FIRST THINGS:How should we respond to the ruling by the Supreme Court in Obergefell v. Hodges that there is a constitutional right to same-sex marriage?

AFTER OBERGEFELL:

A FIRST THINGS SYMPOSIUM

by Various


How should we respond to the ruling by the Supreme Court in Obergefell v. Hodges that there is a constitutional right to same-sex marriage? What’s next?

These are the question that we asked the following contributors—male and female, gay and straight, Christian and Jewish, Protestant and Catholic and Orthodox—to answer in this First Things symposium. –Ed.


Ryan T. Anderson:

The Court’s ruling is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of one man and one woman. The Court got it wrong: it should not have mandated all fifty states to redefine marriage.

This is judicial activism: nothing in the Constitution requires the redefinition of marriage, and the Court imposed its judgment about a policy matter that should be decided by the American people and their elected representatives. The Court got marriage and the Constitution wrong today just like they got abortion and the Constitution wrong 42 years ago with Roe v. Wade. Five unelected judges do not have the power to change the truth about marriage or the truth about the Constitution.

We must work to restore the constitutional authority of citizens and their elected officials to make marriage policy that reflects the truth about marriage. We the People must explain what marriage is, why marriage matters, and why redefining marriage is bad for society.

For marriage policy to serve the common good it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

The government is not in the marriage business because it’s a sucker for adult romance. No, marriage isn’t just a private affair; marriage is a matter of public policy because marriage is society’s best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow.

Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs—or rights—of children. It teaches the lie that mothers and fathers are interchangeable.

Because the Court has inappropriately redefined marriage everywhere, there is urgent need for policy to ensure that the government never penalizes anyone for standing up for marriage. As discussed in my new book, Truth Overruled: The Future of Marriage and Religious Freedom, we must work to protect the freedom of speech, association, and religion of those who continue to abide by the truth of marriage as union of man and woman.

At the federal level, the First Amendment Defense Act is a good place to start. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.

Recognizing the truth about marriage is good public policy. Today’s decision is a significant set-back to achieving that goal. We must work to reverse it and recommit ourselves to building a strong marriage culture because so much of our future depends upon it.

Ryan T. Anderson is William E. Simon Senior Research Fellow at The Heritage Foundation and author of the forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom.

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Hadley Arkes:

We had no reason, of course, to be surprised by the outcome today. The most we could do was cling to the hope that the result might be less astounding and sweeping than it was. But Anthony Kennedy put in place the decisive premises nineteen years ago in Romer v. Evans: the aversion to the homosexual life could be explained only by an irrational “animus.” After that, it was just a matter of watching as things unfolded: there was no justification for incorporating in the laws an adverse moral judgment on the homosexual life, and the laws that refused to recognize, as a marriage, the coupling of two men or two women, could not then be “justified.” ............................

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Mark Bauerlein:

The only immediately satisfying response to this decision and to the many reversals social and religious conservatives have suffered in recent years that I can think of is financial.

As Patrick Deneen wrote in his First Things essay, “The Power Elite,” corporations have acted squarely against conservative persons and principles. They have pressured judges and politicians and organizations to stand down on social issues, as the Indiana episode a few months back illustrated so well. ......................

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Shalom Carmy:

Misfortune engenders the obligation of repentance, teaches Judaism. Only yesterday, when the notion of overturning the traditional conception of marriage seemed like a far-fetched fantasy, too many of us put too many of our eggs in the psychological illness basket, condoning on pseudo-ideological grounds therapies that, in our hearts, we knew were a waste of money, the cause of false hope and misplaced guilt. Worse, many of us tolerated without protest bigoted and vulgar voices alien to our sense of decency and outside the bounds of God-fearing discourse. Shall we take umbrage now when those whom we allowed to be humiliated turn their resentment and intolerance on us and on the religion we represent? For this we must repent, before God and before our fellow men. .................

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Rod Dreher:

Earlier this year, First Things published an essay of mine calling for the “Benedict Option,” my term for a radical rethinking of the place of small-o orthodox Christians in the public square. My belief, in a nutshell, is that the common culture—insofar as we have one—is so far gone into decadence and individualism that the only sensible thing for us to do is to strategically retreat from the mainstream to strengthen our Christian commitments, and our church communities. The Obergefell ruling, I think, only makes the necessity of the Benedict Option more urgent. ........

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Robert P. George:

How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.” .....


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Timothy George:

In the summer of 2009, the late Charles W. Colson, Professor Robert P. George, and I drafted the Manhattan Declaration which called on Christian believers of all denominations to stand fast in support of what we deemed to be the three most pressing moral issues of our time, namely: the sacredness of every human life from conception to natural death, the dignity of marriage as God intended it be, a lifelong conjugal and covenantal union between one man and one woman, and

religious freedom for all persons. Now, in the summer of 2015, the Supreme Court decision in Obergefell v. Hodges undermines marriage and threatens religious freedom.

The erosion of the marriage culture has happened quickly. For example, in 2009, newly elected President Barack Obama and then-Secretary of State Hilary Clinton both affirmed the understanding of marriage set forth in the Manhattan Declaration. The Supreme Court’s dictum today does not bode well for the future of our democracy. The ability to decide such a fundamental matter related to the flourishing of family life and the integrity of the common good has been taken away from the people and their elected representatives in each of the fifty states. ......

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Wesley Hill:

In his memoir Denial: My Twenty-Five Years Without a Soul, the gay journalist Jonathan Rauch says that there once existed a frightened young man tortured with the certainty that there was no place in the world for the love he experienced. That man was Rauch, and there was no home for him—none, that is, until he and his fellow Americans decided he had the right to marry. “They and he have found, at last, a name for his soul. It is not monster or eunuch. Nor indeed homosexual. It is:husband.” ...............


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Caitlin La Ruffa:

Well, we got the Roe v. Wade of marriage. As much as we’d been expecting it, it’s still surprisingly hard to swallow.

Nonetheless, even today we have reason to be hopeful. I need only turn to my Facebook feed to see how far we’ve come. Just over two years ago, on the day of the oral arguments for Windsor, my newsfeed was a sea of red equal signs. No countering voice could be found. This time, however, the conversation shifted in dramatic fashion. To be sure, I came across a suffocating array of rainbow flags, but this time there were myriad voices balancing the debate. I was struck by the tenacity shown by dozens of college students and recent alumni who courageously shared quotes from the dissenting opinions, posted their own wedding photos, shared articles by my fellow authors in this symposium, posted memes about marriage and religious liberty, and respectfully engaged their peers in civil debates about the nature of marriage, religious liberty, and the democratic process—letting their social networks know in no uncertain (or uncharitable) terms where they stand on marriage. ................

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Peter J. Leithart:

Orthodox Christianity has lost all cultural potency in the United States.

No one defending traditional marriage before the court dared raise the fundamental question: Who creates marriage, God or the state? Theology has no public standing, no persuasive force in the culture at large.

Obergefell is another nail in the coffin of the Protestant establishment. It’s not the first nail, or the last. It may be the one that snaps the lid closed. ......

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Russell Moore:

The Supreme Court has determined, as many expected it to, that the United States Constitution implicitly guarantees a right to marry a same-sex partner. This ruling is unsurprising to anyone who has paid any attention to the astonishing cultural headwind and legal momentum that same-sex marriage has generated just in the last four years. .....


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Mark Movsesian:

Well, they didn’t go small. There is a lot to dig into in the one-hundred-odd pages of opinions in Obergefell, but, as a very quick reaction, here are two points.

First, although some commentators predicted that the Court would issue a narrow, pro-gay marriage ruling, the reasoning of Justice Kennedy’s majority opinion is actually quite sweeping, returning the Court to the heady days of substantive due process and unenumerated rights. Forget about textualism and originalism. As Chief Justice Roberts points out in his dissent, even the restraints of “history and tradition,” a limit Justice Harlan once suggested, are effectively shunted aside. A five-justice majority believes that same-sex marriage is a fundamental element of personal liberty, and that makes it a constitutional right. .....

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David Novak:

The decision of the U. S. Supreme Court in Obergefell v. Hodges is not surprising, though still disappointing. As a Jew, I add my disappointment (though not my surprise) that the three Jewish Justices: Breyer, Ginsburg, and Kagan, seem to be oblivious (if not contemptuous) to what their Jewish tradition has taught the world about the male-female union being essential to the universal institution of marriage ordained by God. So, where do we religious conservatives go from here? Let me make two brief suggestions. ......

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Ephraim Radner:

Male-female distinctions define marriage in a particular direction: the gift of generation and of generations. With its decision, the Supreme Court of the United States has done its part to deny and destroy this reality, and further the modern process of legalizing child abandonment, while at the same time violating the Commandment for honoring mother and father. “Marriage equality” is a euphemism for abandoning children before a singular idol: individualized—and hence unformed, unaccountable and therefore irresponsible—adult desire. ......


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Mark Regnerus:
A half-life is the time required for the amount of something to fall to half of its initial value. If I take any comfort from the legal destruction of the timeless internal structure of marriage, it’s that same-sex marriage will have a short half-life. My bet is on fifteen years. In other words, within fifteen years the rate of its uptake among self-identified gay and lesbian Americans will fall to half of what we will observe over, say, the next few years—the time during which pent-up demand for same-sex marriage will have been met. After that, my best guess is that we’ll be able to discern its “standard” rate. (I’m afraid its radioactivity will not likely subside as rapidly.) .....

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R. R. Reno:

The Supreme Court decision about marriage disappoints, but it does not surprise. The Majority Opinion states the philosophical basis for discovering a right to same-sex marriage: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” This is an unworkable, intellectually bankrupt concept of freedom. But it’s the consensus view in America. ....

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Matthew Schmitz:

The Court’s decision in Obergefell v. Hodges is not so much a piece of legal reasoning as a hymn of praise. It lauds marriage as having the power to confer “nobility and dignity,” impart “a life that could not be found alone,” and allay “the universal fear that a lonely person might call out only to find no one there.” These statements—utterly disconnected from the realities of America today—are at once quaint and cruel. .....

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Melinda Selmys:

Until quite recently, the purpose of marriage was to try to ensure that couples were adequately supported socially, culturally, and materially, so that they would be able to give birth to children and then care for those children in the family that they were born into. It provided the incentive and the means for the survival of a particular family’s genetic inheritance into the next generation. It functioned as a forward-looking institution in much the same way as the practice of putting up grain for long-storage functioned as a means of ensuring the community’s survival during periods of drought. .....

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Jeff Shafer:

Like United States v. Windsor before it, the Obergefell decision is a cultural mile-marker, not the product of constitutional doctrine (and doesn’t try very hard to appear to be). After Windsor, Harvard Professor Michael Klarman had mused that however much the rest of us might care about legal doctrine, it’s not something that the Justices appear to be much influenced by, at least in landmark cases like that one. Obergefell illustrates that point in spades, as the four dissenting justices elaborated. ........


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Eric Teetsel:

Thud. The other shoe has dropped. Two years to the day after ruling against the federal Defense of Marriage Act (while waxing eloquent about the right of individual states to define marriage for themselves) the Supreme Court has ruled 5-4 that the 14th Amendment requires all fifty states to sanction marriages between two individuals of the same sex. Justice Kennedy's majority opinion brings an abrupt end to the legitimate democratic process through which proponents of same-sex marriage were swiftly gaining ground. June 26 will be celebrated by many as the date of the penultimate and final victories in the stunningly swift advance of the LGBT agenda in America, but for faithful Christians it is a day for sadness, reflection, and recommitment. ......

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Carl Trueman:

The SCOTUS ruling is disappointing but hardly surprising. While we like to believe legal judgments are based upon application of law, we know that the context for interpretation and application is set to large extent by the larger social and political context. It has been some time since the organs of popular culture have done anything other than press for the normalization of same-sex marriage. When one adds the growing implausibility of religion as a basis for making arguments in the public square, the verdict was never really in doubt. ......


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