LATEST SUPREME COURT BULLETIN:
THE ROMAN CATHOLIC CHURCH DOES NOT
INSIST THAT MARRIAGE EXISTS
SOLELY FOR THE PURPOSE OF PROCREATION
Let me not to the marriage of true minds
William Shakespeare, Sonnet 116
Let us not to the marriage of true impediments
Jean Kerr, “Can This Marriage Be Saved?”
The United States Supreme Court has now heard the argument that Gay couples have no Constitutional right to marry because they cannot engage in procreation. Plainly, this is factually false. Two men can choose a surrogate mother who agrees to bear a child through in vitro fertilization. Similarly, one (or both) partners in a lesbian relationship can also be impregnated by the same procedure. The first principle at work in this regard is not procreation, at all, but the determination of the Court (6 to 3) in 2003, in Lawrence v. Texas, overturning Texas’s criminalization of homosexual behavior. According to the Court, the State has no interest in regulating homosexual conduct; therefore, pursuant to BOTH the Due Process and the Equal Protection provisions of the Fourteenth Amendment, homosexual couples have a constitutional right to a sex life. The Due Process component of the decision clearly implicates federal constitutional law through the similar language of the Fifth Amendment that guarantees life, liberty, and property – which would apply to the federal “Defense of Marriage Act.” Since 1954, and the Court’s decision of Brown v. Board of Education, which included in its scope schools in the District of Columbia, the concept of “equal protection of the law” has been interpreted as integral to the Fifth Amendment’s precept mandating a guarantee of Federal due process.
Associate Justice Antonin Scalia, his talent for casuistry recently refreshed, proffered two questions, one invalid on its face and the other, disingenuous. The easier question was, when did gay marriage become a constitutional right? The answer is: the selfsame moment laws against “miscegenation” (mixed race marriage) were overturned as unconstitutional. The second question had to do with establishing a right of gay couples to adopt children, which Justice Scalia found to be of dubious merit. Is it possible that Justice Scalia really does not know that adoption agencies regularly refuse applicants because they do not meet ferociously high standards that appertain to permanent placement of orphan children? The objective of proponents of gay marriage is not approval by rote of anyone and everyone who wishes to adopt children. The objective is to allow gay couples TO COMPETE for the adoption of hard-to-place AMERICAN children on the same difficult terms as everyone else.
Moreover, when Justice Scalia likes to engage in off-the-cuff sociological musings, suggesting that there is any reputable scientific evidence whatsoever to indicate that adoption of children by gay couples might be harmful to the children, where are the liberal Justices to demand that then and there Justice Scalia name any two such studies? There aren’t any. I remember that an outstanding Surrogate in New York County, Hon. Eve Preminger, who was almost legendary in her scholarship and wide ranging judicial research, declared that gay couples WHO OTHERWISE QUALIFY would have the right to adopt otherwise unwanted and hard-to-place children, but only on the same bases as heterosexual applicants, because there IS NO scientific evidence that such children would be prejudiced by living with two parents of the same gender. Indeed, the only prejudice to such children is the denial to their adoptive parents of all the rights incumbent upon heterosexual parents, because such rights always inure directly or indirectly, to the benefit of the children.
The notion that marriage is a sacrament that is recognized by God as pertaining only to one man and one woman is, by its very nature, an “establishment of religion.” Suppose a heterosexual couple visits with a religious to plan a wedding. All preparations having been made ready, at the conclusion of the ceremony, the cleric pronounces, “By the authority of the laws of the State (Commonwealth) of ____________, I declare this couple to be married.” Same sex couples married in similar religious rites cannot, in most jurisdictions, be declared married. Is this not a denial of the First Amendment guarantee of the freedom of religious exercise? More to the point, if the State has no legitimate interest in regulating homosexual conduct, surely this must also amount to the denial of the equal protection of the law.
The lawyers who argue that public policy requires that marriage be limited to two parties who, by themselves, will engage only in sexual practices that are capable of resulting in progeny are forgetting (to be charitable) that the Roman Catholic Church abandoned that rigid application of dogma in 1930, under the reign of His Holiness, Pope Pius XI. In his encyclical, Casti Connubbi, while maintaining that procreation was the first reason for a married couple having sex, he expanded on the subject. Pope Pius gave the highest form of recognition to a secondary – unitive – purpose of sexual intercourse. The encyclical stated that there was no “moral stain” associated with having marital intercourse at times when “new life cannot be brought forth.”
As for those Justices who wish to penalize gay people because they ignored or were blind to the catastrophic and tragic damage to the commonweal done by the Court’s decision in District of Columbia v. Heller, defining a Second Amendment right that is a PERSONAL right to keep and bear arms, please do not fight yesterday’s lost war by turning justice away from people pleading a different cause, under different Constitutional provisions, affecting a very different class of people. Where you fear the future, I would turn your attention to part of a letter to a friend written by the American novelist, Thomas Wolfe (1900-1938) [Look Homeward Angel, Of Time and the River, You Can’t Go Home Again] shortly before his death.
“Your own philosophy has led you to accept the order of things as they are because you have no hope of changing them; and if you could change them, you feel that any other order would be just as bad. In everlasting terms – those of eternity – you …may be right: for there is no greater wisdom than the wisdom of Ecclesiastes, no acceptance finally so true as the stern fatalism of the rock. Man was born to live, to suffer, and to die, and what befalls him is a tragic lot. There is no denying this in the final end. But we must…deny it all along the way.” [Emphasis in original.]
Harvard Hollenberg is a writer and a constitutional lawyer in New York City.
© Copyright Harvard Hollenberg 2013. All rights reserved.