Michael D. Dean

Michael Dean is an attorney who litigates in defense of Christian liberties.

The Supreme Court has come to behave more like autonomous philosopher kings than judges. On June 26, 2015, the Court completed its abandonment of the intellectual foundations of Western civilization, deciding in Obergefell v. Hodges that marriage is not a pre-political human institution that, as Chief Justice Roberts dissented, "arose in the nature of things," but is rather an instrumental creation of positive law that those in power may define however they see fit.

Obergefell makes clear that the Court has lost all self-restraint. Nothing in society or culture any longer escapes its ubiquitous deployment of equal protection and due process. There is nothing off limits it is unwilling to deconstruct and refashion in the image of its own predilections.

The Court's jurisprudence did not spring full-blown from the head of William Brennan or Anthony Kennedy. It was birthed and nurtured in the halls and salons of 18th and 19th century academics and intellectuals who, weary of the sober constraints of their Aristotelian and Thomistic heritage that man flourishes by understanding the nature of things and conforming his conduct accordingly, seized control of their own evolution to remake man, not as he is, but as they dreamed he might be.

Natural Law Construct

Whether from Aristotle's empiric conclusion that man, like all substances, has an inherent nature and develops accordingly, or from Judeo-Christian tradition that man is created in and subject to the image and law of God, it has been understood throughout Western history that marriage between man and woman is inherent in human nature and exists for two complementary and inseparable purposes - the happiness and flourishing (eudaimonia) of the man and woman who comprise it, and the creation and education of children as the natural consequence and responsibility of its most intimate expression. In other words, marriage is not created by the state. It is only recognized and regulated by the state, if at all, in a manner consistent with its nature.

In sociological terms, this is the "conjugal" view of marriage. In most cases actually, and in all cases symbolically, marriage is not only about gratification of the partners and fulfillment of their psychological and physical needs. It is, inherently, also about the perpetuation and flourishing of the human race and community itself - the production and education of children - the achievement of their happiness, and fulfillment of their needs.

That understanding of marriage existed in early American law as part of a worldview grounded in historic Judeo-Christian and natural law traditions. Typical of scores of early state court decisions, the court observed in Overseers of Poor of Town of Newbury v. Overseers of Poor of Town of Brunswick (Vt. 1829) that marriage is "one of the natural rights of human nature, . . . ordained by the great Lawgiver of the universe . . . ." In Gentry v. Fry (Mo. 1835), the court stated:

Bacon defines [marriage] to be: "a compact between a man and a woman for the procreation and education of children." . . . . Rutherford declares it: "a contract between a man and a woman . . . for the purposes of their mutual happiness and of the production and education of children." . . .

It requires . . . masculine and feminine . . . a man and a woman. Two men cannot make it. Two women cannot - only one man and one woman . . . [for] their mutual happiness, and the production of children . . . the propagation of the human species, and the happiness of man.

In Baker v. Baker (Cal. 1859), the court noted the same two purposes:

Again, the first purpose of matrimony, by the laws of nature and society, is procreation. . . . The second purpose of matrimony is the promotion of the happiness of the parties by the society of each other[.]

In Stevenson v. Gray (Ky. 1856), the court explained that marriage is founded in nature, is ordained to perpetuate the human race, and is "the foundation not only of all social order and refinement, but of the continued existence of society and of nations."

In the late 19th century, still within historic Western traditions, the Supreme Court rejected the Mormons' argument that the Free Exercise Clause entitled them to practice polygamy. In Reynolds v. United States (1878), the Court explained that monogamous marriage - one man and one woman for life - is vital in maintaining a free society, and that polygamy leads to despotism in societies that tolerate it. In Davis v. Beason (1890), the Court declared that polygamy was not protected under the Free Exercise Clause because "the general consent of the Christian world in modern times" recognized it as a crime.

Positive Law Construct

Societies change over time, more or less in concert with changes in the fundamental cultural conceptions that cohere and guide them. Competing perspectives emerge to challenge dominant worldviews and, because law is a function of culture, as worldviews change, legal perspectives change with them, sometimes as effect, sometimes as cause.

The intellectual ferment of the 18th and 19th centuries bore legal fruit in the 20th with the rejection of historic Judeo-Christian and Western traditions. In Lynch v. Donnelly (1984), the Supreme Court's reasoning reflected the official disestablishment of Judeo-Christian intellectual and cultural heritage, concluding that the Establishment Clause permitted government display of a crche among a wide assortment of holiday claptrap, but prohibited its display alone because that would appear to express preference for or "endorse" religion. Even that was too much for Justice Brennan, who complained in dissent:

By insisting that such a distinctively sectarian message is merely an unobjectionable part of our "religious heritage," . . . the Court takes a long step backwards to the days when Justice Brewer could arrogantly declare . . . that "this is a Christian nation."

Concomitant with the rejection of Christianity was rejection of its view of man. In place of the conception of man as a divine creation or natural "substance" subject to the characteristics and constraints of his inherent nature, the courts adopted the 18th- and 19th-century conception of man as an ever-evolving accident bent on his own survival and gratification on his own terms.

In law as in culture, it is always the foundations, the presuppositions, which erode first. Traditions like marriage stagger on for a time out of inertia, but once the rationale is gone, traditions and habits eventually collapse because, in the end, mere tradition is never a sufficient justification for anything. Thus, the new conception of man logically yielded a new conception of marriage. Marriage is no longer a pre-political institution created by God or inherent in the nature of things, essential for development and flourishing of individuals and culture in conformance with the inherent characteristics and constraints of human nature. It is a political institution created by man for his own ends, as he sees fit.

In sociological terms, this is the "relationship" view, in which marriage is an instrumental construct of positive law, created to meet the needs of the partners, in which production and education of children for perpetuation of the race is an incidental, not essential, purpose.

Deconstruction of Marriage and Culture

Again, the Supreme Court's jurisprudence is as much consequence as cause of larger cultural change. Nevertheless, beginning in the 1960s and culminating with Obergefell, Court decisions provide excellent markers of the progressive replacement of Western intellectual tradition and its conception of marriage.

In Griswold v. Connecticut (1965), the Court declared unconstitutional a state statute prohibiting the sale of contraceptives. It speaks volumes that only half a century ago such laws were still common, reflecting the historic understanding that children are inseparable from the very idea of love and marriage. At one point in our history, the American people and their governments understood that the connection between gratification and children was so essential to marriage and culture that they made it illegal to sell the means to intentionally break that connection. But the Court, concluding itself wiser than the people, discovered in the Bill of Rights an unwritten right of "privacy," which included the right to separate gratification from procreation. Besides the actual legal effect, the Court's holding had a powerfully symbolic effect, communicating to the nation that gratification alone was a sufficient justification for breaking the intergenerational covenant of procreation on which culture is based - that the Court would no longer allow government to prohibit the intentional severance of the natural connection between act and consequence, gratification and responsibility, comfort and commitment, present and future, love and children.

In Eisenstadt v. Baird (U.S. 1972), the Court affirmed its Griswold holding. But this time the plaintiffs were not even married, so far beyond Griswold, the Court sent the message that marriage itself was not essential because the right of individual gratification superseded any social purpose that requiring the commitment of marriage as a precondition of sexual gratification or having children might serve.

In Roe v. Wade (U.S. 1973), the Court held that "privacy" includes the right to abortion. Beyond Griswold and Eisenstadt, "privacy" now included not only the right to sever the natural connection between gratification and responsibility and act and consequence, but also the right to destroy consequences and avoid responsibility for them when they do occur.

In Planned Parenthood v. Casey (U.S. 1992), the Court openly announced the substitution of worldviews. In declaring that the right of "privacy" trumped all but the most limited regulation of abortion, Justice Kennedy wrote that "liberty" protected by the 14th Amendment includes:

. . . the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

Essentially, the Court said that because every mother has the right to define and decide existence, the universe, life, and meaning for herself, that right necessarily includes the right to define and decide whether an unborn child is a legal person and whether it should live or die. An unborn child is no longer understood to be a created or natural human substance with inherent characteristics and rights, so there is no fixed truth or legal principle governing whether it is a person or deserves legal protection simply because of its nature as a human being. The child is whatever the mother decides, and it will live or die depending upon that decision.

In Romer v. Evans (U.S. 1996) and Lawrence v. Texas (U.S. 2003), the Supreme Court treated homosexual acts, by which children are impossible, as having equal legal status with heterosexual acts, by which children are, actually or symbolically, inseparably connected.

In United States v. Windsor (2013), a deceased partner in a same-sex marriage recognized by the State of New York left her estate to her partner, who challenged the federal Defense of Marriage Act, under which she was denied the surviving spouse exemption from federal estate taxes. Substituting its judgment for that of Congress and virtually all cultures throughout human history, the majority held that the Act violated due process because Congress could have "no legitimate purpose" for defining marriage as between man and woman, and that the "purpose and effect" of such a definition was to "disparage and injure" same-sex couples whom New York "sought to protect in personhood and dignity."

In a companion case, Hollingsworth v. Perry (2013), the people of California approved a state constitutional amendment defining marriage as between man and woman. When the state attorney general refused to defend his own constitution against a federal challenge, the Supreme Court refused to allow the citizens who passed the amendment to intervene to defend it. In contrast to Windsor, where the Court simply ignored the "legitimate purpose[s]" argued by Congress for the federal definition of marriage, the Hollingsworth Court refused even to allow such purposes to be heard.

Finally, in Obergefell v. Hodges (2015), the Court took not merely a road less traveled, it took one never before traveled at all. As explained above, Obergefell crosses a profound divide in the intellectual foundations and jurisprudence of Western civilization. It has no limiting principle grounded in reality. The majority no longer bothers to ask whether marriage (or anything else) is beyond the reach of positive law simply because it exists "in the nature of things." Rather, speaking for a one-vote majority, Anthony Kennedy discovers that due process entitles every individual to "define" his own "identity." And not only does due process protect the right to create one's own reality, it requires government to "dignify" and "support" the creation.

Among the malignant consequences of such arrogance is the death of law itself. Rule of law's essence is prescription in language. What is written by the legislature today is to be understood and followed by the judiciary tomorrow. But the majority derive their holding, not from constitutional text, but from their powers of invention. They admit their constructions of "liberty" and "equality" have no basis in history, but impose new meanings anyway. The arrogance is breathtaking. Justice Scalia calls it "hubris" and "astounding." Chief Justice Roberts asks, "Just who do we think we are?"

Obergefell also sanctifies two pernicious fallacies as constitutional writ. Rejecting the judgment of virtually all cultures of all times that marriage serves the two essential purposes of fulfilling the man and woman who comprise it and rearing the children they produce, Kennedy declares children nonessential because some heterosexuals "do not or cannot have children." But if that is correct, then fulfillment is not essential either - divorce being proof enough that many individuals "do not or cannot find fulfillment." Worse, citing Loving v. Virginia as authority, Kennedy equates race and gender despite the numbingly obvious distinction that in bearing and raising children, difference in race is irrelevant, difference in gender is essential.

Further, the Court substitutes its own "reasoned judgment" for that of the people whose representatives have acknowledged, time out of mind, that marriage is between man and woman. Because children are ends in themselves, not means to adult fulfillment, marriage laws have always institutionalized the norm of children being raised by their own parents. But equating same-sex unions and marriage, Obergefell confirms a mother's power to subordinate her son's need for his father to her own need for a same-sex partner. It lays the groundwork for denying a child's right to be reared by her own parents, and for diluting or ending official preference for the natural biological unit on which civilizations have rested time out of mind. Its inexorable illogic requires that - as the Department of Justice argued in Hollingsworth - parents' gender is irrelevant to a child's development. So while same-sex couples have the "right" to raise children who are not their own, those same children have no right to be raised by parents who are their own. We will soon be told that nature itself is artificial, and therefore meaningless as a basis for any kind of legal analysis.

Quo Vadis

Obergefell's road not traveled has finally taken us completely through the constitutional looking glass. The Court has discovered that having sex with whomever, however, whenever you want is vital to human "dignity," and woe to anyone who even questions such a right, much less condemns it as immoral or sinful. Rights of speech, free exercise, and association - which obviously are in the text - are rapidly disappearing before the new right of sexual autonomy - which is obviously not in the text.

And so we have passed from a world of law grounded in text to a world of law created by utter invention. The Court has not merely deconstructed marriage and culture, it has deconstructed reason and law itself. I pray that rule of law may yet be recovered. *

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