Failing to Make the Moral Case for Marriage | Robert R. Reilly | CWR
The retreat to the position of defending religious freedom means that the issue of the immorality of sodomy and other homosexual acts has been abandoned—both in and out of court
Why have the pro-natural family forces been losing in court? Intentionally or not, Judge Richard Posner explained the reason in a 7th Circuit Court ruling (Sept. 4, 2014), in which he decided against the Indiana and Wisconsin laws restricting marriage to a man and a woman:
"The state [Wisconsin] does not mention Justice Alito’s invocation [in the Windsor case] of a moral case against same-sex marriage, when he states in his dissent that ‘others explain the basis for the institution in more philosophical terms. They argue that marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.’ [US v. Windsor, 133 S.Ct. 2675, 2718 (2013).] That is a moral argument for limiting marriage to heterosexuals. The state does not mention the argument because as we said, it mounts no moral arguments against same-sex marriage.” [Baskin v. Bogan, 766 F.3d 648, 669 (7th Cir. 2014) (emphasis added).]
While Justice Alito recognizes that there is a moral argument for limiting marriage to heterosexuals, it was not only the State of Wisconsin that failed to make such a case. Neither have the States of Michigan, Kentucky, Ohio, or Tennessee in Obergefell, the decisive case now before the US Supreme Court. I believe that this is one of the key reasons that the pro-natural family position has been losing in most of the cases thus far.
With the moral foundation missing, an air of unreality pervades the federal court system. Let us see how unreal by looking at a couple of examples. When invalidating Oregon’s constitutional ban on same-sex marriage (May 19, 2014), US District Judge Michael McShane wrote in his opinion,
“I believe that if we can look for a moment past gender and sexuality, we can see in these [same-sex] plaintiffs nothing more or less than our own families. Families who we would expect our constitution to protect, if not exalt, in equal measure.” [Geiger v. Kitzhaber, 994 F. Supp. 2d 1128, 1147 (D. Or. 2014).]
This is an extraordinary remark. What Judge McShane calls “gender and sexuality” is the only means by which families are generated. Since families come from parents, you cannot look past parents and still have a family -- because there would be no family there. Homosexual acts cannot generate families; therefore, their “families” cannot be the same. If there are children present, we may be sure that both parents of the children are not present in that family. That is a lot to look past.
In Virginia, US District Judge Arenda L. Wright Allen voided as unconstitutional that part of the Virginia state constitution and the Code of Virginia that define marriage as between one man and one woman. Ineptly, she began her decision on February 13, 2014, by confusing the basic texts of the American Founding (since corrected by her). She apparently thought that the phrase “all men are created equal” comes from the Constitution. It is, of course, perhaps the single most famous line in the Declaration of Independence. Judge Wright Allen appealed to this principle to endorse same-sex marriage on behalf of two lesbian and homosexual couples who brought suit against Virginia.
Why did Virginia have laws against unnatural marriage in the first place?