Recently, the US Supreme Court handed down its decision in Obergefell v Hodges, deciding by the predictably narrowest majority of 5-4 that same-sex couples had a constitutional right to marry, and that the right is protected under both the due process and equal protection clauses.
Eleven of the 50 states, as well as the District of Columbia, had already legislated to recognise the right of same-sex couples to marry. Justice Scalia in dissent observed, 'Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views.'
There is much about the judicial reasoning in the case that would raise eyebrows among lawyers not used to the judicial activism of the liberal majority of the US Supreme Court which has long viewed the due process and equal protection clauses as a vehicle for legislating their preferred view on contested political and social issues. Writing for the five liberal judges, Justice Kennedy used poetic, but not very judicial, language when he commenced his judgment with this stirring call to judicial arms: 'The Constitution promises liberty to all within its reach.’
This was altogether too much for Justice Scalia in dissent. He wrote, 'The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.'
With pastoral sensitivity for same-sex marriage advocates and not wanting to rain on their parade, Chief Justice Roberts, also in dissent, retained a clear vision of what ought be the court’s limited role, observing, 'But this court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.’
Another of the four dissenters, Justice Alito highlighted the perils of a broad-brush judicial determination constitutionalising the right of same-sex marriage, short-circuiting the more nuanced debates which could go on in parliaments. He rightly highlighted that the decision will 'be used to vilify Americans who are unwilling to assent to the new orthodoxy,’ pointing out that the majority 'compares traditional marriage laws to laws that denied equal treatment for African-Americans and women’.
In short, it is regrettable that the Supreme Court took it upon itself to discover a definitive answer in the silent Constitution on this contested social question, because there can be no doubt that the democratic process was taking US society in only one direction on the issue.
The court, by intervening and deciding the issue unilaterally, has reduced the prospects of community acceptance and community compromise about the freedom of religious practice of those who cannot embrace same-sex marriage for religious reasons. Alito is right when he assumes 'that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.'
There will be years of litigation now about the right of religious bodies to restrict services only to couples who marry in accordance with the institution's religious creed. It will all be nasty and hard fought.
Same-sex marriage is or soon will be a legal reality in all well-educated, developed societies in the foreseeable future. It is imperative that the Church continue to advocate the ideal of sacramental marriage for a man and a woman who are believers wanting to commit themselves to each other before God open to the bearing and nurturing of each other’s children according to the law of Christ and His Church. It is appropriate that the Church continues to espouse the ideal that children be nurtured in a family unit by their known biological mother and known biological father, while extending pastoral solicitude to all families and to all children, including the hundreds of thousands who are already being raised by same-sex couples.
Our bishops need to accept that the contours of civil marriage have not been identical with the attributes of sacramental marriage for a very long time. Perhaps part the episcopal fear is that even those married in Church have little understanding of the difference between the two institutions, and many of the clergy are ill-equipped to explain the difference.
Whatever one’s misgivings about Justice Kennedy’s judicial technique, there can be no faulting his pastoral sensitivity to those same-sex couples who have felt alienated and marginalised for too long. Our bishops would do well to replicate the pastoral tone at the conclusion of his majority judgment:
'No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilisation’s oldest institutions.'
As Pope Francis said in that mid-flight media conference: ‘Who am I to judge?’
Frank Brennan SJ | 02 July 2015 | Reproduced with permission from Eurekastreet.com