How the case for marriage was lost, Part 1

By Fr. Marcel Guarnizo

Editor's note: This is Part 1 of a two-part series looking at the tactics used during Obergefell v. Hodges oral arguments before the U.S. Supreme Court.

Given the June 26 decision of the Supreme Court to grant a constitutional status to homosexual marriage, it is critical to review and answer many of the questions that went unanswered during oral arguments in the case, with a special emphasis on correcting errors that were put forth during the hearing. It is also a time to critically assess the strategies that have been implemented by some of the marriage advocates and resolutely seek better options.

Discussions on fundamental questions such as marriage have to start with a proper understanding and definition of the subject at hand. The "what questions" (e.g., what is marriage?) and their proper answers are the first and necessary requisite for understanding why the defense of marriage as the union of one man and a woman is not an act of injustice nor an act of sexual discrimination. A proper operational definition of marriage also clarifies why the contrary formulation ("homosexual marriage") is incompatible with the facts about marriage.

During the April 2015 oral arguments, Justices Alito, Roberts and Scalia correctly zeroed in on the "what" question from the get go. Justice Roberts noted: "The argument on the other side is that they're seeking to redefine the institution." Justice Kennedy also pointed out that the definition of marriage "… has been with us for millennia." Justice Alito saw clearly that a proper operational definition of marriage is the necessary starting point. During the deliberations he asked, "What do you think are the essential elements of marriage …?"

The pro-marriage lawyers arguing before the Supreme Court of the United States (SCOTUS) and, before them, some of the advocates in the marriage debate have improperly defined marriage and its constitutive parts.

These thinkers have been defining the essential elements of marriage in terms of children and the good of the child. However, children are not an essential element of marriage. Many of the mistakes made during the hearing had to do with this error.

Children are not a necessary component of that which constitutes marriage. This improper understanding of marriage shared by the lawyers on the pro-marriage side of the SCOTUS oral arguments led to erroneous reasoning derived from this seemingly small initial error. As can be seen from the transcript of the oral hearing, the lawyers of the pro-marriage side seemed philosophically unprepared to deal with many of the questions the justices presented.

A small error in the beginning leads to a big one in the end

I will limit my reflections to Question 1 of the hearing, that is, whether "homosexual marriage" is a constitutional right, as Question 2, regarding the status of "homosexual marriages" in states that forbid them was quite dependent on the outcome of the first question.

On Question 1, Mr. John J. Bursch, Esq., Michigan's special assistant attorney general, argued the pro-marriage side. Bursch started with an opening statement I can only describe as philosophically nearly unintelligible and positively incorrect on many grounds. Mr. Bursch avoided the essential question: What is marriage? His strategy was to stick to a procedural defense of marriage, the question: Who decides what marriage is? This strategy led to unsolvable problems for the marriage side.

Mr. Bursch, in an astonishing opening statement argued, "This case isn't about how to define marriage. It's about who gets to decide that question. … And we're asking you (the court) to affirm every individual's fundamental liberty interest in deciding the meaning of marriage."

Most of what is asserted in that statement is incorrect. There is no such thing as a "fundamental liberty interest" of every individual to decide what is the meaning of marriage. Inventing further "pseudo fundamental rights" is only adding to the problem.

Furthermore, none hold the "right" to arbitrarily formulate the definition of marriage. The claim holds a fatal and fundamental error, namely the presumption that marriage can be justly redefined, and furthermore that we have some fundamental right, or "liberty interest," at stake in personally redefining it.

If the claim is that every American has in fact the fundamental right to define marriage, what do we make of the just complaint of millions of Americans against the homosexual lobby trying to redefine the reality of marriage?

Marriage does not proceed from a definition. The definition follows from the reality of a special kind of union sought from time immemorial between a man and a woman. The reality of marriage precedes the definition and its protection by law. The claim that there exists a "fundamental liberty" for each one of us to define marriage is absurd.

The marriage definition corresponds to a reality that, as some of the justices pointed out during the court hearing, has accompanied mankind throughout its history with little fuss and bother, until the year 2001. In 2001, the Dutch tried to alter reality to apply the name of marriage to relations that do not have the essential elements of what it means to be married. Justice Breyer pointed out that the relation defined as marriage, always and everywhere between men and women, has been with the human race for 10,000 years. Marriage is the proper name and the result and proper description of one relationship, that of husbands and wives in a marital union.

The nature or essence of marriage

Justice Alito's question, "What are the essential elements of marriage?" is the crux of the matter.

What are the defining, essential, necessary elements to attain marriage? Marriage requires two things:

A man and a woman
The free consent to the marital union

By free I mean voluntary consent, but also that the proper subjects of marriage are without impediments to give the free consent required.

During the oral hearing, the pro-marriage side erroneously tied children to an essential definition of marriage. Bursch argued, "And when you change the definition of marriage to delink the idea that we're binding children with their biological mom and dad, that has consequences. …"

This is an error. Marriages validly exist, with or without children. Children may be the result of marriage, but they are not necessary to constitute a marriage.

Children are essential to the definition of what constitutes a family, for a married couple without children is not a family. The constitutive definition of a family needs children as part of its essential elements, for without children a couple is just that, a married couple. Obviously, we have married couples that have no children.

Justice Sotomayor pursued this faulty understanding of marriage at length: "So when people come in and ask for a marriage license, they just ask a simple question: Do you want children? And if the answer is no, the State says, no marriage license for you. Would that be constitutional?"

Justice Kagan hit hard at the same mistaken notion of marriage, stating, "… the best way to promote this procreation-centered view of marriage is just to limit marriage to people who want children."

Justice Ginsburg dealt the fatal blow, "Suppose a couple, a 70-year-old couple comes in and they want to get married. …"

Laughter broke out in the audience witnessing the proceedings.

"A small error in the beginning leads to a big one in the end."

Redefining the reality of marriage

At this point, it is important to highlight how the homosexual lobby is seeking to redefine the reality requirement for marriage. The homosexual lobby is seeking to eliminate one essential element of the definition, the need for the proper subjects of the relation, before free consent can be rendered. They wish to ignore that every claim requires the proper subjects of the right to be the ones making the claim.

Their redefinition improperly seeks to make the second essential element of marriage – consent – the element that constitutes the whole. Consent is indeed needed for marriage, but it is not sufficient to qualify for that which marriage is.

The marriage redefinition crowd fails to acknowledge that the proper subjects are first required to render the consent. No one can legally consent to any contract in law if it cannot be proved that one may make the contract or is a proper party to the contract.

The issue has not previously come to the fore because for millennia it has been obvious that a man and a man cannot constitute the wife-husband relation. Men are not wives, and women cannot be husbands. The claim of homosexual marriage is akin to identity theft: Men claiming to be wives and women claiming to be husbands.

But we live in a time in which post-modern thinking has taken over the reasoning of the West. The mantra of the post-modern worldview is that "there are no facts, only interpretations." Granted, under this departure from reality, anything is possible.

The argument that consent is all that is needed denies that natural limitations can circumscribe or limit the parties to the marital union. If natural limitations were superseded by the mere consent of willing parties, all kinds of relations, which neither in law nor reality can be considered marital, would become candidates to be defined as definition of marriage. For instance, if consent is all that is required, a father could marry his son (assuming he is an adult), and they can both consent to the wedding. Incest would be possible if no natural limitations can circumscribe marriage. Polygamy would also be licit if consent is all that is required. Clearly, consent alone is meaningless and insufficient by itself to be considered the constitutive element of marriage.

Is the denial of homosexual marriage akin to the prohibition of interracial marriages?

"What is the Reason for the Exclusion rather than the reason for the non-inclusion?" (Justice Kagan)

Justices Sotomayor and Breyer asserted that the reason for the non-inclusion of homosexual unions in the definition of marriage is no different from the unwillingness in certain nations, at a particular historical moment, to allow interracial marriages.

But if one understands the proper definition of marriage and its constitutive elements, it is easier to see why the banning of interracial marriages was unjust and how it differs factually from the case of two men or two women seeking marriage.

Justice Sotomayor stated her main objection to heterosexual marriage in this regard: "Has black-and-white marriage been treated fundamentally? … And that, for me, is as simple as the question gets."

Simply put, Justice Sotomayor, a black man and a white woman, or a black woman and a white man, who seek marriage, fulfill both constitutive elements necessary for marriage: 1) a man and a woman, 2) freely consenting to the marital union.

Having therefore in that relationship the constitutive or essential elements needed for marriage, to ban the possibility of marriage between two people of different races was completely unjustifiable. "Proper race" or "equality of race" is not a constitutive element to marriage; therefore no good reason existed to impede these couples from marrying. The essential requirements for marriage have never included a man and a woman of the same race. That is an improper formulation. A man and a woman suffice to attain marriage if they freely consent to the marital union. This is what made the denial of interracial marriage unjust.

But this is, of course, not the case if a black man and a white man had presented themselves for marriage. In this case, it would be completely justified to point out that the necessary elements for marriage are not present. The marriage would not be allowed, not because they were of different races, but rather because they do not have the necessary constitutive elements for marriage, namely a man and a woman.

It's that simple.

Read Part 2.

Fr. Marcel Guarnizo is a philosopher and theologian engaged in the public debate on philosophy, ethics, theology and economics.