SCOTUS Decision Analyzed

On Friday, June 26, 2015, the Supreme Court of the United States issued a decision in the case of Obergefell vs. Hodges.   At issue was the purported right of homosexual couples to marry and to have that right enforced across state lines. In a 5-4 decision, the court ruled that all states must issue marriage licenses to homosexual couples that ask for them.  Justice Anthony Kennedy wrote the majority opinion in the case.

My purpose is to analyze the moral argument that underlies Kennedy’s opinion. I am not equipped to evaluate questions of constitutional interpretation, precedent, statutes, and case law. However, one does not need to know much about the law to understand Kennedy’s argument. That is because the law barely entered into Kenney’s thinking.  As Chief Justice John Roberts noted in his dissent, “The majority’s decision is an act of will, not legal judgment.”  In other words, Kennedy and the majority hope for societal acceptance of homosexuality. They simply want to use the court’s power to further that acceptance.

At the heart of Kennedy’s argument is his desire to force social acceptance of gay sex.  It is not enough to legalize gay sex. The state must promote gay sex, so that gay couples can feel good about themselves. “Outlaw to outcast may be a step forward,” he writes, “but it does not achieve the full promise of liberty.”  Kennedy explains:

 As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.

We find the same argument in his treatment of gay adoption. We must legalize gay marriage, he says, or else the children of gay parents will feel bad about themselves. They will “suffer the stigma of knowing their families are somehow lesser. . . . The marriage laws at issue here thus harm and humiliate the children of same-sex couples.”  According to Kennedy, the state demeans homosexual relationships if it fails to dignify them with the title of marriage.  It treats homosexual unions as essentially different from heterosexual unions. Kennedy finds that intolerable.

There are a number of reasons he thinks that homosexual unions are of equal dignity to heterosexual unions.  He asserts, for instance, that homosexuality is normal.  He also asserts that homosexuality is healthy (that it poses no obstacles to successful societal integration or the adoption of social roles).  He claims that homosexuality (and sexual orientation in general) is an immutable condition. And crucially, he asserts that homosexual persons cannot successfully make the commitment of marriage to persons of the opposite sex.  He writes: “their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

None of those things is true, but none of them matters either. The state does not promote marriage to make people feel good about themselves. According to the Catholic bishops, the state promotes the marriage of men and women because only men and women make babies and babies have an inherent right to their biological parents.

As Catholics, we agree that homosexual persons and their children deserve to be treated with dignity and respect.  But homosexual sex is not dignified and is no reason to destroy the natural bond between parents and children. (Gay adoption can only mean taking a child away from at least one biological parent.) Our dignity does not consist in the alleged immutability of our sexual orientation, but in our rationality, our freedom, and our openness to the transcendent.  In light of that dignity, we must make responsible use of our sexuality for the good of our children and our society, whether or not we feel good about ourselves.

Kennedy’s assessment of homosexuality is also wrong.  To begin with, homosexuality is not normal.  It may be enduring, present throughout much of history, but it is not normal. According to a 2013 study by the CDC, homosexuals amount to 1.6% of the population while 97.7% of the population identifies as straight.

Second, homosexuality does pose challenges to health, psychology, and social well-being. The New Family Structures Study, led by Sociologist Mark Regnerus and published in Social Science Research (June 2012) has documented significant difficulties faced by children raised by same sex-couples.  The couples themselves also suffer from much higher rates of infidelity, dissolution, and physical, psychological, and psychiatric comorbidities.

Third, it is certainly true that many homosexuals experience their sexuality as something intractable.  But is it immutable?  That depends on what you mean.  There are certainly men and women who have changed their sexual behavior (from straight to gay; from gay to straight).  More importantly, there are those who have left the gay lifestyle for successful marriage, even though they may experience that as a struggle.

Finally, it is just not true that same-sex marriage is the only path to marital fulfillment for homosexual persons. Kennedy himself wrote in another decision (Planned Parenthood v Casey) that the state should not dictate the meaning of existence. But here Kennedy does just that. He declares as an absolute truth that a gay man cannot make a fulfilling commitment of marriage to a woman (or a woman to a man). This is perhaps the most demeaning thing I have ever read about gay people.

8 thoughts on “SCOTUS Decision Analyzed

  1. Bob - February 12, 2016

    Another point that Justice Kennedy has forgotten that Dr. David touched on is that there are many homosexuals who are fulfilled in committing to a heterosexual marriage and producing/raising children. This is what marriage is about! I know the opposite maybe true as well, but deciding to end a marriage for sexual reasons or because I don’t have feelings for you is not a reason to re-write a law or to dissolve the context of marriage based on counter culture or mainstream thought, especially when logic and reasoning are compromised.

  2. Glenn Waldrop - July 17, 2015

    Dr. Anders,

    Just a brief comment. This ruling stands reason on its head, and is based on an evolving “consensus of the culture” that everyone has some constitutional right to engage in sexual conduct based upon their “feelings” and that no one has the right to deny them the right to have those “feelings” recognized by the state. Those who argue that people who struggle with same sex attraction have the right to act on their “feelings” ignore the moral imperative of living a chaste life. Heterosexual men and women do not have moral liberty to engage in heterosexual conduct outside the context of marriage, even though they may and most probably are tempted from time to time. Justice Kennedy has enshrined as a constitutional entitlement the right of people to marry based upon “feelings” without regard to what marriage has been since it first existed, as a matter of both natural and moral law–making law based upon “feelings” or “cultural consensus” demeans the law and the constitution, at least in my opinion.

    1. Mark Z - November 10, 2015

      That point is huge. The rule of Law now means nothing. One has to ask who can abide by capricious ‘laws’ that defy logic and flout morality? Anarchy is soon to follow.

  3. Kevin Williams - July 15, 2015

    Dr Anders, I am a new convert (3 Weeks) and your interviews on Journey Home contributed to my resolve to come into the Church. I try to listen you daily here in Ft Collins Co. The Church Fathers played a huge part as well. Perhaps the biggest motivation was that Ive witnessed the Catholic Church on issue after issue standing in the gap unashamedly and virtually alone. Im a pro life activist and Ive been hugely burdened for the movement to step up and condemn contraception. The Catholic Church is the only uniform voice courageously vocal in this unpopular debate. I decided I had to be part of such a Church! I produced a pro life documentary recently. It can be seen from my website A year ago I was in Sante Fe promoting it. Yesterday I found a note in my Bible from that trip. In a motel room at 330 AM I wrote this in the margin of my Bible while I still disagreed doctrinally on many points with the Church: “I am thinking of going through Catachism and joining the Catholic Church to demonstrate my own willingness to demonstrate unity in a segment of the faith where I disagree doctrinally, but agree spiritually. I asked the Lord for a verse and opened my Bible and started reading the first verse I saw. Psalm 46:5 “God is in the midst of her, she shall not be moved.” I knew God was saying “Hello” to me in that verse! Your own testimony has contributed hugely toward disolving those doctrinal disagreements. Thank you Dr Anders. God Bless you. kevin williams

    1. Jim M. Roane - August 8, 2015

      Kevin, I would say then that you are becoming a Catholic for the wrong reasons. The Church is not a club for members who share a few items on a common social agenda, but rather it is “God’s household, which is the church of the living God, the pillar and foundation of the truth (1 Tim. 3:15).” Not just the foundation of some convenient truth that we may agree upon, but rather the foundation of all truth, even that truth that you may personally find unappealing. May God grant you the grace to see the difference.

      1. Kevin Williams - August 26, 2015

        Thanks Jim for your thoughts. I in fact DID join the Catholic Church because I believe it is “God’s household, which is the church of the living God, the pillar and foundation of the truth (1 Tim. 3:15)

        I fail to see from my post which of the several reasons (Which are only a few of a plethora of reasons) led you to believe I joined the Church because I perceive it to be a “a club for members who share a few items on a common social agenda,” Fighting for and pleading for the lives of innocent unborn children is not merely a “social agenda.” It should be something every Christian should be willing to live and die for. Like Jesus did.

  4. Suzanne Maschler - July 13, 2015

    Thank you for stating this so clearly. I’m in my 70s and lost a brother who was homosexual 31 years ago to either suicide or murder, but we don’t know for sure which. My other brothers decided not to pursue the case because our mother had been very ill and that would have been even more traumatic for her. I worked with him for several years in beauty shops and we were very close. He was 13 years my junior and I was like a mom for him when he was born. Mom was not well then, either. He hated being gay. He hated the “gay-lib” movement. He told me that they had every intention of making society accept them no matter how painful and/or absurd that might be. He was very depressed before his death because his “friend” had betrayed him after persuading him to give up all he had…his business, his home, etc….to follow him to another state. A priest friend who worked in the San Francisco area told us that there was more drug and alcohol addiction and suicide in the gay community than with any other group of people.
    Read This explains the power behind the issue. May God have mercy on his soul, as well as all others who promote this travesty.
    God bless you in all you do…I try to listen everyday….never too old to learn!

    1. Andres Garcia - July 14, 2015

      I’m sorry for your loss. I’ll pray for your brother. Nobody should have to go through depression or suicidal thoughts for their orientation. I currently have a friend who is gay and they are depressed. She’s a great person all around. I’m sure you’re brother was as well. May God bless his soul

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