How the case for marriage was lost, Part 2

By Fr. Marcel Guarnizo

Editors note: This is Part 2 of a two-part series looking at the tactics used during Obergefell v. Hodges oral arguments before the U.S. Supreme Court. Read Part 1.

"The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right." (Justice Sotomayor)

The Constitution states absolutely nothing about what marriage is or is not. Unfortunately, the pro-marriage side conceded this faulty premise and argued based on this faulty premise from the get go.

Sotomayor's implication was clear; if marriage is a fundamental right, then no one can be deprived of that right at any time, for any reason, without committing injustice. Fundamental rights are not dependent on state referendums, courts, or anything else. If it is a fundamental right, it cannot be denied justly to anyone.

Fundamental rights are by nature universal. Sexual preference, on the other hand, can be quite particular. The 2013 U.S. National Health Study found that 96.6 percent of the American population self-identified as straight (their language); 1.6 percent of the population considered themselves to be homosexuals, 0.7 percent bisexual and 0.3 percent transgender. On what basis could one construe a fundamental right based on sexual orientation? There is nothing fundamental or universal about these sexual orientations. The rule of law protecting actual fundamental rights is not biographical. It, by necessity, deals with rights that are universal.

The confusion arises because the ability to marry for those who fulfill the essential requirements for the marriage union is a particular exercise of a fundamental right, which is in fact universal, namely, the fundamental right of association. Citizens possess the just claim vis-à-vis the government that we cannot be forbidden to associate. This because human beings are by nature social beings, and it would be inhuman to ban human association.

But note the distinction. My fundamental right to associate, vis-à-vis the government, is incorrectly understood if a further claim is made, namely that I have a fundamental right to enter any particular association I may choose to join. There is no fundamental right that owes me entry into every association I desire to join. Entry into particular associations is not regulated by the fundamental right to associate.

Each particular form of association has limits and regulations to which I do not have an immediate claim to join at will. Some of the limits for particular associations are "de iure" by law, some are found in bylaws, some are based on certain principles and goals the association seeks to pursue. And some have limitations due to no one's volition but are simply limitations due to natural facts. In the case of marriage, the immediate limitation is due to natural facts. The proper subjects for this association (marriage) must be of different genders (a man and a woman – see my explanation in Part 1). Added to this, this particular form of association has been because of its perceived importance for society, from time immemorial protected for its survival and prosperity by law and custom. It has also been in most cultures elevated by a religious bond that indeed has helped maintain its stability.

It is irrational, therefore, to think that I have a claim in justice to automatically enter any association I may choose.

If this were so, would I also have a fundamental right to join the Redskins football team? Do I have a fundamental right to be admitted into Harvard University? The list would be endless.

Marriage is like the rest of the examples. It is a particular kind of association, one that has limitations, as does every other association. The limitations in marriage are by nature and then by law and custom.

To help see the problem more clearly, let's consider a few more examples. I may desire to be a Swiss citizen, but life determined that I was born in Washington, D.C., and my parents are not Swiss. It is not a violation of my fundamental right of association if I do not receive a Swiss passport.

Some types of association have even stronger natural impediments, impediments that are limitations due to natural facts. Facts of nature are not the result of anyone's injustice or prejudice. I can never belong to the Spanish Royal family, however so desperately I would like to. I may indeed claim to be unfulfilled if not admitted. I could claim that only hatred and xenophobia are the reasons for my exclusion. But all this does not alter the fact that I am not a blood relative of the Spanish Royal family. Is this a violation of my fundamental rights?

Plenty of limitations exist in our lives, and we must learn to cope with them. A man cannot be a member of the fairer sex, regardless of how many operations or appearance changes he undergoes. A man cannot become a woman. For a man to claim a fundamental constitutional right to be recognized as a woman would be equally absurd.

Does a white woman have a fundamental right (or a constitutional right) to be recognized by the rest of the country as black? Can a white woman become black just because she so desires or because she has the "black inclination or orientation"? Imagine if a small group of white people with an orientation to be black constituted a well-funded, vociferous lobby. Would they eventually be able to claim a fundamental human right or a constitutional right to be recognized as black by the 318 million people in the United States?

Likewise marriage has natural limitations; two men simply do not qualify for the association of husband and wife in marriage.

Homosexual men and women are not denied the opportunity to marry

The discussion of marriage as an American constitutional right (which, as we see, it is not) has thus far ignored the fact that men and women with homosexual or bisexual tendencies are not denied the opportunity to marry. Many, in fact, are married to people of the opposite sex. They have willingly chosen a heterosexual relation – with all its difficulties – above their homosexual proclivities. These men and women have chosen to put other goals – family, complementarity in marriage and children – higher than their attraction toward people of the same gender. Undoubtedly, many are happy and find fulfillment in things they consider more important and of higher value than their sexual tendency.

Men and women with homosexual tendencies do fulfill the essential elements required to enter into marriage as we have defined it here: a man and a woman freely consenting to the marital union. As long as a man or a woman with homosexual tendencies intends to marry a person of the opposite sex and there is free consent, marriage is possible.

Marriage is not 'dignity bestowing'

Another point of confusion at the April SCOTUS hearing centered on Judge Kennedy's erroneous view that the institution of marriage bestows dignity on the participants. Consider his statement during the oral arguments: "I don't understand that [marriage] is not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage. … It's dignity bestowing, and these parties say they want to have that same ennoblement."

In retorting, Mr. Bursch (pro-marriage side) went back and forth on this issue, but clearly did not understand that marriage does not confer human dignity and furthermore that the State also cannot confer human dignity. Human dignity is derived from nature by virtue of the fact that someone is a human being. This is completely unalienable and independent of the State or its institutions. Human dignity is in no way affected by the particular marital status of the individual.

The quality of the consent is not constitutive of marriage

The extensive debate before the high court also swirled around the nature of the consent, love, or lack of love, emotional commitment, and the rest, as distinguishing elements between homosexuals and heterosexuals. This was foolhardy.

The State has no duty or ability to verify if love is at play, if there is emotional commitment or not, if children will be desired or not. It is also not part of the State's duty to evaluate the quality of the consent as long as it is free and no natural impediments exist. The quality of the consent is that which the man and woman in a relationship must freely decide and evaluate themselves before they commit to the marital union.

It is also not part of the State's duties to regulate procreation through marriage. That is the totalitarian view practiced by the Chinese communist regime, which enforces a one-child policy and forced abortion or dire penalties if families exceed the one-child quota. When Justice Kagan asked the pro-marriage side, "… are you saying that recognizing same-sex marriage … will harm the State interest in regulating procreation through marriage?" Mr. Bursch replied, "We are saying that Your Honor."

Contrary to Mr. Bursch's position, I argue that the State has no authority to regulate the procreation of its citizens. The small error in the beginning of the court arguments – the confusion of trying to make children an essential element of marriage – led to many mistaken conclusions and arguments, this being one of them.

Bursch improbably argued that two different worldviews exist between heterosexual couples and homosexual ones: "… the other couple (homosexual couples) believes that marriage is more about the emotional commitment to each other, and if that commitment fades, then they may not stay together. …Looking at those two couples … one believing it's all about staying with their kids (heterosexual marriage), the other believing it's all about emotion and commitment (homosexual marriage), could have different results."

Again, in Mr. Bursch's improper understanding of the distinction between so-called homosexual unions and heterosexual marriage, he clearly opposed love and emotional commitment (homosexual couples), to a crude biologism (heterosexual marriage) that would find its belief system in keeping the biological connection to children alive in the mind of the child and society.

Mr. Bursch may yet understand that love and commitment are critical to the quality of consent in the union of a man and a woman. This is not the issue as concerns the essential, necessary elements to attain marriage, as I have tried to explain.

The justices accurately pointed out that his argument made no sense and was rationally unverifiable. This false contraposition failed to see the obvious: Heterosexual marriage is indeed ideally agreed to because there is love and commitment on the part of the husband and the wife.

However, love and emotional commitment is not the distinguishing element between marriage (a man and a woman) and homosexual relations. To create these false distinctions (heterosexual biologism attached to children vs. homosexual love and commitment) is most unhelpful. They simply create error upon error regarding marriage, its proper vision, its ends and its essential definition.

I humbly submit that our side needs to revise its arguments.

The Supreme Court has started down this path, but it will never be able to justly deal with the consequences of the chaos it has just unleashed.

Read Part 1.

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