The Insidious Logic of the Court’s Marriage Decision

by
July 10, 2015

The writers who composed The Phantom Menace knew what they were doing when giving the nemesis of the Jedi Order the name Darth Sidious. Anything with sidious in it must be bad and the term insidious is no exception. Insidious is an adjective referring to something stealthily treacherous, and the tortured logic of the Court’s recent marriage decision was that and more. It was not only mistaken but deceptive, and not only deceptive but malevolent. Let me explain.

The Supreme Court, on June 26, 2015, issued a decision forcing all 50 states to redefine marriage contrary to history, tradition, biology, and the Bible. A bare majority of five justices did this by creating a new right in the Constitution based on nothing other than their feelings. In dissenting, Chief Justice Roberts said, “the majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent” but relies on nothing more than “its desire to remake society according to its own new insight.” Similarly Justice Alito observed that, “for today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.” Roberts also said that “neither petitioners nor the majority cites a single case . . . providing any basis for such a constitutional right” because “none exists,” and criticized the decision’s blindness to the difference between affirming the long established right to marry and generating a new right to force states to abandon “the meaning of marriage that has persisted in every culture throughout human history.”

How did the Court’s bare majority, consisting of Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, justify their radical conclusion with no factual basis or grounding in precedent? They did it insidiously by creating a problem that did not exist in order then to fix it by fabricating a new right so “fundamental” it overrides universal history, all legal precedent, all state authority to regulate civil marriage, the democratic process, and even the religious liberty written into the Constitution. This involved a chain of logic, but the whole thing depended on that insidious first step of creating a problem needing to be solved.

The Court majority decided that, under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have “a fundamental right to marry.” But since traditional marriage is structured for having and raising children there is no injustice. Same-sex relationships are simply irrelevant the same way that friendships and adulterous liaisons are irrelevant. So to generate a problem needing solution Justice Kennedy, writing for the majority, redefined marriage giving it a different meaning than it had in the laws he wanted to change. His logic began by assuming the historic meaning of marriage has no rational basis and instead assumed his conclusion to reach his conclusion. That is, Kennedy began his analysis by redefining marriage in order to redefine marriage, claiming the Court simply knew (with no supporting argument) that marriage is nothing more than a bond by which couples find “freedoms” unrelated to sexual difference. That is, to generate a problem by which to reach a desired conclusion, the majority assumed the meaning and structure of marriage was already changed in the way petitioners wanted it changed before changing it. In response Chief Justice Roberts said, “today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to,” and Justice Scalia was incredulous asking, “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is (a freedom), one would think Freedom of Intimacy is abridged rather than expanded by marriage.”

By redefining marriage only to concern private happiness and contributing nothing of public significance to society (like having and raising children to become responsible citizens), the majority gave itself a problem to solve. After redefining marriage other than what marriage meant in the laws petitioners were challenging, then and only then was the majority able to say that, because there is “no difference between same- and opposite-sex couples” with respect to marriage, it therefore is unjust to deny same-sex couples “the constellation of benefits that the States have linked to marriage.” But that was not enough. Minor problems do not warrant the Court’s attention, so the majority fabricated a new right from what they called “a better informed understanding of . . . liberty” with no precedent in history, social practice, or law. And they claimed it to be so “fundamental” it required states to abandon the way marriage was defined for millennia in order to affirm private hopes couples desiring to marry have for themselves. Reacting to this Scalia blistered the majority asking, “How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?”

The illogical logic of the Court’s marriage decision was not just deceptive but evidently malevolent in three ways. First because the majority linked invalidating procreationally structured marriage with how the Court previously invalidated racist marriage laws, which makes prospects for honoring religious liberty exceptions rather dubious. Justice Thomas said, “The majority’s inversion of the original meaning of liberty . . . threatens the religious liberty our Nation has long sought to protect,” and Roberts held that, “unfortunately, people of faith can take no comfort in the treatment they received from the majority today.” Alito added that, because “the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans” this decision “will be used by those who are determined to stamp out every vestige of dissent.” Second because it expressed distain for traditional marriage by dismissing “the connection between natural procreation and marriage” as “counterintuitive” while offering no support for such hostility. Third because it disparaged as “wholly illogical” all questions about how redefining marriage could harm the “the Nation’s social order.”

So what should we make of this? In view of the way the Court’s marriage decision realigns our most essential social institution, how should Americans committed to the common good and even more to the gospel, react to how this changes our circumstances? What does dual citizenship in a darkening world require, and how should we behave as effects of this decision play out around us? Let us determine first of all not to bemoan our marginalization or to act as victims demanding favors that only reinforce public irrelevance. Christ sent His disciples into the world “as sheep among wolves” (Matt 10:16) telling them to be shrewd and harmless. But He never bemoaned mistreatment by those in power and did not teach His disciples to seek or expect favorable treatment by pagan politicians.

Next we should realize that, no matter what else changes, nothing in this world ever lessens the obligation we have as Christians to live in the true, the good, and the beautiful. The Court did not change true marriage or anything truly true about true marriage. The true meaning, nature, purpose, and structure of marriage all endure whatever misconceptions arise and however confused laws become. The goodness of real marriage with its ability to ennoble the man-woman bond and to dignify the union of sexual difference also endures no matter how strongly others deny it. And the beauty of procreationally aligned marriage endures, not only when biological parents are blessed with well-behaved children, but still more as real marriages last into later life when children turn into responsible adults and the inner relationship of husbands and wives, nurtured over a lifetime, emerges with a glory impossible to ignore even as their bodies decline.

No matter how the culture changes, living in the truth is essential. We must not accept or support lies about the meaning, nature, and structure of marriage no matter how maligned or coerced. True marriage and truths about true marriage do not come from man and cannot be changed by society, lawyers, or whatever couples choose, and lying about marriage is not truly loving. True marriage and truths about true marriage are matters of reality that may be confused or denied but never changed, and accepting lies can never be loving no matter how strongly others want to believe them. But standing for truth is just a beginning and will not stop the culture from sliding. False views of marriage are spreading and will spread faster especially since legitimized and fueled by the insidious logic of the Court’s marriage decision. So, while standing for truth is essential, it is not enough. We must also affirm the good of real marriage. Real marriage is not just good but uniquely good. Man-woman marriage is not just “as good” or “good along with” the alleged good of same-sex intimacy, but is uniquely good in a way not just better but entailing something different the other does not have at all. And yet, while we affirm the uniquely different good of real marriage, many friends and neighbors will deny it shifting attention to other relational goods (like friendship and caring) unrelated to sexual difference. Which leads us to consider the power of beauty to penetrate this growing darkness.

Understanding the limited ability standing for the truth and good of real marriage have for getting through to a culture sinking headlong into darkness leads me to a final observation, which is that, as the insidious logic of redefined marriage spreads through our culture, the most powerful strategy we have for penetrating the darkness and leading “many to righteousness” (Dan 12:3), is not focusing so much on what is true and good (though we must affirm both and keep doing so however difficult it becomes and at whatever cost) but is focusing rather on demonstrating the undeniable beauty of real marriages—those that are practiced by imperfect human beings in ways that portray the meaning, nature, purpose, and structure of the unchanging unchangeable plan established by our Creator, Who in fact knows us better than we know ourselves, still runs things His way, and laughs at those who imagine otherwise (Ps 2:1-4).


Daniel R. Heimbach
Daniel Heimbach is Senior Professor of Christian Ethics at Southeastern Baptist Theological Seminary. He has authored or contributed to fourteen books and published over sixty articles and book reviews. He is a Research Fellow with the Ethics and Religious Liberty Commission’s Research Institute.