The Supreme Court and the Assault on Marriage E-mail
2004 Spring


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These words, which most educated Americans will instantly recognize as the Preamble to their Constitution, represent the fortuitous coincidence of great ideas and beautiful prose.

America is a society of “People.” She is not a loose aggregate of individuals. She is a “Union,” not a collectivity of fragments. She wants “domestic Tranquility,” not discord between intransigent individualists. She is dedicated to “Posterity,” not to satiating herself in the present.

The Preamble makes it clear enough, as it enumerates its list of great philosophical ideas, that it recognizes man as a social being, one who fulfills himself, attains his happiness and discovers his meaning not in isolation from others, but through ordered cooperation with his fellow citizens. The founding fathers of the Constitution did not contemplate that it would ever be necessary to amend the spirit of the Constitution that its Preamble embodies.

So it would seem. But the sword can be mightier than the shield.

When the 1857 Taney Court ruled, by a 7-2 vote, that according to the Constitution, a black man is “property,” Justice Benjamin Robbins Curtis, in his dissent, made the following comment: “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).

In his lengthy and well-reasoned dissent, Justice Curtis did not lose sight of either the letter or the spirit of the Constitution: “That Constitution was ordained by the people of the United States . . . These colored persons were not only included in the body of ‘the people of the United States,’ by whom the Constitution was ordained and established, but in at least five States they had the power to act, and doubtless did act, by their suffrages, upon the questioning of its adoption. It would be strange if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established.”

Justice Curtis was showing admirable restraint in his employment of the word “strange.” In his actions, he showed less restraint. He protested the infamous Dred Scott decision by resigning from the Supreme Court. He returned to Boston and to a private law practice. His thought, his integrity, and his legacy should not be forgotten.

He knew what was expected of him as a defender of Justice. He knew that politics is no better than the philosophical ideas on which it is founded.

The Constitution rightly insists that politics be founded on Justice. Lincoln knew this and expressed the matter in prose that is not only eloquent, but compelling. Concerning the issue brought to the attention of the Taney Court, Lincoln said: “Slavery is founded on the selfishness of man’s nature—opposition to it on his love of justice. These principles are in eternal antagonism; and when brought into collision so fiercely as slavery extension brings them, shocks and throes and convulsions must ceaselessly flow.” The alternative to reason is violence. The alternative to living by the Great Ideas is barbarism.

“Political reasons have not the requisite certainty,” wrote Justice Curtis, “to afford rules of judicial interpretation.” What are these “political reasons” that are detached from the notion of justice that undergirds the Constitution? “They are different in men. They are different in the same men at different times,” as Justice Curtis reminds us. They are legion: convenience, popularity, fashion, preference, private interest, partisan power, ideology, and so on. Justice Clarence Thomas would write in Foster v. Florida (2002), that “this Court . . . should not impose foreign moods, fads, or fashions on Americans,” a comment that Justice Scalia would reiterate in Lawrence et al. v. Texas. “Politics without principle,” said Gandhi, is one of the “Seven Deadly Sins of the Modern World.”

Two days prior to the reading of the Dred Scott decision, America’s 15th president, knowing in advance what the Taney ruling was going to be, provided, in his inaugural address, as clear an example of politics without philosophical principle that is possible to imagine. Turning his attention to slavery, President Buchanan said: “A difference of opinion has arisen in regard to the point of time when the people of a Territory shall decide this question for themselves.” Then, in a studied attempt to appear democratic, open-minded, and accepting, made the following thoroughly disingenuous announcement: “This is, happily a matter of but little practical importance. Besides, it is a judicial question, which legitimately belongs to the Supreme Court of the United States, before whom it is now pending, and will, it is understood, be speedily and finally settled. To their decision, in common with all good citizens, I shall cheerfully submit, whatever this may be.”

In 1973, by a similar 7-2 vote, Roe v. Wade found something no one else had found for nearly 200 years “implied in the penumbra of the Constitution,” namely, a woman’s right to abortion established on her right to “privacy.”

It was, in the view of dissenting Justice Byron White, “an act of raw judicial power,” the kind of highly politicized judgment that Justice Curtis had inveighed against. There is no such provision in the Constitution or in constitutional principle. Constitutional lawyer John T. Noonan, Jr. states in his book that bears the intentionally sardonic title, A Private Choice, that Roe v. Wade reduced the woman to “a solo entity unrelated to husband or boy friend, father or mother . . . She was conceived atomistically, cut off from family structure.” The legal and cultural processes advancing the “institutionalization of individualism” were well on their way.

Justice Harry Blackmun, who wrote the majority decision in Roe v. Wade, wrote the dissenting position thirteen years later in another deeply significant case, Bowers v. Hardwick (1986). In this case, the issue before the Court centered on the constitutionality of laws against sodomy. By a 5-4 vote, those laws were upheld. Blackmun, in his dissent, and citing Olmstead v. United States (1928) argued that “the most comprehensive of rights and the right most valued by civilized men [is] the right to be let alone.” He reiterated his own principle articulated in Roe v. Wade about the “right to privacy” and cited, approvingly, another pro-abortion decision which stated, “[T]he concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole” (Thornburgh v. American College of Obstetricians and Gynecologists (1977).

Blackmun’s willingness to reduce all human beings—or at least, American citizens—to the curious state of non-social individual atoms contradicts not only the spirit of the Constitution as embodied in the Preamble, but also contradicts what we know about the intrinsically and ineradicably social nature of the human person. “It is not good for man to be alone” has far more than a theological ring. It is the common agreement of psychiatrists, psychologists, sociologists, historians, and anthropologists, that the human being is a person who is simultaneously unique and communal. If there is a “moral fact,” it is that a human being is not an island of liberty, an atom of autonomy, but a person who expresses his integrity and realizes his authenticity in the context of a society. It is surely not in the spirit of the Constitution to disenfranchise people from the status of being “People” while reducing them to the status of mere individuals. The Constitution does not contain within itself a provision for self-implosion.

The majority in Bowers v. Hardwick upheld anti-sodomy laws—including those that proscribed homosexual sodomy—in part, because it was in the interest of preserving the good of the family to do so. Responding to this contention, Blackmun offered a most astonishing line of thinking, arguing that, “We protect those rights not because they contribute, in some direct or material way, to the general public welfare, but because they form so central a part of an individual’s life.” “We protect the family,” he wrote, “because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households.”

Putting aside his impertinent and cynical description of the family as a “stereotypical household,” what is more significant, in this analysis, is Blackmun’s facile reduction of the joys of family life to the segregated joys of its component individuals. He speaks of “the ability independently to define one’s identity,” as if a man becomes a husband without a wife, or a wife becomes a mother without a partner who fathers the child, and a married couple attains parenthood apart from having children. The family, properly understood, is an organic unity. It represents shared life, what the ancient Greeks meant by the word zoe,” as opposed to “bios,” their word for unshared life as it exists within each individual living thing.

Neither Blackmun, nor his like-minded kin, seem to be able to grasp the notion of a bond, as it appears (for example) in the “bond of matrimony” in which two people willingly and often happily begin to live as a two-in-one flesh couple, or husband and wife, or as two who are joined together in wedlock in such a way that they share their life together, no longer as purely distinct individuals, but as a union of two persons. A married couple is not a “juxtaposition of solitudes,” but a “communion of persons.”

For Blackmun, if marriage were construed as a bond between husband and wife that transcended individualism, it was not to be understood as a reality that must be honored, but as a political cause that must be avoided. Accordingly, and citing the landmark Griswold v. Connecticut case of 1965, he stated, “And so we protect the decision whether to marry precisely because marriage ‘is an association that promotes a way of life, not causes; the harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects.’” His panegyric to “liberty” as “the ability independently to define one’s identity” leaves one to believe that a man becomes a husband and a father independently of his intimate cooperative involvement with his wife who becomes the mother of his children.

The absolutization of liberty conceived as independence from everything, was not achieved, however, until 1992 when, in the Planned Parenthood v. Casey decision, the Majority informed the “people of the United States,” that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” Given such spacious and unchecked liberty, legal analysts were left to ponder whether it rendered the rule of law either obsolete or unenforceable.

Can the “rule of law” survive in a nebulous atmosphere that is simultaneously antinomian, acosmic, and asocial? Did the framers of the Constitution envision the typical American exercising his freedom within a solitary dream world or by his contribution to the common good?

Justice Antonin Scalia would later refer to this allusion to unbridled liberty as the “passage [that] ate the rule of law.” Such wooly thinking, writes Robert Bork in Slouching Towards Gomorrah (1996), was “intended, through grandiose rhetoric, to appeal to a free-floating spirit of radical autonomy.” And at the close of The Tempting of America (1990), he offered sober advice to judges who have fragmented the human being into a private and asocial atomic unit: “Those who made and endorsed our Constitution knew man’s nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask our judges to adhere.”

The Casey ruling rendered “invalid” the claim that a husband be notified about the impending abortion of his children in the womb. Such a claim, said the Court, “constitutes an undue burden” on the pregnant woman. “It cannot be claimed,” the Court went on to declare, “that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty.” Here the woman’s liberty to kill trumps her husband’s fatherly responsibility to protect the life of his own child. In so stating, the Court unravels marriage by creating such a broad disparity between husband and wife that marriage in the form of a unity of two equal persons is no longer viable. The Court emphasized this point in its declaration that a marriage in which the father should be notified about the impending abortion of his child is “repugnant to this Court’s present understanding of marriage and the nature of the rights secured by the Constitution.” If this decision is not tantamount to the Court’s opinion that marriage is essentially unconstitutional, it is exceedingly and dangerously close. And this narrow gap was made even smaller by the 1992 Lawrence et al. v. Texas (July, 2003) decision that overturned the Bowers v. Hardwick ruling.

Writing for the Majority in the Lawrence case, Justice Anthony Kennedy cited the infamous “mystery passage” (which Scalia lampooned as the “sweet-mystery-of-life passage”) as a way of explaining “the respect the Constitution demands for the autonomy of the person in making these choices [homosexual sodomy].” “Persons in a homosexual relationship may seek autonomy for their purposes, just as heterosexual persons do.”

The Lawrence decision, by finding a right to sodomy in the Constitution (but apparently not for marriage as it is properly understood), relied on a principle of liberty so broad that it would apply equally and logically to the right to homosexual marriage as well as to polygamy and incest. Nonetheless, the Court pretends that such application will not obtain and that we need not fear the judicial imposition of homosexual marriage. To this groundless claim, Justice Scalia warns in his dissent, “Do not believe it.” After dismantling as morally significant the difference between hetero- and homosexual congress, what reason is left for the Court to deny the benefit of marriage to homosexual partners who, in their Constitutionally protected liberty, choose to marry? For Scalia, who in reference to this point is merely applying logic, there is none, but only “if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many hope that, as the Court comfortingly assures us, this is so.”

Of course, there is no comfort in knowing that the Supreme Court is trying to bury heads in the sand. The logic is simply this: Since the People of the United States are merely radical, antinomian individuals, a real marriage between a man and a woman is unconstitutional, whereas a newly defined kind of right for same-sex couples to “marry” is constitutional.

If we are to apply logic to this peculiar notion that the Supreme Court has been developing with regard to the human being as an essentially atomic entity, we begin to see that the Constitution is actually more congenial to same-sex unions than it is to those that are heterosexual.

Same-sex unions are, by nature (we are excluding technological forms of reproduction), sterile. As such, no offspring can be conceived to create a disparity between the pregnant woman’s “right to choose” and the father’s absence of such a right. The heterosexual union, which is fecund by nature, contains the troubling potential of putting the partners at odds with each
other as well as with the Constitution. Once the woman becomes pregnant, in this peculiar perspective of the Supreme Court, she becomes alienated from her husband while her husband becomes alienated from the Constitution. In the interest of preserving a strict equality of rights between married partners, then, the same-sex relationship becomes preferable. Same-sex partners by virtue of being the same sex remain that way and do not become differentiated as mothers and fathers (or even, strictly speaking, as wives and husbands). But it is in becoming specifically mothers and fathers that the heterosexual partners put themselves at odds both with each other as well as with the United States Constitution.

In reflecting on the Bowers decision that upheld anti-sodomy practices, Robert Bork made the following comment: “It has never been thought, until the rampant individualism of the modern era, that all individuals are entitled, as a matter of constitutional right, to engage in any form of sexual behavior.” Indeed! The Majority observed that if the voluntary sexual conduct between consenting adults is unlimited, then it would be difficult (or at least illogical) to prosecute individuals on charges of bigamy, adultery, incest, and other sexual crimes that take place in the home.

If the Court is guilty of illogic, as in the Lawrence case, it is not an oversight that everyone else will share. Tom Green, for example, is currently serving a prison sentence on four counts of bigamy. In documents filed with the Utah Supreme Court, Mr. Green’s lawyer is arguing that an application of the Lawrence ruling shows that bigamy, along with sodomy, is a constitutionally protected right. The Utah Civil Liberties Union agrees and has provided the state’s highest court with an amicus curiae brief.

Since the Lawrence decision, Jon Carroll has called for legalized polygamy in the San Francisco Chronicle, Judith Levine has made a plea for group marriage in the Village Voice, and Michael Kinsley—a mainstream journalist—has called for the legal abolition of marriage.

The New York Times published a “Week in Review” article juxtaposing photos of Tom Green’s family with sociobiological arguments about the naturalness of polygamy and promiscuity. Same-sex marriage proponent Adam Goodheart adduces the purpose of the Supreme Court as “that of cleaning out the dust of the past and remaking the world afresh” (New York Times, July 3, 2003, op-ed page).

Stanley Kurtz, in “Beyond Gay Marriage” (The Weekly Standard, August, 2003), documents the effort at a “polyamory” offensive (group marriage—see Deborah Anapol’s book, Polyamory: The New Love Without Limits) that a determined coterie of legal scholars, academicians, and activists are making, who are using same-sex marriage as their Trojan Horse. Writing for Social Justice Review (Jan.-Feb., 2004), Robert Valente sees such an effort—congruent with and buttressed by recent Supreme Court decisions—as making “marriage, in all but name, thus effectively annihilated.” Kurtz, himself, expresses the fear that “What lies beyond gay marriage is no marriage at all.”

The creators of America’s Constitution understood, as did Aristotle more than two millennia ago, that man is a social being (zoon politikon). He is not at liberty to live for himself exclusively. He is a person who is both unique and communal. He takes his place among other unique people who work together for the common good. So inclined by nature is the human being to social alliances that one of these alliances, called “marriage,” represents a union of such profound I-Thou intimacy that the time-honored expression, “two-in-one flesh” aptly captures its nature. Moreover, the science of immunology has affirmed on a physiological level the objective reality of this two-in-one flesh unity. Commenting on the Lawrence decision, Professor William E. May, of the Pope John Paul II Institute for Studies on Marriage and Family, states that “the majority opinion completely ignores the intimate bonds between sex, marriage and generation of new life. It is blind to the indispensable contribution married men and woman make to the common good of society.”

The contributions of immunology in shedding additional light on the nature of two-in-one flesh warrants further elaboration. Our immune system, certainly one of the great marvels of nature, equips us with 100 billion (100,000,000,000) immunological receptors. Each of these tiny receptors has the uncanny natural capacity to distinguish the self from the non-self. Consequently, they are able to immunize or protect our bodies against the invasion of foreign substances that could be harmful to us.

Marvelous as nature is, it is never extremist. From a purely immunological point of view (from the standpoint of an all-out defensive strategy), a woman’s body would reject the oncoming sperm, recognizing it as a foreign substance. But this is precisely the point at which nature, we might say, becomes wise. If our immune system regards sperm as a potential enemy, then fertilization would never take place, and the human race would have come to an early demise with the passing of Adam and Eve.

But something extraordinary occurs, which makes fertilization and the continuation of the human race possible. Traveling alongside the sperm in the male’s seminal fluid is a mild immunosuppressant. Immunologists refer to it as consisting of “immunoregulatory macromolecules.” This immunosuppressant is a chemical signal to the woman’s body that allows it to recognize the sperm not as a non-self, but as part of its self. It makes possible, despite the immune system’s usual preoccupation with building an airtight defence system, a “two-in-one-flesh” intimacy.

Now that sodomy is talked about as a human right to be exercised by male same-sex couples without discrimination, we may ask how it compares, immunologically speaking. Male sperm, being blissfully unresponsive to political ideologies or cultural trends, go right ahead and behave strictly according to their nature. They penetrate the nucleus of whatever body cell (somatic cell) they might encounter. This fusing, however, does not result in fertilization, the first stage in the life of a new human being, but, as scientists have shown, can and does result in the development of cancerous malignancies.1 Furthermore, the immunosuppressant aspect explained above does not have the same protective effect; instead, an “immunopermissive environment” is created, as if the immune system becomes confused and welcomes its enemies.

Depositing sperm in the “wrong place” (like pouring motor oil into the gas line), by nature’s standards, is courting disaster. Nature, we might add, demands respect. It does not make accommodations to politically based ideologies or individual preferences. From nature’s standpoint, there is no equality between heterosexual and male homosexual intercourse.

The same-sex issue is hotly contested. This is par for the course when it
comes to moral issues. All too often, as it is commonly said, there is far more heat than light. In order to bring some measure of objectivity to the discussion, a close observation of nature, such as science can provide, is extremely helpful. Science, like nature, is immune to political or fashionable trends. But in looking closely and carefully at what the science of immunology can tell us, we have even more reason for upholding and honouring the wisdom of marriage as a union of a man and a woman. And what is more, we have added reason to feel awe when we re-read the first chapter of Genesis, which refers to marriage as a union of “two in one flesh.”

A variety of Supreme Court decisions, beginning with Roe v. Wade in 1973, have indicated a significant drifting away from both the spirit of the Constitution, especially as it is embodied in its Preamble, as well as from the social nature of the human being, as understood throughout history. The current mood (and it is truly more a mood than a philosophical grasp of man and society) of radical individualism fails to support the bond of matrimony, a personal union that is generally regarded as forming the basic unit of society. As marriage is usurped by radical individualism, the family becomes weakened, and society suffers proportionately.

In his 1857 inaugural address, President Buchanan remarked that thanks to the Taney Court, the issue of slavery would be “speedily and finally settled.” Has a president and a Supreme Court ever been more egregiously wrong about an issue of such transcendent importance? Perhaps not. But can we be so sure? Four decades of intense antagonism that began in 1973, in the name of “liberty,” have obviously not “speedily and finally settled” the issue of abortion. In fact, it has created a slew of new contentious issues, involving the very meaning of the person, marriage, the family, and society. Now the very credibility of the American government is at issue. The Dred Scott decision hastened the arrival of the Civil War. A prolonged Culture War has been raging in America since 1973 (or perhaps since 1965 with Griswold v. Connecticut). If a woman truly does have a constitutional right to abortion, then it becomes increasingly clear, with one Supreme Court decision after another, that marriage and the family are unconstitutional, and society is nothing but a collectivity of individuals with certain groups of individuals having special rights that others do not have.

One liberty must be balanced against another. Liberty is possible, but not all conceivable liberties are compossible. The liberty to care should take precedence over the liberty to kill. So too, the liberty of the family should supercede the liberty of errant individuals.

John T. Noonan, Jr. has pointed out that “The Liberty of abortion became larger than any liberty located within the family structure.” Liberty preserves its value not when it is isolated from responsibility, but only when it is wed to it. It is not good for either man or liberty to be alone. In divorcing great ideas from their complementary and vivifying counterparts, the Supreme Court has created a dynamic rift that ever increasingly separates wife from husband, parents from children, family from society, and individuals from the common good. It is a self-destructive process and desperately cries out for remedy.

The Supreme Court has been usurping the democratic process. “We should get out of this area, where we have no right to be,” writes Justice Scalia in his dissent from the Casey ruling, “and where we do neither ourselves nor the country any good by remaining.”


1. In an article entitled, “Sexual Behaviour and Increased Anal Cancer,” published in Immunology and Cell Biology, authors Richard J. Ablin and Rachel Stein-Werblowsky report that “anal intercourse is one of the primary factors in the development of cancer.” According to the prestigious New England Journal of Medicine, “Our study lends strong support to the hypothesis that homosexual behaviour in men increases the risk of anal cancer.” In addition, the International Journal of Cancer finds that “Being single and having practised anal intercourse appears to be associated with anal cancer and case reports have suggested a recent increase in the number of cases of anal cancer.” The medical references are legion.