State of Affairs Blog

By: Matthew Dugandzic

It might just be the recent release of Les Misérables, but something about political protests feels very French to me.  (And not just because the French just had their 2nd March for Marriage – La Manif Pour Tous – which drew 1.4 million people last weekend). The French overthrew one king, watched as an emperor took his place, got rid of him, and then suffered through several more decades of chaos while struggling for democracy. In short, they have a strong commitment to social justice, individual liberty, and civil rights.

I was happy to see something of the esprit français yesterday at our nation’s first March for Marriage; many people showed up in opposition to our movement to protect traditional marriage in the law. In their eyes, they were there to defend equality and justice. While I praise them for their strong commitment to fairness in the face of (what they perceive to be) injustice, I fear that there is a deep flaw in their thinking.

Supporters of same-sex marriage, like the French revolutionaries, equate liberty with pure autonomy. “Freedom” is the same thing as “the ability to do whatever you want.” With this as their main moral contention, it is no surprise that they view legal restrictions which seek to uphold man-woman marriage as unjust discrimination against equality.

The point of view outlined above reveals an impoverished understanding of human nature that has two pertinent consequences. Firstly, if one holds that true freedom lies in doing what one pleases, one must also hold that human nature is totally ambiguous and that happiness lies in doing whatever one wants to do. This simply cannot be the case; now matter how many chocolate cakes I want to eat, I can only eat so many before I put myself at risk for heart disease. We human beings are not disembodied minds; we must respect our corporality.

Secondly, if human nature is ambiguous, that means that marriage is as well. For those who support traditional marriage, marriage is an institution that is based in human nature and that precedes the state. Marriage arose in human history because men and women had a tendency to bond with one another and this bonding had a tendency to produce new life. As such, marriage could present itself to the state as a natural institution that brought the next generation into being. The state recognized the potency of marriage and saw that it had a vested interest in protecting the next generation for the good of society. It is only when marriage is understood to have a specific nature, itself based on human nature, that it means anything to the state at all.

Moreover, states often do more than merely endorse or recognize marriage, they integrate it into their legislature so as to protect it and promote it. In doing so, they ensure that a number of benefits follow for the sake of married families and, therefore, for the sake of the states themselves. For example, by singling out marriage as the only human relationship to merit legislation, the state gives marriage pride of place in a society and makes it something for its people to strive for. By requiring married spouses to remain faithful and committed to one another (by disallowing divorce or by making divorce acceptable only in special circumstances), the state assures children that their parents will assume responsibility for them. By allowing married couples tax benefits, the state ensures that married couples will be able to provide for their children.

However, if marriage is ambiguous, then it loses its intrinsic connection to procreation and, therefore, any reason for being subject to legal regulation. If marriage is not protected by the law because of its procreative power, then the law is merely regulating friendship, love, emotional connection, and/or commitment, which the state has no business regulating.

As the social science data on this subject develops, and as people critically consider the potential – and limitations – of their human nature, I hope that more people will begin to recognize the special character of marriage. Hopefully they will see that, by protecting marriage as it is, they are doing their nation a great service because, by extension, they will be doing their best to ensure that every child be brought up by the man and woman who brought him into this world.

Those lovers of equality and justice that I saw at the March for Marriage therefore have nothing to fear from our defense of traditional marriage. To the contrary, defending traditional marriage promotes equality by giving every child the best possible starting-point in life. Furthermore, it promotes justice by providing for every child what he deserves – a loving mother and father.

Matthew Dugandzic is beginning doctoral studies in Christian Ethics at the Catholic University of America.

Editor’s note: In the lead up to the Supreme Court’s hearing of the oral arguments in the Perry case next week, we elected to reprint this piece for its rich discussion of the unprecedented volume of amicus briefs in support of traditional marriage the court received in this case. It originally appeared on March 10 on the Heritage Foundation’s The Foundry blog.

By: Ryan T. Anderson

Scholars have filed more than 50 amicus briefs with the Supreme Court urging it to uphold California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). While the media seems intent on ignoring these briefs and hyping the briefs on the other side, the sheer number and quality of the briefs in defense of laws recognizing marriage as the union of a man and a woman is impressive.

Austin Nimocks, Senior Counsel at the Alliance Defending Freedom, explains the significance:

During the Supreme Court’s 2011-2012 term, an average of only 10 amicus briefs per case were filed. And in the historic landmark case of Roe v. Wade, only 26 total amicus briefs were filed.

By comparison a combined total of 58 amicus briefs were filed in support of Prop 8 and DOMA. The pro-marriage arguments are deep, rich, well-reasoned, common sense- and common good-based, and worthy of serious reflection by the Court and any other American interested in the future of our most important social institution.

Here are just a few of the arguments:

Family law expert Helen Alvare argues that society’s interest in the upbringing of children and marriage’s unique ability to serve that interest explains the government’s involvement in marriage. Tracing the consequences of the past half century’s “retreat from marriage,” and its disparate effects on America’s poor, Alvare argues that redefining marriage to exclude sexual complementarity would cause social harms to increase. The consequences of redefining marriage is the focus of the amicus brief that I filed with my co-authors Robert P. George and Sherif Girgis.

Former U.S. Attorney General Ed Meese responds to charges that marriage laws violate legal guarantees of equal protection and argues that same-sex and opposite-sex relationships are not similarly situated:

Given the near-universal view, across different societies and different times, that a principal, if not the principal, purpose of marriage is the channeling of the unique procreative abilities of opposite-sex relationships into a societally beneficial institution, it is clear that same-sex and opposite-sex couples are not similarly situated with respect to that fundamental purpose.

A group of international jurists and academics points out that not until the year 2000 did any political body recognize same-sex unions as marriages, that even today only 12 non-U.S. jurisdictions recognize same-sex unions as marriages, and that “same-sex marriage is not required by international human rights norms”:

The European Court of Justice, the European Court of Human Rights, the United Nations Human Rights Committee, the French Constitutional Court, the Italian Constitutional Court, the German Federal Constitutional Court, and the New Zealand Court of Appeal have all rejected the notion that same-sex marriage is a constitutional or human right. 

Indeed, a group of historians and other professors explain the historical consensus that existed prior to the year 2000: “While the procedures and incidents of marriage have varied over time and across cultures, its primary form and legal meaning have remained remarkably constant. … Marriage as an opposite-sex institution is a universal phenomenon.”

A team of social science professors present the scientifically robust data that exists on family structure and child wellbeing.

Indeed, the only studies that were based on large, random, representative samples tended to reveal … significant differences in the outcomes of children raised by parents in a same-sex relationship and those raised by a married biological mother and father. What is clear is that much more study must be done on these questions. But there is no dispute that a biological mother and father provide, on average, an effective and proven environment for raising children. And it is reasonable to conclude that a mother and father function as a complementary parenting unit and that each tends to contribute something unique and beneficial to child development.

Eminent political scientists Leon Kass and Harvey Mansfield caution the Court against accepting politicized science: “Claims that science provides support for constitutionalizing a right to same-sex marriage must necessarily rest on ideology. Ideology may be pervasive in the social sciences, especially when controversial policy issues are at stake, but ideology is not science.”

The Attorneys General for 20 states defend the rational basis of their states’ marriage law and the irrationality of redefining marriage: “No limiting principle for excluding other groupings of individuals.” And 37 scholars of federalism and judicial restraint argue that “[p]rinciples of federalism and judicial restraint urge this Court to exercise caution when considering the expansion of constitutional rights in areas of contentious social dispute.” The laboratories of democracy—not unelected judges—should make marriage policy for the nation.

Several briefs argue that trying to cast gay and lesbian Americans as a “suspect class” rests both on bad science and bad politics. For example, Johns Hopkins Hospital and Medical School chief psychiatrist Dr. Paul McHugh explains the academic research on sexual orientation:

Sexual orientation is neither a “discrete” nor “immutable” characteristic in the legal sense of those terms.… Scholars do not know enough about what sexual orientation is, what causes it, and why and how it sometimes changes for the Court to recognize it as the defining feature of a new suspect class.

A brief from the Concerned Women for America points out that gay and lesbian Americans are hardly a politically powerless class. In fact, they have the President of the United States advocating on their behalf. If marriage policy is to be changed, it ought to be done legislatively.

While the media takes little note of their voices, many Americans who experience same-sex attraction are opposed to redefining marriage. Two separate briefs (here and here) make their case.

Likewise, two additional briefs (here and here) argued that laws defining marriage as the union of a man and a woman are nothing like laws that prevented African-Americans and whites from marrying. The Becket Fund for Religious Liberty argues that when courts create rights to same-sex marriage they create new hazards for religious liberty.

Many, many more briefs could be highlighted, and the Alliance Defending Freedom has listed a selection of them here. In the coming days Heritage will spotlight in greater detail these briefs. Marriage matters and the Court should recognize the Constitutional authority of citizens and their elected officials when it comes to making marriage policy.

Ryan T. Anderson is Editor of The Public Discourse and William E. Simon Fellow in Religion and a Free Society at the Heritage Foundation. 

By: Cassandra L. Hough

In December of last year, shortly after the presidential election, ABC‘s George Will asserted on “This Week” that “the opposition to gay marriage is dying.”  Noting that defenders of man-woman marriage tend to be from an older generation, he suggested that public opinion is headed in the direction of favoring same-sex marriage (SSM) as older generations die off.

Many Americans, both those for and against SSM, undoubtedly share the same impression about the future of marriage.  But is this fatalism reasonable?  Should we just submit to the “inevitable,” and give up the marriage issue already? After all, we are constantly hearing that we are on the wrong side of history.

Ryan T. Anderson and Andrew T. Walker answer very clearly in their December 11, 2012 piece “Not Dead Yet”—No, we should not. They raise reasonable objections to such a fatalist approach—objections that are worth revisiting now as we approach the Supreme Court’s consideration of the Perry case, which will decide the constitutionality of California’s Proposition 8.

Conceding that exit polls in the 2012 election did show that the youth vote favored redefining marriage, Anderson and Walker suggest that this is no reason to give up on the marriage question. Rather, we should “redouble our efforts to re-educate a generation of heirs to the sexual revolution’s bitter fruits.”  They draw a comparison between the marriage issue and the abortion debate following Roe v. Wade.  In 1973, everyone thought that the Supreme Court had ended the abortion question with their decision. The front-page headline of the New York Times the following day declared the debate over. But history has proven otherwise.

Over the past 40 years Pro-life advocates have continued to fight intellectual, legal, and cultural battles—and have made substantial progress.  Anderson and Walker note that “[o]n the question of the humanity of the child in the womb, pro-lifers have won the intellectual battle decisively.”  And today’s young people have benefitted from this work by inheriting these arguments which they continue to apply – and sharpen.

Now is the time “to do that work on a new issue,” they conclude, and they like their chances for two reasons.  First, as today’s youth grow up, marry, and have children, they will gain greater insight into the nature of marriage and a greater appreciation for sexual complementarity in marriage, especially in parenting.  An individual’s opinions do not always remain static, but often shift over a lifetime based on new experiences and learning. Second, if the authors are right about the probable harms of redefining marriage, the experience of such a fallout will naturally lead to a reassessment of the question.

While Anderson and Walker’s reasons for having hope about the future of marriage are encouraging, we cannot wait for today’s youth to grow up.  For the sake of the next generation, we cannot afford to get the marriage issue wrong now.

While exit polls and pop culture may suggest that today’s youth is fully on board with redefining marriage (and all sexual norms for that matter), we remain a very impressionable generation.  Even if many young men and women are not apt to listen to the older generations on this issue, they will listen to their peers.  It is easy and exciting to assert independence from one’s elders, but few want to stand alone among their colleagues, friends, or classmates.

Today’s young men and women are not the problem with the marriage question. They are the answer.  If thousands of Millennials were to speak out in defense of marriage, their peers (not to mention the fatalist-minded Baby Boomers) would be forced to think twice about the future of marriage.

The Love and Fidelity Network is working to help this generation gather together to defend marriage this March 26th for the Marriage March in Washington, D.C.  We need to show the Supreme Court that they don’t want another Roe v. Wade on their hands by “deciding” the marriage question for us.  And we need to give a new face to the marriage movement that shows its defenders are not a dying breed, but a vibrant—and growing—movement.

Don’t believe it? Come to D.C. and see for yourself on March 26^th.

Cassandra L. Hough is the Founder of and Senior Advisor at the Love and Fidelity Network.