Happy Canada Day, America! One decade later, your judges have turned you, too, into a nation of bastards.
I don’t mean that in quite the usual sense, of course—you’ve been doing a fine job yourselves, without any help from us, of turning out fatherless children. I mean rather that you’ve just lost the one institution that recognizes at law that the natural family is not a creature of the state. You’ve reversed the natural order: family, society, state. Now it is state, society, family, and in consequence natural or pre-political rights have been voided.
Some years ago I wrote to my countrymen in Nation of Bastards that “divorce from traditional marriage has had just the consequence we should have expected: it has landed us in a nasty custody battle between the state and the natural family unit for the country’s children.” Americans, I added, “can look forward to the same thing if they follow us down the same path.” Well, now you have, and I advise you to reckon frankly with the consequences.
This custody battle is not only a battle for the hearts and minds of young people, as some may imagine. It is a legal and political battle with implications for every citizen. For marriage is not merely an institution of restraint, essential to the moral fibre and discipline of society. It is also an institution in which society invests some of its most important ideals of freedom. Freedom itself is at stake in the anti-marriage revolution, from which the state will emerge either appropriately humbled before its citizens or dangerously exalted. (ibid., p. 1)
At the moment it certainly looks like “dangerously exalted.” The minority in Obergefell, outraged by what they see as a “judicial Putsch,” spills a great deal of ink in defense of democratic freedom. That’s well and good, but it misses the key point. There is something prior to democracy itself, and to democratic man. And that something is the natural family.
There has indeed been a judicial Putsch, and it is a matter of great consequence for your county—but not, I would suggest, of equal consequence with the demise of the natural family as a legally recognized limitation on the power of the state. The blow to American democracy is a heavy one, but the blow to basic human rights and freedoms is still heavier. The judiciary has badly over-reached itself, yes; but, more importantly, the state as such has over-reached itself. Infighting between the branches of government is, relatively speaking, a side-show.
I hope, by the way, that subsequent analysis of Obergefell will not overlook the fact that the court did not even bother to define the marital institution that it castrated. Not one of your Nine Riders made any serious attempt at definition. Justice Scalia even said that it was of no great importance to him what the law calls marriage or says about marriage. Justice Kennedy, to be sure, sidled up within kissing distance of a definition: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” That, however, remains hopelessly inadequate, as Scalia noticed. Marriage, whatever it is, entails an enduring bond of a kind that permits two people to discover freedoms of expression, intimacy, and spirituality? Perhaps, but that sounds like no more than a very weak echo of Christendom’s marital sacramentum, absent its proles and perhaps even its fides. It isn’t much to go on.
Obviously the majority’s working model for marriage is of the “close personal relationship” or CPR genre, but just as obviously the majority doesn’t quite know how to distinguish it systematically from other CPRs. A definition may be beyond its intellectual reach, whether or not it is beyond its mandate. The minority did a little better in Justice Alito’s dissent. Alito at least observed that the majority’s “understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is . . . not the traditional one,” which is “inextricably linked to the one thing that only an opposite-sex couple can do: procreate.” But still no definition of marriage is offered. More than a hundred pages of legal discourse about something that is never clearly identified or defined!
In Canada, if on this day you’ll permit me a bit of bragging, we know how to do this: Marriage used to be “the voluntary union for life of one man and one woman, to the exclusion of all others.” It is now “the lawful union of two persons to the exclusion of all others.” How difficult is that? (It is worth noticing, in passing, that with this definition Canada kept the fides while dropping both the proles and the sacramentum. Still, you may borrow it, if you like. It is pretty much what the majority is looking for, and it doesn’t suffer from the vagaries that Scalia excoriated in Kennedy’s rhetoric.)
But here’s something else that struck me: Both the majority and the minority kept slipping back and forth, quite unconsciously, between “the right to marry” construed as an individual autonomy right and “the right to marry” construed as the right of a couple. Did this not warrant even a moment’s thought? By long-standing international precedent, the right to marry is the right of an individual, not of a couple. Licenses are issued to two people, both of whom have decided to marry and intend to marry each other in a lawful union, but “the right to marry and to found a family” is a right of “every one” (thus article 16 of the Universal Declaration), not of “any or every two.”
And this makes a difference to the whole argument. Even the Obergefell minority used the language of “extending marriage” by enabling same-sex marriage. But (as I argued in Divorcing Marriage) you can't extend something that is already universal. You can only change it from one thing to another, or rather exchange one thing for another; in this case, marriage as the union of a man and a woman for marriage as the union of two persons. Or perhaps, as Chief Justice Roberts points out, more than two persons.
I do wish the dissenting minority had reckoned with this, for it would have strengthened their case considerably. When we make marriage a couple's right rather than an individual right, while thinking of marriage as a CPR to which proles is strictly optional, the same-sex marriage problem immediately arises, and arises in a form to which the only just solution is indeed the Court's solution. If, on the other hand, we maintain that marriage is an individual right, and acknowledge that it is already universal, then there can be no question of “extending” it, whether by same-sex marriage or by any other means.
The question “right to what?” remains, of course, and is indeed much more difficult to ignore. The court’s answer, when distilled, is “right to a CPR sanctioned by the state,” for that is what the majority seems to think marriage is. And what governs this answer? Not a doctrine about the family but rather a doctrine about dignity. To be more precise, a doctrine that human dignity rests on what one thinks of oneself, which rests in turn on what others think of one, which rests at last on the support and goodwill of the state. For the court commits itself to the notion that individuals of homosexual inclination can attain “equal dignity” with other individuals only if they too are allowed sexual relationships celebrated by the state. Justice Thomas rightly complains that the court thus “rejects the idea . . . that human dignity is innate and suggests instead that it comes from the Government.”
This doctrine, the Obergefell doctrine, explains why the court must slip back and forth between marriage as an individual right and as a couple’s right, all the while ignoring the fact that the only thing we ought to be thinking of when speaking of a “couple’s right” is that marriage entails the right to found and rear a family. The court, of course, treats reproduction as strictly inessential to marriage. It has to, since here it cannot put homosexual unions on equal footing with heterosexual ones, except by pretending that children appear magically along with marriage licenses.
Perhaps they will, when reproduction itself has been largely absorbed, in Huxleyan fashion, into the technocratic state. Meanwhile it is necessary to assume, as Alito perceives, that families are constructs of the will alone and not of nature. Everyone knows (though few admit) that we have been doing that for some time, ever since we normalized contraception and abortion and divorce, thus embracing the undisciplined sexual coupling that the institution of marriage is supposed to resist.
Which brings us back to the main point, namely, that marriage has now been deprived at law of its very connection to nature. It is not just that it is no longer for disciplining sex but rather for celebrating sex. It is not just that it is no longer about the welfare of children but rather about the feelings of guilt-laden adults, projected unto children. And it is certainly not just that the courts have seized from legislatures the duty to say what marriage is. The most crucial consequence of Obergefell is that marriage is no longer a pre-political institution at all, embodying and protecting fundamental natural rights connected to procreation and child-rearing, but is rather an exclusively political institution, embodying only state-dispensed rights and freedoms.
Obergefell makes every American, in that sense, a ward of the state, stripped of his or her primordial and familial defenses against the encroachment of the state. It may be one of the most incoherent judgments ever delivered by SCOTUS, but there is a logic to it nevertheless, the tyrannical effects of which will unfold inexorably unless and until it is overturned by some later revolution.
Once again, Happy Canada Day, you fellow bastards!
Douglas Farrow is professor of Christian Thought and Kennedy Smith Chair in Catholic Studies at McGill University and a member of First Things ’ advisory council.