The Case that Lost Marriage

 

By Fr. Marcel Guarnizo
PewSitter.com

(Fr. Marcel Guarnizo provides definitive analysis of the oppresive and un-American SCOTUS edict on gay-marriage.)

Given the decision of the Supreme Court on June 26th to grant a constitutional status to homosexual marriage, it is critical to review and answer many of the questions that went unanswered during oral arguments in the case, with a special emphasis on correcting errors that were put forth during the hearing. It is also a time to critically assess the strategies that have been implemented by some of the marriage advocates and resolutely seek better options.

Discussions on fundamental questions such as marriage have to start with a proper understanding and definition of the subject at hand. The “what questions,” (e.g., what is marriage?) and their proper answers are the first and necessary requisite for understanding why the defense of marriage as the union of one man and a woman is not an act of injustice nor an act of sexual discrimination. A proper operational definition of marriage also clarifies why the contrary formulation (“homosexual marriage”) is incompatible with the facts about marriage.

During the April 2015, oral arguments, Justices Alito, Roberts, and Scalia correctly zeroed in on the “what” question from the get go. Justice Roberts noted: “The argument on the other side is that they’re seeking to redefine the institution.” Justice Kennedy also pointed out that the definition of marriage “…has been with us for millennia.” Justice Alito saw clearly that a proper operational definition of marriage is the necessary starting point. During the deliberations he asked, “What do you think are the essential elements of marriage…?”

The pro-marriage lawyers arguing before the Supreme Court of the United States (SCOTUS), and before them, some of the advocates in the marriage debate, have improperly defined marriage and its constitutive parts.

These thinkers have been defining the essential elements of marriage in terms of children and the good of the child. However, children are not an essential element of marriage. Many of the mistakes made during the hearing had to do with this error.

Children are not a necessary component of that which constitutes marriage. This improper understanding of marriage shared by the lawyers on the pro-marriage side of the SCOTUS oral arguments led to erroneous reasoning derived from this seemingly small initial error. As can be seen from the transcript of the oral hearing, the lawyers of the pro-marriage side seemed philosophically unprepared to deal with many of the questions the justices presented.

“A Small Error in the Beginning Leads to a Big One in the End”

I will limit my reflections to Question 1 of the hearing, that is, whether “homosexual marriage” is a constitutional right, as Question 2, regarding the status of “homosexual marriages” in states that forbid them was quite dependent on the outcome of the first question.

On Question 1, Mr. John J. Bursch, Esq., Michigan’s special assistant attorney general, argued the pro-marriage side. Bursch started with an opening statement that I can only describe as philosophically nearly unintelligible and positively incorrect on many grounds. Mr. Bursch avoided the essential question: What is marriage? His strategy was to stick to a procedural defense of marriage, the question: Who decides what marriage is? This strategy led to unsolvable problems for the marriage side.

1. “This case isn’t about how to define marriage. It’s about who gets to decide that question… And we’re asking you (the court) to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.”

Most of what is asserted in that statement is incorrect. There is no such thing as a “fundamental liberty interest,” of every individual to decide what is the meaning of marriage. Inventing further “pseudo fundamental rights,” is only adding to the problem.

Furthermore, none hold the “right” to arbitrarily formulate the definition of marriage. The claim holds a fatal and fundamental error, namely the presumption that marriage can be justly redefined, and furthermore that we have some fundamental right, or “liberty interest,” at stake in personally redefining it.

If the claim is that every American has in fact the fundamental right to define marriage, what do we make of the just complaint of millions of Americans against the homosexual lobby trying to redefine the reality of marriage?

Marriage does not proceed from a definition. The definition follows from the reality of a special kind of union sought from time immemorial between a man and a woman. The reality of marriage precedes the definition and its protection by law. The claim that there exists a “fundamental liberty” for each one of us to define marriage is absurd.

The marriage definition corresponds to a reality, which, as some of the justices pointed out during the court hearing, has accompanied mankind throughout its history with little fuss and bother, until the year 2001. In 2001, the Dutch tried to alter reality to apply the name of marriage to relations that do not have the essential elements of what it means to be married. Justice Breyer pointed out that the relation defined as marriage, always and everywhere between men and women, has been with the human race for ten thousand years. Marriage is the proper name and the result and proper description of one relationship, that of husbands and wives in a marital union.

The Nature or Essence of Marriage

Justice Alito’s question, “What are the essential elements of marriage?” is the crux of the matter.

What are the defining, essential, necessary elements, to attain marriage? Marriage requires two things:

By free I mean voluntary consent, but also that the proper subjects of marriage are without impediments to give the free consent required.

During the oral hearing, the pro-marriage side erroneously tied children to an essential definition of marriage. Mr. Bursch argued, “And when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences…”

This is an error. Marriages validly exist, with or without children. Children may be the result of marriage, but they are not necessary to constitute a marriage.

Children are essential to the definition of what constitutes a family, for a married couple without children is not a family. The constitutive definition of a family needs children as part of its essential elements, for without children a couple is just that, a married couple. Obviously, we have married couples that have no children.

Justice Sotomayor pursued this faulty understanding of marriage at length, “So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?”

Justice Kagan hit hard at the same mistaken notion of marriage, “… the best way to promote this procreation-centered view of marriage is just to limit marriage to people who want children.”

Justice Ginsburg dealt the fatal blow, “Suppose a couple, a 70-year-old couple comes in and they want to get married…”

Laughter broke out in the audience witnessing the proceedings.

“A small error in the beginning leads to a big one in the end.”

Redefining the Reality of Marriage

At this point, it is important to highlight how the homosexual lobby is seeking to redefine the reality requirement for marriage. The homosexual lobby is seeking to eliminate one essential element of the definition, the need for the proper subjects of the relation, before free consent can be rendered. They wish to ignore that every claim requires the proper subjects of the right to be the ones making the claim.

Their redefinition improperly seeks to make the second essential element of marriage—consent—the element that constitutes the whole. Consent is indeed needed for marriage, but it is not sufficient to qualify for that which marriage is.

The marriage redefinition crowd fails to acknowledge that the proper subjects are first required to render the consent. No one can legally consent to any contract in law if it cannot be proved that one may make the contract or is a proper party to the contract.

The issue has not previously come to the fore because for millennia it has been obvious that a man and a man cannot constitute the wife-husband relation. Men are not wives and women cannot be husbands. The claim of homosexual marriage is akin to identity theft: Men claiming to be wives and women claiming to be husbands.

But we live in a time in which post-modern thinking has taken over the reasoning of the West. The mantra of the post-modern worldview is that “there are no facts, only interpretations.” Granted, under this departure from reality, anything is possible.

The argument that consent is all that is needed denies that natural limitations can circumscribe or limit the parties to the marital union. If natural limitations were superseded by the mere consent of willing parties, all kinds of relations, which neither in law nor reality can be considered marital, would become candidates to be defined as definition of marriage. For instance, if consent is all that is required, a father could marry his son (assuming he is an adult), and they can both consent to the wedding. Incest would be possible if no natural limitations can circumscribe marriage. Polygamy would also be licit if consent is all that is required. Clearly, consent alone is meaningless and insufficient by itself to be considered the constitutive element of marriage.

Is the Denial of Homosexual Marriage Akin to the Prohibition of Interracial Marriages?

“What is the Reason for the Exclusion rather than the reason for the non-inclusion?” (Justice Kagan)

Justices Sotomayor and Breyer asserted that the reason for the non-inclusion of homosexual unions in the definition of marriage is no different from the unwillingness in certain nations, at a particular historical moment, to allow interracial marriages.

But if one understands the proper definition of marriage and its constitutive elements, it is easier to see why the banning of interracial marriages was unjust and how it differs factually from the case of two men or two women seeking marriage.

Justice Sotomayor stated her main objection to heterosexual marriage in this regard, “Has black-and-white marriage been treated fundamentally? … And that, for me, is as simple as the question gets.”

Simply put, Justice Sotomayor, a black man and a white woman, or a black woman and a white man, who seek marriage, fulfill both constitutive elements necessary for marriage: 1) a man and a woman, 2) freely consenting to the marital union.

Having therefore in that relationship the constitutive or essential elements needed for marriage, to ban the possibility of marriage between two people of different races was completely unjustifiable. “Proper race” or “equality of race” is not a constitutive element to marriage; therefore no good reason existed to impede these couples from marrying. The essential requirements for marriage have never included a man and a woman of the same race. That is an improper formulation. A man and a woman suffice to attain marriage if they freely consent to the marital union. This is what made the denial of interracial marriage unjust.

But this is of course not the case if a black man and a white man had presented themselves for marriage. In this case, it would be completely justified to point out that the necessary elements for marriage are not present. The marriage would not be allowed, not because they were of different races, but rather because they do not have the necessary constitutive elements for marriage, namely a man and a woman.

It’s that simple.

Marriage Is Not a Fundamental Right

“The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right.” (Justice Sotomayor)

The Constitution states absolutely nothing about what marriage is or is not. Unfortunately, the pro-marriage side conceded this faulty premise, and argued based on this faulty premise, from the get go.

Sotomayor’s implication was clear; if marriage is a fundamental right then no one can be deprived of that right at any time, for any reason, without committing injustice. Fundamental rights are not dependent on State referendums, courts, or anything else. If it is a fundamental right, it cannot be denied justly to anyone.

Fundamental rights are by nature universal. Sexual preference on the other hand, can be quite particular. The 2013 U.S. National Health Study found that 96.6% of the American population self-identified as straight, (their language), 1.6% of the population considered themselves to be homosexuals, 0.7% bisexual, and 0.3% transgender. On what basis could one construe a fundamental right based on sexual orientation? There is nothing fundamental or universal about these sexual orientations. The rule of law protecting actual fundamental rights is not biographical. It, by necessity, deals with rights that are universal.

The confusion arises because the ability to marry for those who fulfill the essential requirements for the marriage union is a particular exercise of a fundamental right, which is in fact universal, namely, the fundamental right of association. Citizens possess the just claim vis-à-vis the government that we cannot be forbidden to associate. This because human beings are by nature social beings and it would be inhuman to ban human association.

But note the distinction. My fundamental right to associate, vis-à-vis the government, is incorrectly understood if a further claim is made, namely that I have a fundamental right to enter any particular association I may choose to join. There is no fundamental right that owes me entry into every association I desire to join. Entry into particular associations is not regulated by the fundamental right to associate.

Each particular form of association has limits and regulations to which I do not have an immediate claim to join at will. Some of the limits for particular associations are “de iure” by law, some are found in bylaws, some are based on certain principles and goals that the association seeks to pursue. And some have limitations due to no one’s volition but are simply limitations due to natural facts. In the case of marriage, the immediate limitation is due to natural facts. The proper subjects for this association (marriage) must be of different genders (a man and a woman). Added to this, this particular form of association has been because of its perceived importance for society, from time immemorial protected for its survival and prosperity by law and custom. It has also been in most cultures elevated by a religious bond that indeed has helped maintain its stability.

It is irrational therefore to think that I have a claim in justice to automatically enter any association I may choose.

If this were so, would I also have a fundamental right to join the Redskins football team? Do I have a fundamental right to be admitted into Harvard University? The list would be endless.

Marriage is like the rest of the examples. It is a particular kind of association, one that has limitations, as does every other association. The limitations in marriage are by nature and then by law and custom.

To help see the problem more clearly, let’s consider a few more examples. I may desire to be a Swiss citizen, but life determined that I was born in Washington, D.C. and my parents are not Swiss. It is not a violation of my fundamental right of association if I do not receive a Swiss passport.

Some types of association have even stronger natural impediments, impediments that are limitations due to natural facts. Facts of nature are not the result of anyone’s injustice or prejudice. I can never belong to the Spanish Royal family, however so desperately I would like to. I may indeed claim to be unfulfilled if not admitted. I could claim that only hatred and xenophobia are the reasons for my exclusion. But all this does not alter the fact that I am not a blood relative of the Spanish Royal family. Is this a violation of my fundamental rights?

Plenty of limitations exist in our lives and we must learn to cope with them. A man cannot be a member of the fairer sex, regardless of how many operations or appearance changes he undergoes. A man cannot become a woman. For a man to claim a fundamental constitutional right to be recognized as a woman would be equally absurd.

Does a white woman have a fundamental right (or a constitutional right) to be recognized by the rest of the country as black? Can a white woman become black just because she so desires or because she has the “black inclination or orientation”? Imagine if a small group of white people with an orientation to be black constituted a well-funded, vociferous lobby. Would they eventually be able to claim a fundamental human right or a constitutional right to be recognized as black by the 318 million people in the United States?

Likewise marriage has natural limitations; two men simply do not qualify for the association of husband and wife in marriage.

Homosexual Men and Women Are Not Denied the Opportunity to Marry

The discussion of marriage as an American constitutional right (which, as we see, it is not) has thus far ignored the fact that men and women with homosexual or bisexual tendencies are not denied the opportunity to marry. Many, in fact, are married to people of the opposite sex. They have willingly chosen a heterosexual relation—with all its difficulties—above their homosexual proclivities. These men and women have chosen to put other goals—family, complementarity in marriage, and children—higher than their attraction towards people of the same gender. Undoubtedly many are happy and find fulfillment in things that they consider more important and of higher value than their sexual tendency.

Men and women with homosexual tendencies do fulfill the essential elements required to enter into marriage as we have defined it here: a man and a woman freely consenting to the marital union. As long as a man or a woman with homosexual tendencies intends to marry a person of the opposite sex and there is free consent, marriage is possible.

Marriage Is Not “Dignity Bestowing”

Another point of confusion at the SCOTUS hearing centered on Judge Kennedy’s erroneous view that the institution of marriage bestows dignity on the participants. Consider his statement during the oral arguments: “I don’t understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It’s dignity bestowing, and these parties say they want to have that same ennoblement.”

In retorting, Mr. Bursch (pro-marriage side) went back and forth on this issue, but clearly did not understand that marriage does not confer human dignity and furthermore that the State also cannot confer human dignity. Human dignity is derived from nature by virtue of the fact that someone is a human being. This is completely unalienable, and independent of the State or its institutions. Human dignity is in no way affected by the particular marital status of the individual.

The Quality of the Consent is Not Constitutive of Marriage

The extensive debate before the high court also swirled around the nature of the consent, love, or lack of love, emotional commitment, and the rest, as distinguishing elements between homosexuals and heterosexuals. This was foolhardy.

The State has no duty or ability to verify if love is at play, if there is emotional commitment or not, if children will be desired or not. It is also not part of the State’s duty to evaluate the quality of the consent as long as it is free and no natural impediments exist. The quality of the consent is that which the man and woman in a relationship must freely decide and evaluate themselves before they commit to the marital union.

It is also not part of the State’s duties to regulate procreation through marriage. That is the totalitarian view practiced by the Chinese communist regime, which enforces a one-child policy and forced abortion or dire penalties if families exceed the one child quota. When Justice Kagan asked the pro-marriage side, “… are you saying that recognizing same-sex marriage… will harm the State interest in regulating procreation through marriage?” Mr. Bursch replied, “We are saying that Your Honor.”

Contrary to Mr. Bursch’s position, I argue that the State has no authority to regulate the procreation of its citizens. The small error in the beginning of the court arguments—the confusion of trying to make children an essential element of marriage— led to many mistaken conclusions and arguments, this being one of them.

Bursch improbably argued that two different world views exist between heterosexual couples and homosexual ones, “… the other couple (homosexual couples) believes that marriage is more about the emotional commitment to each other, and if that commitment fades, then they may not stay together…Looking at those two couples… one believing it’s all about staying with their kids (heterosexual marriage), the other believing it’s all about emotion and commitment (“homosexual marriage), could have different results.”

Again, in Mr. Bursch’s improper understanding of the distinction between so-called homosexual unions and heterosexual marriage, he clearly opposed love and emotional commitment (homosexual couples), to a crude biologism (heterosexual marriage) that would find its belief system in keeping the biological connection to children alive in the mind of the child and society.

The justices accurately pointed out that his argument made no sense and was rationally unverifiable. This false contraposition failed to see the obvious: Heterosexual marriage is indeed ideally agreed to because there is love and commitment on the part of the husband and the wife.

However, love and emotional commitment is not the distinguishing element between marriage (a man and a woman) and homosexual relations. To create these false distinctions, (heterosexual biologism attached to children vs. homosexual love and commitment) is most unhelpful. They simply create error upon error regarding marriage, its proper vision, its ends, and its essential definition.

I humbly submit that our side needs to revise its arguments.

The Supreme Court has started down this path but it will never be able to justly deal with the consequences of the chaos it has just unleashed.

Marcel Guarnizo is a philosopher and theologian, engaged in the public debate on philosophy, ethics, theology and economics.