Comments 5

  1. I think marriage is and always has been the de facto circumstance of two or more people who maintain a relationship largely focused on creating and supporting a family. Typically this has meant a man and one or more women procreating and/or adopting children. Gay couples may be exceptional, but they still fit within this frame especially if they aim to raise children as I think they should be encouraged to do, especially if their religious tradition values it.

    Kennedy’s position is not bad. It expresses a fairly existentialist outlook as you seem to be emphasizing, but I don’t see that as a great problem or fundamentally incompatible with Christianity, just constructions of Christian thought that are tied to its deep assimilation of classical metaphysics before the Reformation. You are going too far and putting words in his mouth when you refer to “a full menu of options.” Shifting from no option to marry to having the option to marry creates two options where before there were none. Scalia’s shopworn pundit reaction of “why just two and not four men?” is not a real issue. It will only become an issue if the culture largely embraces polygamy. That is how everything works. Anyone sincerely worried about the future emergence of legal polygamy would do well to address it in the culture proactively. Similarly, I don’t see any legal system ever agreeing with the principle of “do whatever you think is right.” That is not what was being said in this decision by any stretch of the imagination.

    Ginsberg would be more correct to say “traditional marriage” ended when we stopped looking at it as essentially defined by procreation which, especially for Christians, did tend to mean treating women as property. Coupled with St. Paul’s apparent support for never saying no to sex in marriage, this was a recipe for abuse. Notably the Jewish position has for much longer been to encourage sexual relations in marriage with the proviso that a woman may always refuse. Treating women as independent and their bodies not as a man’s property has radically positive implications wherever it is practiced.

    I feel your law/men distinction is invalid; it’s men all the way down. Men create and interpret laws. The idea that a text or any part of reality carries its own meaning or interprets itself merely denies the act and responsibility we have for doing it. I do not think it is possible to have a mature understanding of community or tradition without conceding this. For various historical reasons, Jewish, Catholic and European Protestant traditions have an easier time coming to terms with the fact that truth is not simply given but co-created, despite their deep and rich Aristotelian legacy. Anglo-American fundamentalism has a harder time, as does Islam. This is a much deeper problem of modernity and epistemology that deeper thinkers than our justices have been grappling with for at least two centuries.

    1. Hi Bruce,
      Thanks for your comment.

      I don’t think I’m putting words in Kennedy’s mouth. As I quoted him from Casey, his view is that you are denied your full personhood without autonomy to construct your own beliefs about the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Part of this includes freedom to act on those beliefs, such as by aborting a child or marrying whom you wish. Again, if you are not free to do as you find right in your own eyes, you are limited in a way that may be dehumanizing. I’m not saying Kennedy might not have limits on how far this philosophy extends (he clearly does), but that doesn’t affect his views.

      I’m not sure exactly where you’re going with the critique of Ginsburg, since you seem to define marriage at the outset in terms of raising a family. I think your reading of Paul may be a bit cramped (“he says a husband’s body belongs to his wife as well, not that there’s no saying “no” … and just giving a woman the right to say no, presumably without reciprocal rights for the husband, seems a little odd too), but I don’t think it’s central to what you’re saying. Paul’s discussion seems to say that neither party in marriage is independent and neither party is free of obligation to the other. I think the implications of that for marriage are far more radical and positive than the contractual model (a legal union of two independent, consenting parties) that dominates the public image today.

      As to your last point, I am not denying human agency or responsibility in creation of the law, but people are capable of creating things and entities that have an existence or reality separate from their creators. If a contractor builds a house for you, you don’t say you live in a contractor, you say you live in a house. Similarly, if legislators create laws, then it may be that we are ruled by those laws and not by the legislators. Of course, that analogy isn’t perfect, and there is an administrative (and judicial) element which adds meat and meaning to the text on the page, but the thrust of the law/man question deals with what happens when we run up against human error or procedural roadblocks. If we plow ahead and say that the meaning in the minds of the legislators can trump the words on the page or if we create rights because we’d really like to see them be true, then we limit the meaning of the words on the page, making them irrelevant either because of exceptions or a vague breadth that encompasses whatever we want it to. It’s not always the most efficient way to do things, and I don’t hew to the premise in all situations, but the American system was designed based on checks and balances to limited power that are embedded in the language of the laws, something we risk abandoning if we make the wording of such provisions irrelevant. Yes, its men (and women) all the way down in that it’s man-made, but the law acts as a check external to the lawmakers, and if ignoring that is a necessity for a mature understanding of community or tradition, then perhaps my immature thinking is preferable.

      1. I was referring to your implication that Kennedy thinks “we [are] dehumanized when we do not possess a full menu of options regarding how we wish to live and conceive of our lives …. it sounds like any rule but “everyone does what is right in their own eyes” does affirmative harm to the people being ruled.” He has said nothing about a “full menu,” and the antinomian or anarchic implication is not there either. Freedom of conscience is such a deeply set principle in formatively Protestant nations like ours, I don’t see anything new or outlandish in the idea that it is dehumanizing to be deprived of the ability to align one’s life (including speech and behavior) with one’s deepest beliefs and values. I am sure Kennedy believes there are necessarily limits to this view; we all do. It usually comes down to defining unacceptable self-harm or harm to others.

        I wasn’t trying to go anywhere with Ginsberg, I just think her real target is not the former classification of women as property but the classification of men and women, sex and marriage as fundamentally procreative and unintelligible or meaningless and valueless apart from childbearing. One unfortunate and unnecessary consequence of this view was to treat women as property.

        On Paul, I was trying to be brief, but obviously it is a reciprocal ethic — “do not deprive each other.” (Nobody thinks it necessary to emphasize that a husband may refuse sex for obvious reasons.) My point was that this text has been abused by men historically to justify what has only recently been defined as marital rape. Taken literally and legalistically it becomes a proof-text for “you may not refuse me.” But when agency is explicitly shifted to the “weaker sex” to limit the stronger you get a different result that I would say guides reciprocity better.

        On the last point the only analogy I see as helpful is Dickens’ famous line “the law is an ass.” When you express concern about what legislators may intend you wish to have the law to oppose them, and when the law is disfavorable you will want legislators to oppose it. It all comes down to men as legislators, laws from prior legislators, and what we each see as right in our own eyes — or hearts or consciences. Far from implying chaos, we generally have a remarkable consensus or a functioning plurality of consensus groups.

  2. Thanks Prof Roth for your breakdown of the decision. If you have not yet read the Christianity Today article, “Here We Stand”, I encourage you to do so. I am surprised that only Dr. Mouw is listed as a supporter and not other Reformed leaders. The issue for Christians is whether we stay with what the Scriptures teach or the five Supreme Court judges.

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