“Do the
citizens of a state have the right to define legal marriage as a
man-woman relationship? Or can courts overrule them on behalf of
same-sex marriage?” So Russell Shaw began a piece in that avatar of Catholic conservatism, Our Sunday Visitor, a couple of weeks ago. Shaw went on to acknowledge that courts have “the raw power” to do so, but “[w]hether doing it would be a rightful exercise of their power is questionable indeed.”

I’d turn the question around and ask Shaw if he thinks citizens of a state have the right to define legal marriage as a same-sex relationship? Suppose, in a parallel universe, they did so, and a federal court overturned the vote. Would he regard that as a rightful exercise of judicial power? Or suppose, in that same parallel universe, the citizens had voted to give a woman the right to abortion, and courts overruled them on the grounds that fetuses have a right to life. I’m confident Shaw would be on board with that decision.

Such considerations can help us parse the statement issued by Cardinal Francis George, president of the USCCB, in response to U.S. District Judge Vaughn Walker’s constitutional slam dunk of Proposition 8 in Perry v. Schwarzenegger:

Marriage between a man and a woman is the bedrock of any society. The
misuse of law to change the nature of marriage undermines the common
good. It is tragic that a federal judge would
overturn the clear and expressed will of the people in their support
for the institution of marriage. No court of civil law has the
authority to reach into areas of human experience that nature itself
has defined.

Here, the “clear and expressed will of the people” is a rhetorical feint, calculated to appeal to the majoritarian instincts of a democratic polity but carrying no real weight. For George, it’s not the will of the people but what “nature itself has defined” that matters. How does he know that nature has defined marriage as exclusively “between a man and a woman”? Not by revelation, but through the exercise of reason. It’s a matter of natural law, and therefore applicable to all people at all times. Or so the Catholic church teaches.

Other conservative Christians–notably evangelicals–base their
opposition to same-sex marriage on their reading of the Bible, but
realize that, in America, you don’t get to argue social policy in court
just on the basis of your own moral or religious convictions. As Judge
Walker put it:

A state’s interest in an enactment must of course be secular in nature.
The state does not have an interest in enforcing private moral or
religious beliefs without an accompanying secular purpose.  

And what the judge found was that the supporters of Proposition 8 could
not demonstrate any secular purpose sufficient to establish a “rational
basis” for denying same-sex couples the fundamental right to get
married. It would have been good see Cardinal George (or perhaps
Princeton Prof. Robert George) offer some expert natural law testimony
at the trial and submit to cross examination. I very much doubt,
however, that either would have cleared Judge Walker’s bar. 

In court, you don’t just get to create philosophical arguments to
demonstrate that one-man-one-woman marriage is social bedrock. You’ve
got to make some kind of empirical showing that such is indeed the case.
Facts are stubborn things, especially when there aren’t any. In the
judge’s words:

Plaintiffs presented evidence at trial sufficient to rebut
any claim that marriage for same-sex couples amounts to a sweeping
social change. See FF 55. Instead, the evidence shows a neutral, if not a
positive, effect on the institution of marriage and that same-sex
couples’ marriages would benefit the state. Id. Moreover, the evidence
shows that the rights of those opposed to homosexuality or same-sex
couples will remain unaffected if the state ceases to enforce
Proposition 8. FF 55, 62.The contrary evidence proponents presented is
not credible. Indeed, proponents presented no reliable evidence that
allowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.

Maybe such evidence will be forthcoming, but I doubt it.

Same-sex marriage is not traditional. But, wrote the judge, “the state
must have an interest apart from the fact of the tradition itself.”
Here, in fact, is the last redoubt of jurisprudential defenders of the
ancien marital regime like Justice Antonin Scalia. As Scalia put it in
his dissenting opinion in Romer v. Evans,
a decision that overturned an amendment to the Colorado state
constitution barring any jurisdiction from protecting homosexuals as a
class from discrimination:

The Court has mistaken a Kulturkampf for a fit of spite. The
constitutional amendment before us here is not the manifestation of a
“`bare…desire to harm'” homosexuals, ante, at 13, but is rather a
modest attempt by seemingly tolerant Coloradans to preserve traditional
sexual mores against the efforts of a politically powerful minority to
revise those mores through use of the laws.

In other words, in the kind of culture war we’re having in America, it’s
OK to let the defense of traditional sexual mores trump constitutional
rights.