Why Pro-Marriage Lawyers Are Losing

No one is willing to make the case in court defending the human species.

By Robert Reilly Published on June 16, 2015

Why have the pro-natural family forces been losing in court?  Because they don’t even make the moral argument. I don’t mean the religious argument. I mean the moral argument. Allow me to explain and provide some needed background.

Judge Richard Posner underscored the failure in a 7th Circuit Court ruling (Sept. 4, 2014), in which he decided against the Indiana and Wisconsin laws that affirmed that marriage is between a man and a woman. There he wrote that the state of Wisconsin, when its lawyers were arguing for the natural marriage law, did not even mention Supreme Court Justice Samuel Alito’s moral argument for natural marriage. He was referring to Alito’s 2013 argument that marriage “is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” [U.S. v. Windsor, 133 S.Ct. 2675, 2718]

As Posner went on to underscore after citing Alito, “That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said, it mounts no moral arguments against same-sex marriage.” Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014)

Justice Alito, to his credit, recognizes that there is a powerful moral argument for limiting marriage to people of the opposite sex, indeed, for defining it in such terms. Such an argument is in harmony with a Judeo-Christian religious argument — one that cited Scripture and the traditions of the Church — but the moral argument is both distinct from the religious argument, and a fully public argument. In other words, if you’re open to reason, you don’t have to be a Jew or a Christian to feel the force of it.

I’ll unpack that moral argument in a moment, but first note that, unfortunately, such an argument wasn’t made by Wisconsin, Michigan, Kentucky, Ohio or Tennessee in Obergefell, the decisive case now before the U.S. Supreme Court. I believe this failure is a key reason the pro-natural family position has been losing in court.

Ignoring “Gender and Sexuality” a Retreat from Reality

With the moral foundation missing, an air of unreality pervades the debates in federal court. Let us see how unreal by looking at a couple of examples. When invalidating Oregon’s constitutional definition of man-woman marriage (May 19, 2014), U.S. District Judge Michael McShane wrote this in his opinion:

I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families.  Families who we would expect our constitution to protect, if not exalt, in equal measure. [Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1147 (D. Or. 2014)]

Astonishing. What Judge McShane calls “gender and sexuality” is the only means by which families are generated. Since families come from parents, you cannot look past parents and still have a family — because there would be no family there. Homosexual acts cannot generate families; therefore, their “families” cannot be the same. If there are children present, we may be sure that both biological parents of the children are not present in that family. That is a lot of reality to look past.

In Virginia, U.S. District Judge Arenda L. Wright Allen voided as unconstitutional that part of the Virginia state constitution and the Code of Virginia that define marriage as between one man and one woman. Ineptly, she began her decision on February 13, 2014, by confusing the basic texts of the American Founding (since corrected by her). She apparently thought that the phrase “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous line in the Declaration of Independence. Judge Wright Allen appealed to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples who brought suit against Virginia.

Why did Virginia have laws defining man-woman marriage in the first place? One would have to conclude from Judge Wright Allen that it was motivated by sheer prejudice and that only now has the light dawned upon the court that this is unfair. In fact, like Justice Anthony Kennedy in the Windsor decision, she asserted that there was a lack of “any rational basis” in Virginia’s exclusion of same-sex couples from marriage.

Moreover, she inaccurately stated, “These laws limit the fundamental right to marry to only those Virginia citizens willing to choose a member of the opposite gender for a spouse.” Actually, they limit marriage much further than that — to exclude minors, the already married, immediate kin and others. But why might this limitation exist in respect to same-sex couples? Judge Wright Allen never says, though she could have drawn upon several thousand years of Western and other civilizations to do so.

Same-Sex Marriage is a Logical Contradiction

Here is part of what she neglected to say. In 1885, in Murphy v. Ramsey, which upheld the ban against polygamy in the Utah territory, the U.S. Supreme Court eloquently summarized the “legitimate purpose” of marriage:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.

However, Judge Wright Allen might believe that this is exactly what same-sex couples want in marriage, as well. Perhaps my favorite line from her ruling is that a same-sex couple “meet all of the legal requirements for marriage in Virginia except for the fact that they are the same gender.” This is like saying that the only thing that prevents a giraffe from being a donkey is the fact that it is a giraffe.

Two persons of the same sex cannot be “married” to each other — not for reasons having anything to do with heartless conservatives or with the law, but everything to do with how human beings are made. The ultimate, inbuilt end of sex is to make “one flesh,” which is what happens in marriage between a man and a woman.

Two becoming “one flesh” encompasses both the generative and unitive nature of sex. Only men and women are physically capable of becoming “one flesh.” The unitive act is generative — that is, it “make babies.” And the generative act is unitive in making two “one flesh,” that is, the offspring of the mother and father. The unitive and procreative aspects of sex complete each other, and find fulfillment in the unique station of marriage.

The Parts Don’t Fit, Nor Life Transmit

For same-sex couples, the marital act is physically impossible — key parts are missing — and the attempt to imitate it through sodomy cannot generate new life. One thing that same-sex couples all share is a unique disability to express either the unitive or procreative essence of conjugal relations. For these reasons, among many others, common law has held through the centuries that marriage can be only between a man and a woman.

Common law also held that if a marriage is not consummated, it could be declared to be a legal nullity. It is astonishing that Judge Wright Allen seemed to be unaware of these basic facts. In some states, entering into a marriage with the intent of never consummating it is considered marital fraud.

One can expect such constitutional and moral illiteracy from the opponents of natural marriage, but from its defenders as well? In 2009, California’s Proposition 8, a constitutional amendment restricting marriage to one man and woman, was challenged in the U.S. District Court for the Northern District of California before then closeted homosexual District Judge Vaughn Walker.  Since the State Attorney General and the Governor had refused to defend their state’s own constitution, other groups stepped in, hiring attorney Charles Cooper to plead their case. Here is what Cooper argued to the U.S. Supreme Court in the Hollingsworth v. Perry case as a defense of California’s Proposition 8:

But consider the California voter, in 2008, in the ballot booth, with the question before her whether or not this age-old bedrock social institution should be fundamentally redefined, and knowing that there’s no way that she or anyone else could possibly know what the long-term implications of profound redefinition of a bedrock social institution would be. That is reason enough, Your Honor, that would hardly be irrational for that voter to say, I believe that this experiment, which is now only fairly four years old, even in Massachusetts, the oldest State that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing.

This is risibly weak. Wait for additional information? Cooper suggested that it was a lack of knowledge concerning the outcome of unnatural marriage that led to skepticism as to its soundness, rather than the clear moral knowledge that such an arrangement is against the “Laws of Nature and of Nature’s God,” and therefore could not possibly be advanced as a right.

Why Use the Losing Argument from the Lincoln/Douglas Debates?

Cooper studiously avoided saying anything like this. He was at pains to portray the issue of marriage as one of states’ rights. However in doing so, he assumed a moral equivalence of natural marriage and same-sex “marriage.” This left him in the position of Stephen A. Douglas in the Lincoln/Douglas debates. Douglas said that the slavery issue should be left to the states to decide, as there was nothing inherently right or wrong in slavery. Popular sovereignty should reign. Cooper adopted an analogous position concerning marriage — it is a states’ rights issue. However, homosexual proponents have taken on themselves the mantle of civil rights. They claim, inappropriately, to be Lincoln in this debate. This left Cooper in a sure-to-lose position — taking, analogously, the pro-slavery position in an antislavery fight.  Does that sound too harsh? Here is Cooper’s own statement, posted on National Review Online, on March 2, 2014, setting out his legal strategy:

The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political and moral values, and does not place it in the hands of federal judges. Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned — if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision, too.

In other words, the lawyer hired to defend natural marriage conceded that sodomitical marriage can be a positive good, so long as it is approved by a majority.

Later we learned why Cooper was not prepared to make the moral case for marriage.  The deeper underlying reason for his incapacity surfaced in 2014, when he revealed that he actually has taken sides: “My daughter Ashley’s path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey’s family are looking forward to celebrating their marriage in just a few weeks.” Cooper stated, “I told Ashley that what matters most is that I love her and she loves me.”

However, as Edith Stein said, “Do not accept anything as love which lacks truth.” Love contains an obligation to the truth — especially transcendent truths regarding the ordering of our souls to the Good.

Is this Good not compromised by unnatural marriage? Love seeks the well-being of the other person. An unchaste act, which includes any homosexual act, harms the person on whom it is performed and the person performing it.

Many same-sex “marriage” opponents seem to suffer a sense of moral illegitimacy — and this includes many conservatives. They have the right instinct, but do not know how to express their view. Since they do not want to be embarrassed, they simply shut up or retreat. Most of these people have no background in moral philosophy or ethics. They are products of our modern educational system, which denudes the mind of any notion of natural law — which is the fundamental point from which unnatural “marriage” should be opposed — and replaces it with moral and cultural relativism.

Think of It as Wine, Except That It’s Made from Anti-Freeze

The Michigan case made a similar retreat from reality. After giving a thoroughly inadequate description of what marriage is, the Michigan brief summarizes the revisionist view: “marriage is primarily about commitment, with gender and biological procreation taking less prominent roles. From this perspective, marriage is a commitment that grounds couples and provides familial stability.”

What, I wonder, is the purpose of participating in your opponent’s denial of reality? Next we learn from the Michigan brief that voters should be able to decide such issues “on decent and rational grounds.” After giving away those “rational grounds” in the brief’s introduction, it is not surprising that the petitioners nowhere present those grounds. Instead we hear, “The difference in these views is not that one side promotes equality, justice and tolerance while the other endorses inequality, injustice and intolerance.” Well, then, what is the difference? Are right and wrong simply two different views of morality, neither of which is false? This is the path to insanity, and to another loss in court.

Natural marriage and unnatural “marriage” are not two kinds of marriage: one is marriage, and the other is not. If you’re not willing to say at least this much, why bother saying anything? Michigan is tying the noose around its own neck.

Religious Freedom Won’t Protect Us if We Concede the Lie

The reason for the kind of backpedaling exhibited in Indiana, whose Governor Michael Pence could not adequately support the religious freedom protection law he had signed, is that so many refuse to recognize the elephant in the room. Retreating to a religious freedom defense means not only that the nature of marriage has been conceded, but that the issue of the immorality of sodomy and other homosexual acts has been abandoned — both in and out of court. That is a terrible substantive and strategic error. If sodomy is not wrong, then not allowing it to serve as the basis of marriage will inevitably be seen as bigotry.

One must forthrightly say and show that sodomitical behavior is against the “Laws of Nature and of Nature’s God” and that, therefore, it cannot be advanced as a right. If sodomy is wrong, if it contradicts human flourishing, then it cannot be the basis of marriage.

Alas, one will not be able to find any such moral principles set out in the parties’ briefs filed in the marriage case to be decided by the U.S. Supreme Court later this month. For example, the State of Michigan’s brief states that: “This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy.” Yes, it is partly about how things are decided, but it is also about what is being decided. It is not simply a procedural issue; it is also a substantive one.

Fantasy Worlds Don’t Last, But They Do Leave Lasting Damage

The homosexual movement will not succeed in the long run. Dream worlds do not last. They invariably turn into nightmares from which people eventually wake themselves. How long that takes and how much damage it incurs in the meantime will depend partly on us.

Reflecting on his experiences in Nazi Germany where he had been imprisoned, Heinrich Rommen wrote, “When one of the relativist theories is made the basis of a totalitarian state, man is stirred to free himself from the pessimistic resignation that characterizes these relativist theories and to return to his principles.” We have the means at hand to return to this country’s first principles: they are called “the Laws of Nature and of Nature’s God.” We need them now as much as did our Founders. Let us return to them forthwith — before it is too late.

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  • Mark Brooks

    While the author of the article is right as to the arguments that should be made — that we should concede nothing to the sodomites — he misses the point.

    Unless and until social conservatives make removing large numbers of the enemy from the Federal bench, until we insist that our elected officials defend our right to democracy by eliminating social liberal judicial activists who think they can amend the Constitution and strike down democratically passed laws by fiat, we can’t win. We can’t treat the bench as somehow above the fray. Because they aren’t. They are right at the heart of the problem. No matter how good an argument we mount, unless our judges are on the bench, and our opponents have been removed, this problem will only get worse.

    Only then will arguing that the sodomite position is evil work.

    • faithandfamilyfirst

      Didn’t see your comment while typing mine. Spot on. It’s not about the arguments. It’s about the personalities of those deciding this matter. Until that changes, our arguments are in vain.

  • faithandfamilyfirst

    The main point that this arricle misses is that, no matter the argument, lib judges will force homosexual “marriage” on this nation. If you think for a minute that the likes of Ginsberg, Sotamayor, or Kennedy will suddenly say, “oh, a moral argument. Well I didn’t consider that. I’ll guess I won’t force homosexuality on the nation,” you are absolutely bonkers. The judges who will decide this are locked into their positions. One even officiates at these lies. It will be forced on us. There will be a massive demonic party very soon.

    • guest

      Even if a regular person is neutral on the topic of SSM, but wholeheartedly believes in the American form of government, with SCOTUS being the final arbiter, it is appalling that Kagan has not recused herself from this case. That she did not plunges a dagger into the credibility and authenticity of the court and our system of government.

      It doesn’t matter that her views on SSM are sincerely held and widely known, or that she is reliably pro-progressive on matters–she’s human and American and by gosh that’s her right, anyone’s right regardless of their views on any topic, and do not even come close to a recusal consideration, nor damage our system in any way. But the fact that she officiated a ceremony should have risen to the level of recusal, and is deeply disappointing that she did not value our American system enough to do so.

      • cminca

        Justice Scalia’s wife was an anti-Obamacare lobbyist.
        Were you calling for him to recuse himself on that case?

  • Mal

    “I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families”.
    If we look past gender then we are looking at something that does not involve marriage. It is the complementary and functional nature of the organs associated with the two genders built into our nature that makes a marriage happen. States, judges, politicians and religions do not make marriage happen. They can, and should, provide protections and blessings.
    We are being asked to ignore gender which is the one, critical factor that makes the marital relationship unique and meaningful. It is the only relationship that provides the community with continuity. Clearly, these people are demanding a sea change in order to accommodate the definition and significance of marriage. It is immoral what they are doing.,

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