After Obergefell: A First Things Symposium

How should we respond to the ruling by the Supreme Court in Obergefell v. Hodges that there is a constitutional right to same-sex marriage? What’s next? 

These are the question that we asked the following contributors—male and female, gay and straight, Christian and Jewish, Protestant and Catholic and Orthodox—to answer in this First Things symposium. –Ed.

Ryan T. Anderson:

The Court’s ruling is a significant setback for all Americans who believe in the Constitution, the rule of law, democratic self-government, and marriage as the union of one man and one woman. The Court got it wrong: it should not have mandated all fifty states to redefine marriage.

This is judicial activism: nothing in the Constitution requires the redefinition of marriage, and the Court imposed its judgment about a policy matter that should be decided by the American people and their elected representatives. The Court got marriage and the Constitution wrong today just like they got abortion and the Constitution wrong 42 years ago with Roe v. Wade. Five unelected judges do not have the power to change the truth about marriage or the truth about the Constitution.

We must work to restore the constitutional authority of citizens and their elected officials to make marriage policy that reflects the truth about marriage. We the People must explain what marriage is, why marriage matters, and why redefining marriage is bad for society.

For marriage policy to serve the common good it must reflect the truth that marriage unites a man and a woman as husband and wife so that children will have both a mother and a father. Marriage is based on the anthropological truth that men and woman are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father.

The government is not in the marriage business because it’s a sucker for adult romance. No, marriage isn’t just a private affair; marriage is a matter of public policy because marriage is society’s best way to ensure the well-being of children. State recognition of marriage acts as a powerful social norm that encourages men and women to commit to each other so they will take responsibility for any children that follow.

Redefining marriage to make it a genderless institution fundamentally changes marriage: It makes the relationship more about the desires of adults than about the needs—or rights—of children. It teaches the lie that mothers and fathers are interchangeable.

Because the Court has inappropriately redefined marriage everywhere, there is urgent need for policy to ensure that the government never penalizes anyone for standing up for marriage. As discussed in my new book, Truth Overruled: The Future of Marriage and Religious Freedom, we must work to protect the freedom of speech, association, and religion of those who continue to abide by the truth of marriage as union of man and woman.

At the federal level, the First Amendment Defense Act is a good place to start. It says that the federal government cannot discriminate against people and institutions that speak and act according to their belief that marriage is a union of one man and one woman. States need similar policies.

Recognizing the truth about marriage is good public policy. Today’s decision is a significant set-back to achieving that goal. We must work to reverse it and recommit ourselves to building a strong marriage culture because so much of our future depends upon it.

Ryan T. Anderson is William E. Simon Senior Research Fellow at The Heritage Foundation and author of the forthcoming book Truth Overruled: The Future of Marriage and Religious Freedom.

Hadley Arkes:

We had no reason, of course, to be surprised by the outcome today. The most we could do was cling to the hope that the result might be less astounding and sweeping than it was. But Anthony Kennedy put in place the decisive premises nineteen years ago in Romer v. Evans: the aversion to the homosexual life could be explained only by an irrational “animus.” After that, it was just a matter of watching as things unfolded: there was no justification for incorporating in the laws an adverse moral judgment on the homosexual life, and the laws that refused to recognize, as a marriage, the coupling of two men or two women, could not then be “justified.”

In the aftermath of the Dred Scott decision, Lincoln came forth with the most penetrating critique, and he proceeded to lead a national movement to counter and overturn that decision. He and his Congress would move through ordinary statutes, before raising the matter to the level of a constitutional amendment. All of these ingredients should be in place. Which is to say that it must start with the voice that rings out the depth of the wrong and summons the resistance—that “this shall not stand.” We will learn here right away, from the reactions springing from our political class, just who among our political figures may be up the task and adequate to the moment But it may not be a man in office, or someone running for anything. Rick Santelli, emitting a cri de coeur on CNBC, triggered the coming of the Tea Party movement. A Robert George, with the attention properly focused, might accomplish the same thing.

But next, it is absolutely critical that Congress puts its hand in. And not merely with the proposal for a constitutional amendment, which cannot make it now out of Congress, but with a statute that tests the limits. There is a principle here running deep, which some of us have sought to restore on the matter of abortion: It is simply not compatible with the moral logic of the separation of powers that the Supreme Court can articulate new “rights” under the Constitution, whether a right to abortion, or a right to same-sex marriage, and then assign to itself a monopoly of the legislative power in shaping that right. The judges should understand that they cannot keep sole control of what they’ve sprung upon the country.

One possibility to put on the table is Carrie Severino’s Defense of Monogamous Marriage Act (DOMMA) to bar polygamy explicitly. Justice Kennedy disclaims that implication arising from his decision, but without explaining how his reasoning would bar that result. Let the Democrats have to take positions on this matter now, and many of them will not vote against polygamy or polyamory. In the call to the resistance we should have something precise to focus on, and this will do as well as anything else.

Ted Cruz had signaled his willingness to make the first move to introduce a constitutional amendment. His amendment would simply deal with the fact that five lawyers have now swept away the laws on marriage in this country. I understand that. But my sense right now is that it may be harder to summon the passions of the country for the passions of the Federalist Society. If we’re doing this at all, we might as well move to the heart of the question, and the thing that all people understand even if they haven’t been to law school: that marriage is about the union of one man and one woman.

Neither amendment has a chance of passing this Congress, and so we should jar ourselves to recall that in a situation radically new we may need to think anew; we may need to look again at the path that has been open but rarely if ever taken: It would be easier to get a movement going from within twenty to thirty states calling for a Constitutional Convention than it would be to launch a constitutional amendment in Congress. Many of our friends have recoiled from that prospect out of a fear that such a Convention may not be confined to this subject—that it may produce novelties and harms unforeseen. But to them I would earnestly say: Wake up to the depth of the crisis before your eyes. And I beseech you earnestly to consider: What lurking dangers unforeseen could plausibly be worse than the dangers that are upon us right now, with the threat of destroying religious schools and churches, and remolding the moral understanding of everyone else, as the culture war is carried, with conviction undiminished, to its further reaches. To draw again on Lincoln, may the vast future not lament our failure to do what we still have it within our means to do.

Hadley Arkes is the Edward N. Ney Professor of Jurisprudence at Amherst College.

Mark Bauerlein:

The only immediately satisfying response to this decision and to the many reversals social and religious conservatives have suffered in recent years that I can think of is financial.

As Patrick Deneen wrote in his First Things essay, “The Power Elite,” corporations have acted squarely against conservative persons and principles. They have pressured judges and politicians and organizations to stand down on social issues, as the Indiana episode a few months back illustrated so well.

It’s time for conservatives to apply principles to their purses. Coca-Cola, ESPN, and Walmart are prominent cases of corporate culture warfare, and every time a conservative buys a Coke, watches SportsCenter, or enters the megastore, he helps them do their damage. No conservative likes to turn his consumption into a political act, but when producers enter social issues that have nothing to do with their products, and do so as partisans, the step is forced upon him.

Conservative leaders, activists, writers, commentators, priests and pastors, rabbis and imams, and celebrities should urge their audiences and congregations to avoid those businesses. Religious institutions should terminate their relationships with them.

This isn’t to be understood as a boycott. Conservatives may or may not send notice of their decision to the corporations’ “Contact Us” pages. Big Business isn’t going to respond to conservatives as they have responded to progressivist advocates, anyway. The model shouldn’t be the Montgomery bus boycott. It should be Thoreau refusing to pay his tax because his money may go to buy guns for use in Mexico. Conservatives will drink other sodas and shop at local, small stores because they don’t want their money to pay for anti-conservative intimidation any more. They won’t stop the momentum of our day, but at least they will act more consistently with their faith.

Mark Bauerlein is senior editor of First Things and professor of English at Emory University.

Shalom Carmy:

Misfortune engenders the obligation of repentance, teaches Judaism. Only yesterday, when the notion of overturning the traditional conception of marriage seemed like a far-fetched fantasy, too many of us put too many of our eggs in the psychological illness basket, condoning on pseudo-ideological grounds therapies that, in our hearts, we knew were a waste of money, the cause of false hope and misplaced guilt. Worse, many of us tolerated without protest bigoted and vulgar voices alien to our sense of decency and outside the bounds of God-fearing discourse. Shall we take umbrage now when those whom we allowed to be humiliated turn their resentment and intolerance on us and on the religion we represent? For this we must repent, before God and before our fellow men.

When a culture treats the family primarily as an arena for self-fulfillment and self-expression rather than first and foremost as the sphere dedicated to the education of future generations, that culture manifests a weakening of its faith in the abiding value and imperative power of its core beliefs. That this spirit of “negation and despair” has corroded liberal Western culture, to its detriment, is an old story. Justice Alito’s dissent notes the rate of illegitimate birth, and nobody is shocked at the routine acceptance of marital infidelity and instability. All this is ominous for the sustainability of Western civilization. To outsiders, however, it appears inconsistent and selective to judge practicing homosexuals, for whom same-sex impulses are usually deep-seated, more strictly than wanton adulterers. If the bonds of faithfulness have frayed, a 5-4 vote in the other direction would not have reversed the ravages of the sexual revolution, the fruit of chronic secular despair under the progressive commodification of late capitalism.

Of course the court’s decision, preempting further debate on the future of marriage as a secular institution, is dismaying to advocates of limited interpretation who oppose the proliferation of novel fundamental and fashionable rights, not least because the newly discovered rights inevitably collide with the rights explicitly enumerated in the Constitution, such as freedom of religion. No doubt upholders of traditional religion will encounter both legal and extralegal pressures from their political masters. My Jewish students are at ease in liberal democracies, unaccustomed to suffering serious penalty or widespread ostracism for their beliefs and way of life. I am not sure how well they will withstand the surging pressure to conform. I am not sure how, and how well, the upholders of traditional religion, and their institutions, will be protected in days to come.

For now, my obligation, and that of other simple believers, is to repent what has been done amiss, and to pursue lives of personal and communal wholesomeness and fortitude, suffused by aspiration, dedication and progressive growth towards personal purity and sanctity. Sanctity begins in the intimacy of self and community. If the witness of such lives helps us to gain tolerance, as I hope, that is good; if it inspires others to join us, even better.

Shalom Carmy teaches Jewish Studies and Philosophy at Yeshiva University and is editor of Tradition, the theological journal sponsored by the Rabbinical Council of America.

Patrick Deneen:

What has been most striking all along is not the division, the passion, at times the vitriol. What has been most remarkable is the insistence by same-sex marriage proponents that all dissent be silenced—whether through threats of economic destruction, legal bludgeoning, and now, increasingly by appeal to the raw power of the State. The firing of Brendan Eich was a bellwether for what has now become a commonplace: the fanatical insistence that all opposition be squelched, and more—that even belief in an alternative view of marriage be eradicated. In the days since the decision, one newspaper editor has declared that his paper will no longer publish any op-eds that diverge from the “settled” law of the land (as Brandon McGinley shrewdly notes, no such ban has been instituted over opposition to Citizens United), while another analyst has suggested that the dissenting Justices have engaged in “treason.”

While many have pointed to the 1973 decision of Roe v. Wade as an obvious historical analogue for the Obergefell decision, to my mind, the insistence that all must conform to the new, official definition of marriage that no civilization has ever endorsed until yesterday seems to be more aptly compared to life under Communism. The likening of “denial” of same-sex marriage to racial bigotry has proven to be a wildly successful tactic—but it is premised on a lie, the lie that the conjugal view of marriage has as little basis in reason or nature as denial of basic rights to people based upon the color of their skin. The analogy’s success has relied upon the loud and insistent demand that we not notice, nor regard as relevant or germane, the fact that men and women are different, and most importantly, that their sexual union is oriented toward reproduction.

The “monopoly of violence” possessed by the State is now a main weapon in perpetuating this lie, and will be used mercilessly and without cessation against those who persist on pointing out that it seeks to perpetuate a lie. But violence will serve as a last resort, merely backstopping the education system, the economic players, and even family members who will work to correct wayward thinkers (the divisions in families will make what is to come like a Cold Civil War). Like communism’s comprehensive efforts to root out dissent and “re-educate” people to regard all property as common and our care for all people of the world equal and without distinction, the very depth and extent of the lie requires that the lie be insistently repeated and dissent be comprehensively squelched.

“Lies can only persist by violence,” wrote Aleksandr Solzhenitsyn. The bolder and falser the lie, the more insistent the calls to conformity, and the elimination of dissent. As during the years when the Gulag was the alternative (though the “Gulag” today is financial bankruptcy and professional suicide), the easy path was to go along, accept the order in spite of its absurdity, get ahead according to the rules established by those who ruled. But Solzhenitsyn said no—even to the point of arrest and exile. “Therein we find, neglected by us, the simplest, the most accessible key to our liberation: a personal nonparticipation in lies! Even if all is covered by lies, even if all is under their rule, let us resist in the smallest way: Let their rule hold not through me!”

And against those who dare to deny the lie, watch them explode in anger, mockery, denunciation, threats and finally the prospect of ruin and imposition of State-sponsored violence. And know that when they do, it is not a sign of their power, but their fear that the lie might be seen for what it is in the light of truth.

Patrick Deneen is the David A. Potenziani Memorial Associate Professor of Constitutional Studies at the University of Notre Dame.

Rod Dreher:

Earlier this year, First Things published an essay of mine calling for the “Benedict Option,” my term for a radical rethinking of the place of small-o orthodox Christians in the public square. My belief, in a nutshell, is that the common culture—insofar as we have one—is so far gone into decadence and individualism that the only sensible thing for us to do is to strategically retreat from the mainstream to strengthen our Christian commitments, and our church communities. The Obergefell ruling, I think, only makes the necessity of the Benedict Option more urgent.

Why? Because as Justice Samuel Alito pointed out in his dissent, forces in our culture that wish to smash all dissent from LGBT orthodoxy will use the Supreme Court’s constitutional imprimatur as license to marginalize and persecute we who believe in Biblical teaching. Chief Justice John Roberts portentously warned Christians that the weak First Amendment assurances in the majority opinion would scarcely protect us. These are not wild-eyed prophets crying in the desert; these are Supreme Court justices, telling us that the Court majority—a majority that, let’s not kid ourselves, speaks for the Zeitgeist—cannot be relied on to respect the rule of law when religious practice contradicts gay rights. Justice Antonin Scalia even raised the spectre of the end of democracy—a claim that earned this magazine a tsunami of opprobrium when it deployed those words in 1996, but which today was a central part of a dissenting Supreme Court opinion.

Conditions are about to get much worse for us. We must reflect soberly on this fact, and act wisely, but decisively. Just over a decade ago, Robert Louis Wilken, writing in First Things, said that the greatest danger facing the Church is forgetfulness. That is, in our post-Christian culture, we are rapidly losing memory of what it means to be a faithful Christian. “Nothing is more needful today than the survival of Christian culture, because in recent generations this culture has become dangerously thin,” he wrote. “At this moment in the Church’s history in this country (and in the West more generally) it is less urgent to convince the alternative culture in which we live of the truth of Christ than it is for the Church to tell itself its own story and to nurture its own life.”

We lost the culture long before we lost the Supreme Court. Research by Notre Dame sociologist Christian Smith shows that most young American Christians have exchanged the orthodox faith, in all its iterations, for a pseudo-religion he calls Moralistic Therapeutic Deism. The culture war is no longer between the church and the world, but is now well established within the church. This, I think, is why Wilken’s counsel is far more vital today, after Obergefell. The pressure to apostasize under persecution from the state and within civil society (we are all Brendan Eich now) will be overwhelming. True, we cannot retreat from evangelizing the world, but we Christians need a radically new approach suited to these post-Christian times. If we are to endure as the Church, and to be what the world needs us to be, we have to pioneer new ways of living out our faith in community, in a chaotic and hostile culture. Alasdair MacIntyre famously said that we need a “new—and doubtless very different—St. Benedict.” The most important task for the Church today is to figure out, with hope but also with a sense of realism, how to be St. Benedicts.

What else is there?

Rod Dreher is a senior editor at the American Conservative.

Robert P. George:

How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”

Today we are faced with the same challenge. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of Roe v. Wade applies with equal force to Obergefell: “It is not constitutional law and gives almost no sense of an obligation to try to be.” What Justice Byron White said of Roe is also true of Obergefell: It is an act of “raw judicial power.” The lawlessness of these decisions is evident in the fact that they lack any foundation or warrant in the text, logic, structure, or original understanding of the Constitution. The justices responsible for these rulings, whatever their good intentions, are substituting their own views of morality and sound public policy for those of the people and their elected representatives. They have set themselves up as superlegislators possessing a kind of plenary power to impose their judgments on the nation. What could be more unconstitutional—more anti-constitutional—than that?

The rule of law is not the rule of lawyers—even lawyers who are judges. Supreme Court justices are not infallible, nor are they immune from the all-too-human temptation to unlawfully seize power that has not been granted to them. Decisions such as Dred Scott, Roe v. Wade, and Obergefell amply demonstrate that. In thinking about how to respond to Obergefell, we must bear in mind that it is not only the institution of marriage that is at stake here—it is also the principle of self-government. And so we must make clear to those candidates for high offices who are seeking our votes, that our willingness to support them depends on their willingness to stand, as Abraham Lincoln stood, for the Constitution, and therefore against judicial decisions—about marriage or anything else—that threaten to place us, to quote Jefferson, “under the despotism of an oligarchy.”

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Timothy George:

In the summer of 2009, the late Charles W. Colson, Professor Robert P. George, and I drafted the Manhattan Declaration which called on Christian believers of all denominations to stand fast in support of what we deemed to be the three most pressing moral issues of our time, namely: the sacredness of every human life from conception to natural death, the dignity of marriage as God intended it be, a lifelong conjugal and covenantal union between one man and one woman, and religious freedom for all persons. Now, in the summer of 2015, the Supreme Court decision in Obergefell v. Hodges undermines marriage and threatens religious freedom.

The erosion of the marriage culture has happened quickly. For example, in 2009, newly elected President Barack Obama and then-Secretary of State Hilary Clinton both affirmed the understanding of marriage set forth in the Manhattan Declaration. The Supreme Court’s dictum today does not bode well for the future of our democracy. The ability to decide such a fundamental matter related to the flourishing of family life and the integrity of the common good has been taken away from the people and their elected representatives in each of the fifty states.

Christians who may be discouraged by this turn of events should take heart by considering three other Supreme Court decisions of the past. Dred Scott v. Sanford (1857) denied the rights of citizenship to African Americans. Plessy v. Ferguson (1896) authorized race discrimination under the pretext of “separate but equal.” Roe v.Wade (1973) asserted a right to take the life of children still waiting to be born. The first two decisions were subsequently overturned by constitutional amendment and subsequent court action.

There is no guarantee the same thing will happen with today’s decision. But Christians should work toward the reaffirmation of marriage as it has been maintained across all civilizations and in our own country until the very recent past.

Marriage, like religious freedom and life itself, is fundamentally a gift from God, not a contrivance of our government or any government. As we wrote in the closing words of the Manhattan Declaration: “We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.”

Timothy George is the founding dean of Beeson Divinity School of Samford University.

Wesley Hill:

In his memoir Denial: My Twenty-Five Years Without a Soul, the gay journalist Jonathan Rauch says that there once existed a frightened young man tortured with the certainty that there was no place in the world for the love he experienced. That man was Rauch, and there was no home for him—none, that is, until he and his fellow Americans decided he had the right to marry. “They and he have found, at last, a name for his soul. It is not monster or eunuch. Nor indeed homosexual. It is: husband.”

When I read Rauch’s book, that last sentence left a lump in my throat. That receiving the word husband felt to Rauch like the relief of a negative biopsy—“You’re not sick or twisted or crazy; you’re just hindered from giving and receiving love, and now the hindrance is removed”—goes a long way toward explaining the jubilation so many gay and lesbian people feel in the wake of the Obergefell v. Hodges SCOTUS ruling. Finally, their loves may be dignified not with the anemic moniker friend or partner or the clinical epithet disordered or the disdainful slur pervert but rather with the venerable, ordinary, immediately recognizable words husband or wife.

From my perspective as a lifelong churchgoer, what stands out about Rauch’s conclusion is its familiarity. His portrayal of marriage as the main place to find dignity, belonging, and the end of loneliness sounds eerily similar to the view of marriage promoted in otherwise orthodox, traditional Christian churches. In countless sermons, songs, Bible studies, and informal pew-side conversations, I heard that message like the peal of a gong: singleness equals alienation, marriage means home. (It’s no wonder, given this theology, that whole ministries sprung up to try to rescue gay people from promiscuity and point them toward “traditional” heterosexual marriage.)

Until the church turns away from such heterodoxy and begins to embody afresh a lesson from the life of its celibate Lord—that the truest, deepest human love is available outside of marriage as well as inside it, in spiritual friendships, in intentional communities, in vowed brother- and sisterhood, in devoted serv