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.