayor prior to her Investiture Ceremony at the Supreme Court September 8, 2009. (Official White House Photo by Pete Souza)

One of the biggest news stories this summer has been the Supreme Court’s 5-4 decision last month in Obergefell v. Hodges which both declared gay marriage legal, and a constitutional right. Given this, both fans and opponents of the ruling have spoken of it as “legalizing” gay marriage nationwide. But it hasn’t. And it hasn’t, because it can’t, because the Supreme Court doesn’t have the power to do what it claims to have done.

I. What are the Limits to the State’s Authority?

For a law to be valid, the legislating body must have the authority to legislate. You can’t, for example, create a constitutional right to free amusement park rides, because you don’t have the authority to do that. Even bodies with lawmaking authority (and despite the pretense that Obergefell is about Constitutional “interpretation,” it’s really an exercise in lawmaking) are bound by the limits of that authority. The U.S. government can’t change the laws of Sweden, because the American government’s authority doesn’t extend that far.

Ironically, this is the very point that the majority is making in Obergefell. According to this argument, state laws against same-sex marriage are against the Constitution. And since the states’ ability to legislate flows from the Constitution, unconstitutional laws are outside of their jurisdiction, and thus, null. The legislative authority that states enjoy due to the U.S. Constitution isn’t unbounded, and (sayeth the Court, wrongly) these laws overstepped that authority.

While they applied those principles badly in this case, those are sound principles. You can’t go beyond the authority you’ve been given, and that’s just what unconstitutional laws do.  But if that’s the case, what are the limits to the Court’s authority? To answer that, you need to figure out where its authority comes from. The first and most immediate source of judicial authority is the U.S. Constitution, and so a decision that runs contrary to the Constitution isn’t a “law” in the true sense of the term (for the reasons we’ve just discussed with state laws). But that only moves things back one step: where does the Constitution get its authority? More to the point, where does any civil authority get the power to legislate? Why do we treat 5-4 Supreme Court decisions more reverently than, say, lynch mobs? It can’t just be the consent of the masses, since that answer would seem to favor the mob over the unpopular ruling.

Christianity has an answer for this, and this answer resolves an apparent Biblical contradiction. Jesus, in Matthew 6:24, says, “No one can serve two masters; for either he will hate the one and love the other, or he will be devoted to the one and despise the other. You cannot serve God and mammon.” So we can’t have split loyalties: between God and money or between God and anything. And yet He also says, “Render to Caesar the things that are Caesar’s, and to God the things that are God’s” (Mark 12:17). How can those two statements be reconciled? Isn’t He calling us to serve two masters, God and Caesar?

The key is that legitimate civil authority is ultimately God-given authority, even when (as was the case of Caesar) the ruler is secular or even anti-Christian. This is the meaning of Jesus’ response to Pilate in John 19:10-11,

Pilate therefore said to him, “You will not speak to me? Do you not know that I have power to release you, and power to crucify you?” Jesus answered him, “You would have no power over me unless it had been given you from above; therefore he who delivered me to you has the greater sin.”

And it’s also drawn out, more explicitly, by St. Paul in Romans 13:1-7,

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. Therefore one must be subject, not only to avoid God’s wrath but also for the sake of conscience. For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay all of them their dues, taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due.

To put it simply: our obedience is singularly to God, but obedience to God requires obedience to Caesar… when Caesar is acting within that legitimate authority.

That’s the double-edged sword: just as the Constitution both empowers and limits the legislative power of the U.S. government, God and His Law both empower and limit civil authority more broadly. Therefore, a “law” that is contrary to God’s Law simply isn’t a law in anything more than a nominal sense. When the Roman government passed laws calling for Christianity to be reported and executed, Christians weren’t obliged to render themselves over to Caesar to be martyred. They could (and indeed should) freely ignore such an unjust and invalid law.

This principle is a longstanding part of Christian legal tradition, and a bedrock of Western civilization. It’s been spelled out by great thinkers like Augustine and Aquinas, although I’ll defer to this beautiful summary:

One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

That was Martin Luther King, Jr.’s Letter from a Birmingham Jail, explaining the legal and moral justifications for civil disobedience. More specifically, he’s explaining why it wasn’t hypocritical to demand the enforcement of Brown v. Board while disobeying Jim Crow laws (basically, the exact argument being made in pieces like this one). And his words capture perfectly why Christians cannot and will not cooperate with the same-sex marriage ruling, even as we are bound to obey (and expect others to obey) just laws.

Lyndon B. Johnson meets with Martin Luther King, Jr. at the signing of the Voting Rights Act of 1965
Lyndon B. Johnson meets with Martin Luther King, Jr. at the signing of the Voting Rights Act of 1965

II. Why the Same-Sex Marriage Ruling Violates Natural Law

There’s a distressingly widespread idea that Christians think gay marriage is wrong just because the Bible says so. On this basis, we’re routinely told that there are two types of marriage: “religious” or Sacramental marriage, which is whatever religions define it as; and “civil” marriage, which is whatever the State defines it as. So if the Catholic Church wants to say marriage is between a man and a woman, fine; but that’s only true for Catholics.

There’s a half-truth buried in this falsehood: namely, that there really is a distinction between sacramental and non-sacramental (or “natural”) marriages. Marriage is unique amongst the Sacraments of the Catholic Church in that it’s pre-Christian. The other six Sacraments are introduced by Christ and the Apostles but marriage was there when they got there. Christ elevates marriage, but He doesn’t establish during His earthly ministry. But natural marriage is badly defined as “civil marriage,” because just as it’s pre-Christian, it’s also pre-civil. The Catholic Church didn’t create marriage, but much less did the United States government. As then-Senator Hillary Clinton put it in 2004:

I believe marriage is not just a bond but a sacred bond between a man and a woman. I have had occasion in my life to defend marriage, to stand up for marriage, to believe in the hard work and challenge of marriage. So I take umbrage at anyone who might suggest that those of us who worry about amending the Constitution are less committed to the sanctity of marriage, or to the fundamental bedrock principle that it exists between a man and a woman, going back into the midst of history as one of the founding, foundational institutions of history and humanity and civilization, and that its primary, principal role during those millennia has been the raising and socializing of children for the society into which they are to become adults.

 

The political tides (and thus, Clinton’s position) have shifted since then, but these words remain true. Marriage is something that we see from the very dawn of civilization, and it’s always been about a man and a woman sharing a common life and raising a family together.

Given this, the male-female component of it is absolutely basic. It’s not some vestige of homophobia. In fact, this doesn’t even require a belief that homosexuality is wrong. The ancient Greeks praised homosexuality and virtually institutionalized homosexual pederasty, and yet they recognized marriage as a thing that was possible only to a man and a woman.

Rather, it’s a recognition of the intimate connection between marriage and family. Marriage exists, in no small part, to protect defenseless children coming into the world. The institution of marriage creates a primitive social net into which they can be born, in which they can count on at least two people looking out for them while they’re too young to look out for themselves. Obviously, this doesn’t always pan out: everything from divorce to abuse to parental death can complicate this picture, but civilizations nevertheless recognized it as the best option on the table. Modern social science confirmed this, finding that children fare better with their two parents than they do with any other social arrangement.

 

The Catechism of the Catholic Church puts it this way (CCC 1601):

The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament.

This recognizes that there’s a distinction between natural marriage and the Sacrament of Holy Matrimony (a covenant between two baptized persons), but it also recognizes that both forms of marriage are male-female, because both forms of marriage are tied to family and procreation.

This truth, universally recognized for almost all of human history, has now been called into question and ignored. In fairness, it didn’t start with Obergefell or gay marriage. No-fault divorce, a disconnect between marriage and sex, and between sex and procreation (with contraception in one direction, and artificial fertilization in the other), has led to a situation in which people can’t give a coherent response to questions like, “What is marriage for?” or “What is sex for?” that resorting to a subjective, “Well, to me…”

But while the Supreme Court, and society more broadly, may have forgotten what marriage is or why we protect it Sacramentally and legally, the Church hasn’t forgotten. And with this clarity, she can see that what is currently being trumpted as the latest form of “marriage” is nothing of the sort.

The natural law can no more be “overturned” by the Court than can the laws of nature. A court certificate declaring two homosexuals “married” no more creates a marriage than a business certificate declaring a company a corporation creates a “person.” In both cases, we’re dealing with a pure legal fiction.

Alexandre-François Caminade, The Marriage of the Virgin (1824)
Alexandre-François Caminade, The Marriage of the Virgin (1824)

Why The Contrary View Doesn’t Work

Opposed to the Christian legal tradition is a purely social contractarian view that says, in effect, that the consent of the people is all that matters. If 51% of people support X — or if they’ve collectedly entered a society whose system of government decrees X — it doesn’t matter if X is against the Divine Law.

The problem with this view is that it creates virtually limitless authority for the State. Over the course of the last century, we’ve seen several atheistic regimes seeking to take the place of God: from Hitler to Stalin to Pol Pot to Kim Jong Il to Mao to Castro. When you remove God from the picture, the State fills that vacuum.

And if your position is that gay-marriage opponents should be forced to comply with the Obergefell ruling, what possible defense could you have for violating Jim Crow laws (or whatever unjust laws come down to us in the future)? For all of the gay rights movement’s declaring itself the New Civil Rights Movement, it’s really a rejection of the moral and legal principles that gave us the actual Civil Rights movement. You can either praise MLK for ignoring an unjust law, or try to win the gay marriage debate via judicial fiat, but you can’t do both. That’s why the fight here is part of a much bigger fight: are we going to live in a society in which our primary obedience is to God and His Law (including natural law, human rights, etc.), or a society in which whatever the States says, goes, no matter how abhorrent?

Some people reading this will want to object along these lines: “Well, that’s just your personal view. Not everyone is Catholic, or even Christian. How can you expect them to live by those rules?”

But it isn’t the case that civil authorities have to enshrine the Code of Canon Law into the U.S. legal code, or to legislate the Catechism. The Christian legal tradition has always recognized a distinction between civil and religious authority, even if there has been much debate over the precise nature and connection between the two. (The fact that cities had both bishops and mayors should be enough to demonstrate this). Rather, we’re talking about whether or not the government can declare (in effect), “God is wrong” or “His Laws stop at our shores.” Decent Christians can’t get onboard with that idea, and decent non-Christians shouldn’t expect us to. That besides, the impossibility of gay marriage isn’t something that we know simply from the Bible. As explained above, the nature of marriage itself testifies to this.

This objection to the Christian legal tradition is typically paired with fear-mongering about “theocracy.” As the argument goes, valid laws should depend on the consent of the governed, and nothing else. If we say that we also need them to be in accordance with God’s Law, that’s violating the separation of Church and State (or something).  This has always been an unbelievable scare tactic. America has never been a theocracy, nor particularly close. Even when religiosity was much higher than it currently is, it would be hard to point to a period of post-1776 history that was particularly “theocratic.” Today, the nation is both less religious and more religiously diverse. Are the people worried about “theocracy” suggesting that Mormons and Baptists will team up with Anglicans and Muslims to co-run the country? Or that some tiny cabal of Jews or Catholics is going to take over the government? Neither scenario makes any real sense.

But even if the threat of theocracy were real, the proposed solution (claiming virtually limitless power for the State) doesn’t exactly solve it, does it? If some religious group or groups really were on the verge of coming to power in this country, what sort of solution would deciding that governing bodies have basically-unfettered legislative power be?

 

With all of that said, then, the Supreme Court’s decision can’t be defended very well on democratic or social contractarian grounds. A bare majority of an unelected nine-judge body, five people in all, discovered a never-before-seen right to gay marriage in the Constitution, and decreed this right in an opinion that has more opponents than supporters. But still less can the Court’s ruling be defended on the more important grounds of the Christian legal tradition. For this reason, the decision fails as an act of law-making. Thus, there’s still no gay marriage law, nor will there ever be.

4 Comments

  1. Joe, I see Paul’s advice to the Romans in the context of the overall aims of the State, which arguably is the well-being of its members. Authority here means the orderly regulation of social life. If this regulation is good and necessary, it is then “appointed by God” in the abstract sense. But God didn’t specifically appoint this or that person to this or that office, otherwise we would need proof that He did so (how would we know?), and He (God) would be deemed responsible for his subordinate’s acts.

    I guess Paul must have been quite specific, because he says “rulers are not a terror to good conduct, but to bad”, when there were countless examples to the contrary in Roman society – for instance, later insistence upon sacrificing to the emperor/gods to prove civic loyalty, leading to many martyrs.

    Being a Catholic, and coming from a seemingly different political tradition (secularist France, methinks, though I’m not French by birth), I don’t see what the fuss is all about. You just can’t expect political, judicial or civic authorities to abide by religious laws, otherwise chaos, social unrest and oppression (or any combination thereof) would ensue. On the other hand, you can’t expect legislators or authorities to interfere in religious matters, including religious marriages. They’re not legislating on sacraments. They’re not forcing priests or rabbis to marry gay couples. As far as I know, they’re not forcing civil servants to celebrate same-sex marriages, if they object according to their conscience (the question whether a Catholic civil servant could celebrate a same-sex marriage even if he does not agree in principle with it, is an interesting question, albeit a secondary one). People don’t have to agree with gay marriage or to marijuana being legalized in some state (or at least not criminalized, there is a difference), they just have to agree that some people have the right to gay marriage, or the right to get drunk or stoned, even if, according to some views, that might be morally and/or religiously objectionable.

    The alternatives are all over the world for us to see: either banning civil marriage altogether, which leads to recognizing only religious marriages, and sometimes only religious marriages of a certain group, or severely limiting social, religious and political expression of divergent groups. The question of whether you or I believe in or condone any behavior is irrelevant as to its legal permissibility. Unless society begins falling apart (which I believe it isn’t), individuals may have the right to “sin” (such as drinking whiskey in Riyadh or Tehran), or even engage in behavior that is “unnatural” or not healthy (such as smoking), even though on the other hand religious people have the right to argue, condemn, deplore this situation, try to convert them, or whatever.

    1. “They’re not legislating on sacraments.”

      They are trying to legislate sincere religious beliefs however. The Little Sisters of the Poor (and other religiously affiliated non-profits) are going head-to-head with Obama and the HHS mandate. So far they are loosing. The Obama administration want to “accommodate” them to hell (and I’m speaking literally here) rather than give them the same exemption churches receive. No this is the same as same-sex marriage, but it’s of the same scope. People are already calling for “equality” laws which essentially place religious people in a bind. There is a deep concern that in the future there will be law suits on sincere religious beliefs involving the sacraments directly.

      “They’re not forcing priests or rabbis to marry gay couples.”
      There was a suit filed against a set of non-Catholic Christian ministers who operated a for-profit place called the Hitching Post. The ministers won their law suit. There is talk among extreme gay marriage advocates to sue other ministers because they are also civil servants. I believe the idea is to force any religiously ordained minister out of civil marriage and put a larger wedge between church and state. That said a number of priests are seriously considering removing themselves from being state civil officiants.

      “As far as I know, they’re not forcing civil servants to celebrate same-sex marriages, if they object according to their conscience (the question whether a Catholic civil servant could celebrate a same-sex marriage even if he does not agree in principle with it, is an interesting question, albeit a secondary one).”

      Several state civil servants have resigned. The Governor of Texas has stated that he supports those who object due to conscience. The Governor of Kentucky does not. There are currently two persons in Kentucky who refuse. One won’t issue any state marriage licenses to any couple. She’s an elected official. And she’s currently being sued by I believe four couples (or is it two?). So it really depends at the moment on who is doing the forcing and if the person in question is willing to object or resign.

      “People don’t have to agree with gay marriage or to marijuana being legalized in some state (or at least not criminalized, there is a difference), they just have to agree that some people have the right to gay marriage, or the right to get drunk or stoned, even if, according to some views, that might be morally and/or religiously objectionable.”

      Lots to unpack here. 1) There are some conservatives who are pro-ssm who are appalled by the ruling because they felt it was judicial overreach. They felt that it should have been a state-by-state decision. So it’s not just about ssm as it is about states’ rights being eroded. You seem to agree with them: that states should be given the right to vote on such matters.

      2) I guess where we disagree is what a right is. Does a person have the right to get married? No. Children can’t get married. Someone has to consent to marry you. It can’t be done by force. Polygamous groups can’t get legally married (they do spiritually though). And there are restrictions in terms of family relations. Obviously incest but less obvious are restrictions of the non-biological type like step-siblings, marry a step-parent, etc. So it isn’t so clear cut. Likewise there are restrictions to the legal use of alcohol. I grew up with wet and dry counties. Basically living in a dry county meant that they could only sell beer and wine coolers and not on Sundays. Alcohol is also restricted to those age 21 or older. There are public intoxication laws, open container laws, and drinking and driving laws. So is there truly a “right” to be drunk? Not really. Having witnessed police arresting two men for public intoxication in Atlanta I have to say there is no “right” to be drunk.

      Rights in my mind are those endowed by Our Creator. Things like life and religious liberty.

      The point of law is to encourage morality within society. That morality comes from Our Creator. We can certainly tolerate some immoral things like gossip without putting a person in prison, but when laws create immorality, that is where the problem lies. This is why there are open container laws so we don’t encourage public intoxication while allowing moderate drinking. What same-sex marriage did was to encourage society into immorality. It didn’t just start with those laws though. It started with non-fault divorce and unrestricted access to ART. Hopefully though it will end with same-sex marriage and not continue to snow ball.

  2. “Or that some tiny cabal of Jews or Catholics is going to take over the government?”

    If you take the demographics of the Supreme Court at face value, isn’t this precisely what has happened?

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