Sunday, October 3, 2010

The Walker Ruling and the Griswold Connection

(published in the PDN, August 2010)
On August 4, Judge Vaughn Walker ruled California’s ban on same-sex marriage to be unconstitutional. Compared to the plaintiffs, the defense was ill-prepared and under represented. But perhaps its greatest liability was its principal argument:: “the central purpose of marriage...(is to) promote naturally procreative sexual relationships and to channel them into stable, enduring unions for the sake of producing and raising the next generation.”

Under this banner, the defense was doomed, not on August 4, 2010, but on June 7, 1965. On that day the Supreme Court declared a Connecticut law prohibiting the use of contraceptives within marriage to be unconstitutional (Griswold v. Connecticut). That such a law was still in effect as late as 1965 (several states had similar laws) underscores, not just the government’s understanding of marriage, but it’s expectation of least until 1965.

Allowing contraceptives (at first only within marriage) essentially made procreation optional and no longer the “central purpose of marriage”. By default, the purpose of marriage fell to what was left: two people who want to be legally joined. Since same-sex and opposite-sex couples are equally capable of being legally joined, there remained no basis for limiting marriage to opposite sex couples. Thus we have Judge Walker’s ruling: “Gender no longer forms an essential part of marriage; marriage under law is a union of equals.”

Predictably, Christian organizations are protesting the decision. However, most Christians have little moral footing since their acceptance of contraceptives in the marriage bed predates Griswold by 35 years. In 1930, the Anglican Church became the first major denomination to admit contraception. Within a couple decades almost all mainline Christian churches, which had historically condemned contraception, had either reversed their condemnation or simply deleted the issue from their doctrines.

The Catholic Church, alone, held fast to the ancient condemnation of contraception. However, most Catholics ignore this particular teaching...or never hear it, making them even more compromised than their “protestant” counterparts since Catholics at least have the benefit of established doctrine.

With most Christians principally neutered in the same-sex argument and the legal momentum on the side of the advocates, there seems little that can stop same-sex marriage from becoming a constitutional right. However, opponents have one last hope: Barack Obama. Two reasons.

First, the Obama Administration’s flagrant governing against the will of the people has produced a popular backlash the likes of which have not been seen since the American Revolution. And though courts are not supposed to be influenced by popular sentiment, popular sentiment is getting difficult to ignore. The smarter heads at the ACLU (and others) know this and OPPOSED the case against Prop 8 because they felt that “a federal challenge could potentially do more harm than good.”

Second, everyone knows that the future of marriage in the U.S. will come down to the decision of one man: Supreme Court Justice Anthony Kennedy. And in a case like this where emotions and sympathies are in play, Obama, a same-sex advocate, would have done well to curry Kennedy’s good will.

However, in his State of the Union speech in January, Obama took an ill-mannered public swipe at 5 of the justices seated before him. Their sin? Just days before, the Court, in a 5-4 decision, rolled back restrictions on corporate spending in federal campaigns.  Obama recognized the threat to his political future and publicly impugned the Court’s decision. The author of the decision? Anthony Kennedy.

But regardless of how this plays out in the legal arena, Christians, for whom the words “homosexual” and “abomination” seem to rhyme, should revisit what the same Scriptures say about “coitus interruptus” (Gen. 38:9-10) and sterilization (Deut. 23:1). In short, the Scriptures do not condemn homosexual acts because they are homosexual, but because they are intentionally sterile. The Catholic Church even considers intentionally sterile marital acts a greater “abomination” than homosexual acts, calling homosexual acts  only “intrinsically disordered” (CCC2357), while branding contraceptive marital acts as “intrinsically evil” (CCC2370).

The contraception debate aside, marriage minus procreation (intentional) equals a legal contract the same as any other, and thus grounds not only for marriage between two members of the same-sex, but for any arrangement of persons. Perhaps now that both civil and (most) religious authorities have rejected what once was the “central purpose of marriage”, the best solution is to get rid of the troublesome word altogether.

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