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“Marriages” between two men or two women today were “legalized” in all 50 states of the United States — even in states which had forbidden it up to now — following a 5-4 US Supreme Court ruling released this morning, June 26, 2015.
Here is a link to a Washington Post report on the ruling (link).
Here is a link to the official text of the decision, with the various opinions of the individual judges (link).
For all those who would like to make a serious study of this decision, it would be worthwhile to read the actual text, found at the link above. It is not easy reading, it takes time, and it is sometimes quite disturbing to see the logic, or lack of logic, in the arguments made. But it is important to read the actual text if one wishes to understand more profoundly what has been decided.
The essential point of the decision is to make homosexual relationships and partnerships, whether of two men or two women, “equivalent” to heterosexual relationships and partnerships.
“Under the Constitution,” Justice Anthony Kennedy, author of the majority decision, writes, “same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right. The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” (Kennedy was joined in his opinion by the court’s liberal Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.)
Historically, when heterosexual partnerships of one man and one women have been made permanent and exclusive, and open to children, they have been called “marriages.” These “marriages” became the basis of “families,” and “families” became, arguably, in every human society worldwide, the most basic, fundamental social units, the “cells” of society: father, mother, children (biological and adopted), and then the extended family: grandparents, greatgrandparents, uncles, aunts, cousins…
Today’s ruling means that life partnerships of homosexuals and lesbians are also to be called “marriages” and are also to become fundamental units of society in the United States, and to be so regarded by the American society’s legal, institutional, and governmental structures.
This assertion of the equivalence of homosexual and heterosexual human relationships and behavior is the essential principle underlying this decision.
“For much of the 20th century… homosexuality was treated as an illness,” Justice Anthony Kennedy, author of the majority decision, wrote. “When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”
Once such a premise is stipulated and accepted — that “sexual orientation is both a normal expression of human sexuality and immutable” — it does seem to follow “logically” that the “civil rights” of those citizens who have homosexual inclinations must be equivalent to the “civil rights” of heterosexual citizens. And, since one of those “rights” is the right to marry, the conclusion seems to follow that people of the same sex should have the same right to marry as people of the opposite sex.
This is what the five judges who voted for this decision argue.
The decision celebrates the “autonomy” of human persons in their sexual choices.
Kennedy writes: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation… There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”
This decision defines marriage essentially in terms of its relational, not procreational, value.
Kennedy is explicit: “That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State.”
Kennedy cites Griswold v. Connecticut, which held the Constitution protects the right of married couples to use contraception and argued that that marriage is a right “older than the Bill of Rights.” Griswold described marriage this way: “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.”
Kennedy adds: “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other. As this Court held in Lawrence, same-sex couples have the same right as opposite-sex couples to enjoy intimate association.”
The decision then goes on to affirm the value of same-sex relationships in child-rearing.
There is no real exploration of the question of whether “dad and dad” or “mom and mom” are different in any way from “dad and mom.”
There is an implicit assumption that there is no significant difference between the two forms of family formation.
In fact, Kennedy develops the argument that, because society has allowed same-sex couples to adopt children, it must now allow those same-sex couples to “marry” in order that their adopted children not be “stigmatized” as being part of a “lesser” type of family.
Kennedy writes: “As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples… Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”
What about the religious beliefs of those who, in conscience, do not believe that a same-sex “marriage” is a real marriage? Will these religious beliefs still be protected by the Constitution, under the clause proclaiming freedom of religion?
Kennedy says yes, religious freedom in this sense will be protected. “Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine pre- cepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
However, there are many observers who are persuaded that religious beliefs opposed to same-sex “marriage” will increasingly be stigmatized in the US and soon, in some form or other, repressed, as the consequences of this new acceptance of same-sex marriage unfold.
In that sense, a decision that claims to offer new “freedom” to a certain class of citizens will, many believe, inevitably take away “freedom” from another category of citizens.
All of us living in this age are at a disadvantage in attempting to judge the meaning and consequences of this decision.
So what follows are necessarily preliminary and inadequate observations.
First, the very fact that the vote was not unanimous, but 5 to 4, means that there is self-evidently room to oppose this decision, as four of the Supreme Court justices themselves did oppose it. And if a 5th had done so, it would have been defeated.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. all dissented. (Each wrote separate opinions.)
Roberts wrote: “This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history — and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship.” And he cites the Roman statesman, Marcus Tullius Cicero, De Officiis 57: “For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”
This means that there are strong arguments against this decision, which four of the justices found compelling, and led them to oppose this decision.
Second, just as in the vote approving “gay marriage” in Ireland in May, there are clearly two profoundly different evaluations of what is the key issue in this matter which lead to two entirely different conclusions by those having to judge the matter — by the Supreme Court Justices, by politicians and statesmen, and by citizens in general, that is, by each of us.
Some people regard the key issue as one of “civil rights”; other people regard the key issue as one of “self-evident natural law.”
Those who regard marriage as a matter of “civil rights” — who appear now to be a majority on the United States, and throughout Western Europe (a recent Washington Post-ABC poll showed 61 percent of Americans say they support same-sex marriage) — regard today’s decision as “an historic victory for gay rights.” For such people, homosexual or lesbian couples should be allowed to marry because marriage is a “civil right” that should no longer be reserved only for heterosexual couples.
But for traditional Christians and Jews, and Muslims, and for many others as well, the definition of “marriage” necessarily includes a component of sexual complementarity. For them, a marriage cannot exist where there is not a “man” and a “woman.” For them, biological procreation is a constitutive element of “marriage,” leading to children connected biologically to their parents, generated by a “father” and a “mother” and so becoming biological “sons” and “daughters.” For them, these truths are self-evident.
The country’s first legally recognized same-sex marriages took place just 11 years ago, in 2004.