Note: This series is based on a talk given by staff of the US bishops’ Subcommittee for the Promotion and Defense of Marriage at a conference for Catholic marriage and family life ministers in July 2013. It is divided into five sections.
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The June 2013 Supreme Court decisions on marriage, and the need to reframe the debate
Two major Supreme Court decisions on marriage were handed down at the end of June 2013: one on the federal Defense of Marriage Act, or DOMA (United States v. Windsor), and the other on California’s Proposition 8 (Hollingsworth v. Perry). While the decisions were not the “Roe v. Wade moment” for marriage as they could have been – marriage was not redefined throughout the entire country – they were very damaging, to say the least.
The decision regarding Proposition 8 was that the defenders of Prop 8 had no standing in Court, meaning that the Court could not rule on the merits of the case – whether or not Prop 8 was unconstitutional – because the party defending Prop 8 didn’t have the legal ability (or right) to do so.
On the one hand, this was a relief. The Court could have said that Proposition 8 – which defined marriage as the union of one man and one woman in the California state constitution – was unconstitutional, which would have called into question the over 30 state constitutional amendments and statutes saying the same thing.
But the Court in effect gave that question a “pass,” and legal experts are currently parsing out what exactly the ruling means for California.
The ruling in the DOMA case was more substantial and thus more problematic. The Court ruled that section 3 of DOMA, which defined marriage as the union of one man and one woman for purposes of federal law, is unconstitutional. In effect, this means that any marriage recognized by a state – including a “marriage” between two persons of the same sex – will also be recognized by the federal government, such that the 1,000 or so federal laws which use the word marriage – affecting things like estate taxes, immigration, military benefits, and so on – will now define marriage not as the union of one man and one woman but as a state-recognized relationship of any two persons.
For our purposes here, we won’t get into the potential legal ramifications of the Prop 8 or DOMA decision – we’ll leave that to the lawyers and policy experts. Instead, we’re going to use some key themes from the Court’s DOMA decision as a window of sorts into what we’re up against in terms of the current marriage debate. After all, only when we accurately diagnose our culture’s malaise and distortions can we offer an appropriate antidote. For each of the challenges, we’ll offer a tip or tool as a suggestion of how to best promote and defend marriage in your sphere of influence.
(As an explanatory note, when we say “the Court,” we mean the majority opinion of the DOMA decision, delivered by Justice Anthony Kennedy and joined by four other Justices. We’ll also share some counterpoints from Justice Alito and Justice Scalia, both of whom dissented to the Court’s majority opinion.)
Learning from the Court
There are many lessons we can learn from the Supreme Court’s decision in United States v. Windsor (DOMA). This series will look at four of them plus related tips for defending marriage.
Lesson #1: In the marriage debate, there are many, many unspoken assumptions. It’s often the case that the most important questions go unasked and thus unanswered, chief among them the most important question of all – What is marriage?
For example: the opening line of the majority opinion says, “Two women then resident in New York were married in a lawful ceremony in Ontario, Canada in 2007” (p. 1). It goes on to argue that it was wrong of the U.S. federal government not to recognize this marriage and grant the attendant federal benefits.
The assumption hidden here is huge: the Court has taken it as a given that if these two women were “lawfully wed” in Canada, then they’re married. End of discussion. A marriage is a marriage is a marriage because the government (or a governing body) says it is. But for those of us who believe that marriage’s meaning is rooted in the meaning of the human person, created male and female (see Catechism, nos. 1602 – 1605), the question is: “Is it even possible for two women to be married? Is marriage the kind of thing that can actually exist between two persons of the same sex?” But the Court elides those questions, taking for granted that these two women – Edith and Thea – were lawfully, actually married, no question.
We can dig down deeper and uncover other hidden assumptions: assumptions about the body, assumptions about children and procreation, assumptions about freedom and the meaning of rights, and so forth.
So here’s tip number one: We must bring to light what is hidden in the dark by uncovering hidden assumptions and offering alternative readings that do justice to the human person. In other words, we must reframe the arguments to get at the deeper questions, questions that go all the way to the root: Who is the human person?
As another example, the Court argues that the real issue at stake in the marriage debate is equality. The Court doesn’t mince words here. It says, “DOMA writes inequality into the entire United States code” and the “principal purpose” of DOMA is to “impose inequality” (p. 22). In contrast, allowing two persons of the same sex to marry gives them a “status of equality” (p. 14).
The looming, unasked question here is: are these two situations really identical, such that equality demands identical treatment? The Court assumes that the marriage of a husband and wife and the “marriage” of two persons of the same sex are exactly the same thing. (And “assumes” is the right word – the Court does not make an argument that this is the case but just presents it as such).
But we can only address the question of equality after first addressing the question of marriage, a question that is going both unasked and unanswered. In our conversations and communications, we must insist on bringing the debate back to the fundamental question: What is marriage? (see FAQ #3) A phrase we use in our work is: “Treating different things differently is not discrimination.” We can make a case for the uniqueness of marriage between a man and a woman by pointing out that only a man and a woman can form a one-flesh communion and can give themselves fully to each other, including on a bodily level (see FAQ #8). Only a man and a woman are capable of welcoming new life into the world, even though there are times, sadly, when this doesn’t happen for reasons beyond their control. And so forth.
Reframing means not accepting the terms of the debate as given, but digging deeper to get at the real issues, the real questions. So if someone asks you, “Are you for marriage equality?” an answer could be: “Well, what do you think marriage is?” or, less Socratically, “I’m for equality, sure – but I think marriage is unique and needs both a man and a woman; it’s not wrong to treat different things differently,” etc.
Please visit www.marriageuniqueforareason.org for more resources on promoting and defending marriage, including videos, study guides, FAQs, and more. This site is a project of the USCCB Subcommittee for the Promotion and Defense of Marriage. For more information, please email [email protected]