GAY MARRIAGE/ Margaret Harper McCarthy (CUA): When Love Becomes War
On Tuesday, President Obama offered his two cents on the subject of love and marriage, following the Supreme Court decision to overturn the Defense of Marriage Act. “Love is Love,” he responded, on his presidential Twitter account. That about sums it up. What’s the fuss been about for all these millennia? “Make love, not war!”
To be clear the decision yesterday was not a decision to make same-sex “marriage” constitutional. It was a decision declaring unconstitutional that part of the Defense of Marriage Act, passed in 1996, which prevented same-sex couples whose marriages were recognized by their home state from receiving benefits available to other married couples under federal law. The majority (made up, predictably, of the “left,” plus the “swing vote,” Justice Anthony Kennedy) made a sort of hands-off “federalist” argument, “letting the states decide.” (Senator Rand Paul, a libertarian in the “tea party” movement, by the way, came out in favor of the decision, on these grounds.)
At the same time, however, that same majority loaded the dice for the next legal battle-the constitutionality of same-sex marriage itself- by arguing that DOMA’s basic flaw was its “deprivation of the equal liberty of persons,” and had “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. Justice Antonin Scalia, representing the minority, read his withering dissent of a decision that claims to decide nothing while deciding everything in advance.
“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’ hateful moral judgment against it….By formally declaring anyone opposed to same-sex marriage an enemy of human decency the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
The issue is, of course, much bigger than the debate about, whether or not judges should “legislate from the bench” or “let the states decide.” Should we have “sent it back to the states” to let them decide whether or not black people were human? Human nature is at stake; and that includes the status of the human body, of sexual difference, of the fact that children are conceived by a mother and a father. You don’t vote on such things, even in a democracy. Ironically, it was gay advocates who appealed to a sort of “natural law,” when same-sex marriage was banned in California (“Proposition 8”), saying that such a natural right as marriage could not subjected to the popular vote!