Blurred Lines: A look at Supreme Court’s Same-Sex Marriage Jurisprudence

Blurred Lines: A look at Supreme Court’s Same-Sex Marriage Jurisprudence

Last update on Nov. 26, 2013.

Once upon a time in a far-off land called Washington, D.C., 342 Congressmen, 85 Senators and one President all agreed to the same law. It was a very strange time.

The year was 1996 and most of us over here at Marriage Generation were in junior high. The “Macarena” topped the charts. Tickle Me Elmos and Buzz Lightyear costumes made our younger siblings giddy. We desperately tried to achieve some sort of fashion sense with our denim overall shorts, penny loafers or platform shoes.

While we were paying attention to our crushes, our grades, our makeup, and our favorite athletes, a Republican Congress and the Clinton White House showed overwhelming bipartisanship. They passed a law that, for Federal purposes, defined marriage as the union between one man and one woman. The Defense of Marriage Act (hereafter known as DOMA) codified what had always been the law of every land—in all states and all countries, since the beginning of recorded history.

Fast-forward to June 26, 2013. Seventeen years have passed. Some of us are packing our kids up for a day at the beach. Others are booking cross-country flights for conferences, business trips, and vacations. We’re purchasing homes, changing jobs, starting businesses. The week that the Supreme Court released its decision, Robin Thicke topped the charts with “Blurred Lines.” I suppose we have all grown up a bit.

So much had changed that a majority of Supreme Court justices revisited DOMA. In U.S. v. Windsor a five-justice majority deemed that Section 3—the part defining “spouse” and “marriage”—was no longer constitutional. The Court’s majority intoned that the only malice could have motivated the [once overwhelming majority] of lawmakers to maintain such a definition of marriage.

Justice Antonin Scalia wrote the dissenting opinion:

[T]he majority says that the supporters of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose… a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children….

 

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race….

So how, exactly, did a once-mainstream commitment to marriage become the brand of a spiteful enemy of the human race?

In a recent lecture at my church, legal experts Patrick Traylor and Alison Jones explained the history, philosophy, and logic behind the Supreme Court decision. The entire lecture is worth your time, but let me simply highlight a few points.

In his lecture, Patrick Traylor offered a Philosophy 101 overview of Western thinkers and their influence on our American mores. He began by noting that “there is no chasm, in biblical Christianity, between faith and reason or between grace and nature or between the spirit and the body.” Contrary to the inherited wisdom of the ages, the intellectual worlds of public policy or governance were never intended to be pitted against faith. But that is the world we have come to inhabit and our public thinkers have been shaped by the philosophy of the ages:

  • The 17th century thinker, Thomas Hobbes thought that human beings would mechanically and relentlessly avoid pain and pursue pleasure. Without an absolute monarch governing the land, pleasure-seeking humans would kill each other off and experience a nasty, brutish, and short life.

  • The 18th Century thinker Jean-Jacques Rousseau was a bit more optimistic about the human condition and mourned the loss of man’s natural state—a veritable Garden where humans could be free to eat, sleep, and have sex with whomever they please. In an ideal world, the peaceful hedonist could enjoy pleasure uninhibited; whatever happened in one’s bedroom would remain one’s own business.

  • The 19th century thinker John Stuart Mill articulated and popularized the concept of utilitarianism—the system whereby a society can maximize pleasure and minimize pain for the highest number of individuals. Mill also rejected the notion that humans could intuit right from wrong. Actions must be judged by their consequences—that is, “if I’m not hurting anyone, it can’t be wrong.”

Alison Jones, a former Supreme Court clerk, traced the Supreme Court elites’ changing reasoning over the years. In incremental terms, the Court’s majority opinion shifted. In the 1986 court decision Bowers v. Hardwick, the majority upheld state laws that outlawed certain sexual practices. While the law’s challengers attempted to claim that “immorality” was an inadequate reason to ban certain practices, the Justice Byron White disagreed, “The law is constantly based on notions of morality and if all laws representing essentially moral choices are to be invalidated under the due process clause, the courts will be very busy indeed.”

But tides of elite judicial opinion shifted in the following years. By 2003, some of us millenials were paying attention. That year, the Supreme Court overruled its previous decision and ruled in Lawrence v. Texas that consensual sexual conduct is a liberty that is protected by the Constitution; therefore it can not be prohibited by state law. And so Rousseau’s happy hedonist must be left alone because the law may not be used to enforce particular moral or ethical views, because as Mill would argue, there is no harm being done.

But the Court’s minority was not silent. As Justice Scalia suggested several years ago—if the court were not prepared to uphold laws based on moral choices, then state laws against things like bigamy, prostitution, and obscenity would not ultimately not be sustainable. This is no slippery slope fallacy. This is merely a recognition that a new majority seeks to marginalize an old one by discrediting its rationality—calling it bigoted and the enemy of the human race.

Truth will have its detractors. But if you understand this minority position to be  hopeful and true (if inconvenient), I invite you to grapple with the call toward “a new social witness.” If you want to hear more on the topic, check out this lecture by Marriage Generation contributor, Dr. Owen Strachan: The Sacrificial Witness of the Christian Moral Tradition.  

But back to “Blurred Lines” just for a moment. The song topped the charts back in June and we’re still debating whether the aggressively sexual lyrics are directed at his lovely wife of 20 years (like the singer claims), or glorifying rape and violent sex towards scantily clad women in one’s proximity. For now, universities in the UK tend to be concerned that the second description better fits the lyrics and are banning the song from public social functions.

And for now, such a ban is a grass-roots effort—gaining momentum and not being dismissed as prudish, hateful, or narrow-minded. But what about 17 years from now? What’s keeping us from adapting and perverting principles from Hobbes, Rousseau and J.S. Mills in such a way that allows us to celebrate pleasure for the many, at expense of a prudish few? How many more people will be hurt by this utilitarian free-for-all? Perhaps it is time to un-blur the lines.

Media:
Jessica Prol

Jessica is an oldest sister, counseling student, writer, and Capitol Hill resident. Follow her on twitter: @JessicaProl.

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