July 05, 2015
Supreme Court’s Re-definition of Marriage
Hello Dr. Craig,
With the recent Supreme court decision regarding same sex marriage I reread some of your Q/A response regarding homosexuality. In a question regarding the connection between interracial marriage and same sex marriage you said "Once we start down that route, anything goes: a man and two women, a man and a child, two men and a goat, etc. I see no reason at all to start down that road." with regards to same sex marriage. My question is does this statement constitute a slippery slope fallacy? My concern is that non believers would easily dismiss it.
I’m going to use your question, R.C., an excuse for addressing the Supreme Court’s tragic and misguided decision to re-define marriage in Obergefell v. Hodges.
We need to understand clearly that that is exactly what the Supreme Court has done. By ruling that same-sex unions can count as marriage the Court has implicitly redefined what marriage is. Marriage is no longer taken to be essentially heterosexual, as traditionally conceived, but has been implicitly redefined so that men can be married to men and women to women.
The Court’s majority opinion, written by Anthony Kennedy, shows a clear consciousness of what the Court is doing. Referring to the traditional view, Kennedy writes, “Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world” (my emphasis). It is this view which Court’s majority declares is now obsolete.
What is ironic about Kennedy’s opinion is that he eloquently extols marriage as foundational to American society and to civilization itself. He writes,
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together.
One would think that this provides good reason for preserving the traditional concept of marriage, rather than radically redefining it! Instead, the Court throws caution to the wind and has decided to revise this fundamental cultural institution.
In the Court’s view, marriage should no longer be considered to have an essence or nature but is a mere social convention, indeed, whatever the Court declares it to be. The majority opinion justifies this move by pointing out how marriage has evolved: for example, marriage was once viewed as “an arrangement by the couple’s parents” but no longer is so today. Such examples, however, concern only contingent properties of marriage, not its nature or essence (indeed, arranged marriages are still common in parts of the world today). Such contingent changes provide no grounds for the fundamental, essential change wrought by the Court.
By redefining marriage the Court has handed homosexual activists what they have aimed and worked for: the deconstruction of marriage itself. Kennedy admits, “Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission.” How does Kennedy know what their intent is, and why should that matter? Although the majority opinion of the Court portrays the issue before the Court as the petitioners’ seeking the benefits of marriage, such an interpretation is naïve. Surveys show that promiscuity is rampant in the gay subculture, such that the number of homosexual men in lasting, monogamous relationships is so tiny as to be statistically meaningless. This is not about so-called “gay marriage.” The petitioners are chess pieces in the hands of a movement bent on fundamentally changing American culture by deconstructing traditional marriage. The Supreme Court has delivered them checkmate.
On what grounds has the Court done this? The majority opinion provides four reasons why the Constitutional right to marry should be extended to same-sex couples. One can look at these arguments from two angles: (i) as philosophical justification for redefining marriage to include same-sex couples or (ii) as Constitutional grounds for an implicit right of same-sex couples to marry. The first is a philosophical question; the second is a legal question.
Most of the majority opinion and especially of the several dissents from the other justices concern the legal question, not the philosophical question. As the Court’s minority urges, it is not within the purview of the Court to define marriage but simply to settle the Constitutional question as to whether there is an implied right to same-sex marriage in the Constitution of United States. The dissenting opinions are blistering criticisms of the majority with respect to this Constitutional question.
In order to justify a right which is not enumerated in the Constitution or Bill of Rights, the Court must act with caution and find justification deeply rooted in American history and tradition. Justice Alito observes,
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that ‘liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘“deeply rooted in this Nation’s history and tradition.”’. . . And it is beyond dispute that the right to same-sex marriage is not among those rights.
Chief Justice John Roberts summed up the Constitutional question by saying,
The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that ‘it would disparage their choices and diminish their personhood to deny them this right.’ Whatever force that belief may have as a matter of moral philosophy, it has no . . . basis in the Constitution. . . .
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision . . . But do not celebrate the Constitution. It had nothing to do with it.
I’m going to leave the Constitutional question to others. In contrast with the justices, I as a philosopher am interested in the philosophical question of whether marriage should be redefined to include same-sex unions. So I want to consider the four arguments offered by the majority opinion in this light.
Here, in summary, are the four reasons the Court gives for extending the Constitutional right to marry to same-sex couples:
1. The right to personal choice regarding marriage is inherent in the concept of individual autonomy.
2. The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.
3. Marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.
4. Marriage is a keystone of the nation’s social order, and there is no difference between same- and opposite-sex couples with respect to this principle.
Most of these reasons either do not support same-sex marriage or beg the question by assuming that marriage is a mere social convention to begin with.
Take (1), for example. Of course, everyone has a prima facie Constitutional right to marry if desired. Any man can marry any woman, regardless of their sexual orientation. But what prevents a man from marrying another man is the same thing that prevents a bachelor from being a husband or parents from being childless or a square from being a circle. The obstacle is not legal but logical. Only after one has redefined marriage as a social convention can (1) provide a reason for allowing same-sex marriages. It cannot provide a reason for such a deconstruction.
Similarly for (2). Indeed, as noted above, this reason actually provides grounds for not mucking with the definition of marriage.
Reason (3) is tragically ironic, since studies have shown that children raised by same-sex couples are significantly disadvantaged compared to children raised by a mother and father. Indeed, one of the most interesting developments in the debate over same-sex marriage has been the emergence of adult children of same-sex couples who are now speaking out in favor of preserving traditional marriage due to difficulties they have experienced as a result of being raised by same-sex couples. They have powerfully argued that children’s rights are being sacrificed on the altar of the adults’ claims to personal freedom and autonomy.
Finally, as for (4), married couples do enjoy advantages, like jointly filing income taxes, which are not enjoyed by single persons. But that provides no reason for redefining what marriage is or allowing men to marry men. In their dissents, some of the justices observed with concern that the reasoning of the majority would apply not merely to same-sex couples but to all sorts of aberrant unions. John Roberts writes, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” He observes that “Although the majority randomly inserts the adjective ‘two’ in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” Indeed,
why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise ‘suffer the stigma of knowing their families are somehow lesser,’ why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry ‘serves to disrespect and subordinate’ gay and lesbian couples, why wouldn’t the same ‘imposition of this disability,’ serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?
This is not slippery slope reasoning. It’s more like falling off a cliff. By deconstructing marriage so that it is purely conventional, dependent upon the opinion of five justices, the Court makes marriage become whatever they want.
Still, the Court has decided the Constitutional question in favor of same-sex marriage. The United States has now passed a cultural watershed, and I fear that there is no return. Just as Roe v. Wade legalized by judicial fiat homicide against babies in utero, so now Obergefell v. Hodges has deconstructed the foundational institution of American society. My head reels. It is like a nightmare from which one wants to awaken. I no longer live in the same country in which I grew up. I feel a tremendous sadness at this realization.
So where do we go from here? How shall Christians, in particular, who believe in traditional marriage, act in this brave, new world? Two things come to mind.
First, Christians must resolve to be resolutely counter-cultural. Like Roe v. Wade before it, Obergefell v. Hodges perpetuates American culture’s decline into moral degradation. (One can only imagine how vindicated the Muslim world must feel in light of this decision about its condemnation of American culture!) With this decision the pressure to conform will become intense in pop culture, the academy, the corporate world, and even in the church. Those who refuse to conform to the new orthodoxy will be vilified and pushed out. My fear is that the next generation of Christians will not have the strength to resist these pressures and will accommodate itself to same-sex marriage. Already, I hear young Christians saying that homosexual activity is not immoral if it is in the confines of marriage, a view that would have been unthinkable to first century Jews like Jesus of Nazareth. Just as early Christians were willing to take a stand against the corrupt pagan culture of the Roman empire, so today Christians must dare to be different and to live counterculturally.
That implies Christian activism. Following the Supreme Court decision, I received a circular letter from the president of the denomination in which I am ordained. He observed that we evangelicals tried to elect a President to deal with the problem, and that didn’t work. We tried to elect senators and representatives to deal with the problem, and that didn’t work. We tried to make our case in the courts, and that didn’t work. His conclusion was that these all represent “Saul’s armor” that doesn’t fit us. His solution? Prayer and preaching the Word! The cynic in me is tempted to say, “We tried that, and they didn’t work!” Are they Saul’s armor, too? Of course not! But just as we should continue to pray and preach, so Christians must not abandon the political process but see this setback as a call to deeper engagement in the process.
In his dissent, Justice Scalia observed that “Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination” sits on the Court. That fact is a stinging indictment of the evangelical church. We have not set before our youth the vision of serving God by pursuing a career as a judge. We are reaping the whirlwind of our own passivity and lack of engagement. Now is not the time to withdraw to the sanctuary of our churches and institutions (which, in the opinion of the dissenting justices, will come increasingly under threat as a result of this very decision), but to involve ourselves in those public institutions that so shape the culture in which we live.
Second, Christians should continue efforts to evangelize the American people. It has been rightly said that America is a nation whose people are as religious as the people of India but whose government is as secular as the government of Sweden. Because of the separation of Church and State in this country—an increasingly precious Constitutional guarantee—we do not need governmental support in order for the Christian church to be dynamic and flourishing. Revival can come to this country even as its governmental institutions go to hell.
The recent Pew survey on religious affiliation shows that while the mainline Protestant denominations and Catholics are declining as a percentage of the American population, the evangelical church is holding its own and is actually increasing in terms of absolute numbers. For a corrective of the view that America is becoming more irreligious, I recommend the videos of the recent conference at Baylor University on “The End of Religion? An Essential Corrective to the Secularization Myth” https://www.youtube.com/playlist?list=PL0JmtbsEea3iZ6GLoOIsEHrKZUKiZ5J7Z
At that conference Prof. Gordon Melton drew attention to the surprising statistic that it was only by the time of the Second World War that so much as 50% of Americans were church members, and that percentage has continued to increase until today 78% of Americans are church members, a figure which he says is unprecedented among free peoples in the history of the world. Obviously, many of these people are merely nominally Christian. Still, it provides the soil for a revival of living faith in this country.
I think we have yet to see the cultural impact of the revolution in Christian philosophy that has been taking place over the last half-century or so. I am tremendously encouraged by all the letters we receive from people who have come to faith or come back to faith through the medium of apologetics. I remain optimistic about the future and am determined to do all I can through the ministry of Reasonable Faith to help bring about the revival of the church and the evangelization of the American people.