The Long, Legal Road to Marital Anarchy
This column by ACRU Senior Fellow Robert Knight was published May 24, 2015 by The Washington Times.
As the calendar slips toward the lazy, hazy, crazy days of summer, there’s a storm cloud hanging over America that will release its thunder in late June.
That’s when the U.S. Supreme Court is widely expected to declare a constitutional right to same-sex “marriage.”
We are at a moral precipice. America’s Founders could scarcely have imagined a handful of people in black robes becoming so powerful and arrogant that they could defy natural law with the stroke of a pen. The question is: Will they do it?
The drive to radically redefine marriage didn’t happen overnight. It’s the rotten fruit of the sexual revolution’s march through the institutions, along with 50 years of court rulings that pushed atomistic individualism at the expense of the family.
In his monograph The Supreme Court of the United States versus the American Family, the late Michael Schwartz noted: “While our legal system was maintaining the fiction that individuals were the only reality, we were living the truth that individuals are all members of families and that families are the real components of society.”
With the culture cut loose since the 1960s from its Christian underpinnings, Schwartz wrote, “the radical individualism that had been latent within our official legal structure is no longer held in check, no longer meets with the healthy resistance that had moderated and humanized it, and it is operating today in a fashion that is radically opposed to family solidarity.”
Mr. Schwartz penned this in 1983. But much happened before that. It took 178 years from America’s founding until the U.S. Supreme Court found a “right to privacy” in the U.S. Constitution. Griswold v. Connecticut (1965) involved a challenge to Connecticut’s law prohibiting the sale or distribution of contraceptives even to married couples. With William O. Douglas writing the decision, the court discovered a “right to privacy” in the “penumbra” of the Bill of Rights, largely based on the sanctity of marriage.
In 1972, contraception advocate Bill Baird challenged a Massachusetts law barring the sale of contraceptives to unmarried people. In Eisenstadt v. Baird, the court advanced the “right of privacy” beyond the marital relationship. Justice William Brennan cited Griswold for moral weight, and then abandoned the premise on which it rested —- the sanctity of marriage. The “right of privacy” shifted entirely to the individual.
It wasn’t much of a leap the next year when the court overturned all state abortion laws in Roe v. Wade, with Justice Harry Blackmun citing the penumbra-found right to privacy established in Griswold. This time, the court rested it primarily on the Constitution’s due process clause.
In 1976, the court handed down what Schwartz called “the most outrageously anti-family decision ever” in Planned Parenthood of Central Missouri v. Danforth. The ruling cut fathers out of the picture, with the court striking down Missouri laws requiring spousal consent before an abortion and parental consent before a minor’s abortion. The court thus made marriage irrelevant on the most momentous decision —- the taking or preserving of a human life that would be a member of the family.
In 1977, in Carey v. Population Services International, the court vacated a New York law that barred the sale of contraceptives to 15-year-olds and younger. Parents no longer had the right to know if their teens were equipping themselves for premarital sex.
The courts continued to pound away. In 1979, in Bellotti v. Baird, the Supreme Court established the “mature minor” standard, striking down a Massachusetts law requiring parental consent for a minor’s abortion.
Having driven wedges between husbands and wives and parents and their children, the courts turned to marriage itself. In 1993, Hawaii’s Supreme Court ruled that the state’s marriage law violated the state constitution’s equal protection provision regarding “sexual orientation.”
This triggered a massive effort to protect man-woman marriage in the law through the federal Defense of Marriage Act (1996) and dozens of state constitutional amendments or statutes. Meanwhile, Justice Anthony Kennedy authored rulings vacating Colorado’s voter-approved Amendment 2, limiting civil rights protections to categories other than “sexual orientation,” and in 2003 (Lawrence v. Texas) striking down anti-sodomy laws.
A decade later, in Windsor v. United States (2013) the court struck down portions of the Defense of Marriage Act, triggering an avalanche of rulings that legalized same-sex “marriage” in all but a handful of states. Several legislatures followed suit, but only in Maine, Maryland, Minnesota and Washington did voters change the definition.
So now we find ourselves at the end of a long legal jihad against marriage and family, wondering whether the Supremes will declare a new “right” out of whole cloth —- or pull back from that legal cliff.
A lot of loud voices are urging them to jump. But there is another voice, and it speaks in an entirely different language, directly to the human soul. Perhaps they will hear that one and honor His design for marriage.