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Codifying Same-Sex “Marriage” into Law

By Fr. Shenan J. Boquet

In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection.

― Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, no. 5

Common sense suggests that in a democracy, major legal change should usually follow a change in public opinion. That is, the more people support some new idea, the more likely they will be to elect politicians who support that idea, and the more likely it will be that those politicians will in turn put forward and vote in favor of legislation enacting that idea.

The practical upshot of this view is that if you want to effect political change, you should first focus on changing people’s minds.

However, progressive activists have long known and exploited the fact that the reverse can also be true: sometimes it is more effective to first pursue political change, in the hope that once the law has been changed, then public opinion will follow suit.

Their preferred method for doing this has been to target the courts. Although in theory the courts exist only to interpret existing laws, experience shows that it is sometimes possible to find a judge, or a set of judges, who are willing to so radically “interpret” existing law that their decisions effectively amount to creating wholly new laws.

The Judicial Activism of Roe

One of the most egregious instances of this kind of judicial activism was Roe v. Wade, in which the U.S. Supreme Court arrogated to itself authority that it did not possess, and “discovered” a non-existent “right” to abortion in the U.S. Constitution.

By any reasonable interpretation of the Constitution, an issue so important as abortion should have gone through the U.S. legislature. Instead, in 1973 a group of seven unelected judges issued a sweeping ruling that unilaterally overruled the pro-life laws in numerous states and ushered in five decades of legalized child-killing, leading to over 60 million abortions. And they did so based upon the ridiculous idea that the Constitution – written and supported by U.S. Founders who would uniformly have found the very idea of abortion abhorrent – somehow secretly included this “right.”

Those pro-abortion judges and the pro-abortion activists who worked to bring Roe before them hoped that even if the American people did not support legal abortion, they would come to accept it once it was legalized by the High Court.

Such a hope is not ill-founded. Psychologists speak of something called the “status quo bias.“ What this bias suggests is that people tend to prefer keeping things the way they are, rather than “rocking the boat” by pursuing change that involves a great deal of effort and that (they fear) may lead to unpleasant unintended consequences. In creating radical social change through the courts, progressives have tapped into the status quo bias, assuming that the American people and legislators would not muster the energy needed to oppose the court’s decisions.

gavel with open book

Then, of course, there is the brute fact of desensitization. While people might have an intuitive dislike of something like abortion, once that thing becomes ubiquitous because it is legal, it is likely that they will in time become desensitized and lose much of the heat of their dislike.

As we now know, however, the story of Roe v. Wade did not end on January 22, 1973. Although it once seemed that Roe was indeed “settled law,” in reality public opinion never did settle into the comfortable consensus that pro-abortion activists had hoped for. Instead, over the space of five decades, dedicated pro-life activists resisted the status quo bias with enormous energy. Through massive effort, they kept the spirit of justice alive, inflaming and feeding the nation’s conscience.

The result of which was that on June 24, a few weeks ago, the U.S. Supreme Court undid the legal travesty of Roe. Justice Alito’s majority opinion overruling Roe simply expressed what many legal scholars – both pro-life and pro-abortion – had always known: that Roe’s legal “reasoning” was little more than a fig leaf to cover up an instance of naked judicial activism; that any arguments discovering a “right” to abortion in the U.S. Constitution were so insubstantial that it was only a matter of time before a subsequent Supreme Court exposed the absurdity of the decision and sent the issue back to the legislature.

Judicial Activism and Same-Sex “Marriage”

In the wake of the Court’s decision in Dobbs v. Jackson Women’s Health Organization, progressives began panicking.

What once seemed to be an ironclad strategy – pursuing radical change through the courts – has now been revealed to be far from ironclad. The issue of abortion once thought “settled” is now very much unsettled. Legislatures across the country are involved in fiery debates about how to handle this most controversial of issues. In many states, abortion is now completely illegal.

The problem for progressives, is that this is not the only issue on which they have pursued this strategy. Next to abortion, perhaps the most egregious recent case in which the U.S. Supreme Court ran rough-shod over the basic principles of democracy and invented “rights” that are nowhere to be found in the U.S. Constitution, is the issue of same-sex “marriage.”

In 2015, the U.S. Supreme Court handed down Obergefell v. Hodges, the decision that legalized same-sex “marriage” nationally. In that decision the Court ruled that same-sex “marriage” is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

It might be hard to remember seven years after the fact, but when the Court handed down Obergefell, the country was intensely divided over the issue of same-sex “marriage.” Although some states had legalized the practice, numerous other states had passed resolutions, laws, and constitutional amendments defining marriage as the union of one man and one woman. This even included liberal California, which passed the so-called “Proposition 8,” banning same-sex “marriage,” in 2008 in a state-wide referendum!

Federally, the country had in place the Defense of Marriage Act (DOMA), a federal law that was passed in 1996 and signed into law by President Bill Clinton. What this federal law stated was that, regardless of individual state laws, for federal purposes same-sex “marriages” were not recognized.

In 2015, however, the U.S. Supreme Court once again unilaterally wiped out these various legislative efforts, ruling in Obergefell that same-sex “marriage” was a Constitutional right.

Congress Set to Codify Same-Sex “Marriage”?

In his concurring opinion to Dobbs v. Jackson Women’s Health Organization, Justice Clarence Thomas specifically singled out Obergefell as one of several cases based upon “due process” considerations that the Court should “reconsider,” in light of the decision to overturn Roe.

LGBT activists and legislators reacted to Dobbs and Justice Thomas’ remark about Obergefell with alarm. If Roe could go, then there was nothing stopping Obergefell and other similar cases, such as Griswold v. Connecticut (1965), which discovered a “right” to contraception, and Lawrence v. Texas (2003), which found a “right” to same-sex sexual acts) from also going the way of Roe.

In response, Democratic legislators introduced HR 8404, titled (misleadingly) the “Respect for Marriage Act.” Far from “respecting” marriage, this federal law would formally repeal the Defense of Marriage Act, which officially remains on the books, though it is unenforced due to Obergefell. It would also formally enshrine same-sex “marriage” in law.

In this case, however, it seems that the progressive tactic of using the courts to usher in radical social change may well pay off. Ever since the Supreme Court handed down Obergefell in 2015, public support for same-sex “marriage” has continued to climb. According to recent polls, public support may now be as high as 70%.

One consequence of which is that while Republican legislators were once overwhelmingly opposed to same-sex “marriage,” many are now willing to vote the other way. On July 19, the U.S. House voted to pass HR 8404. The vote was 267-157, with all Democrats voting to support the bill, as well as 47 Republicans (including 14 Catholic representatives).

In the Senate, things are less sure. Senate Majority Leader Chuck Schumer has indicated that he is working to find enough Republican votes to ensure that the bill also passes the Senate. So far, a number of Republican senators have expressed their support for the bill, meaning that it seems likely that Congress will soon enshrine same-sex “marriage” in law.

Call Your Senator

First, the ethical or moral evaluation of an issue is not based on polls or public opinion; instead, it is based on values and principles. The traditional understanding of marriage as between one man and one woman is based on natural law, having its own legitimate nature and identity. It is not the invention of the state nor of the Catholic Church.

The Church, along with virtually every religion and culture for millennia, recognizes the unique importance of marriage as the union of a man and a woman and supports this natural institution. (Catholic teaching is clear that only the union of a man and a woman constitutes marriage, and children have a right to be raised by their mother and father.) To deny this is to turn our backs on reality. Why? First, only a man and a woman can procreate, welcoming new life through their union (the conjugal act). There exists a profound natural complementarity between a man and a woman that provides everything necessary to welcome new life, and to raise children. And second, without it – i.e., marriage and family – no society will exist or flourish. It is the first cell of society from which the state receives its existence. Therefore, legislatively enshrining same-sex “marriage” in law would be a travesty, something very harmful to society and the common good.

The legalization of same-sex “marriage” is one of the most radical social experiments in the history of the world. As pro-marriage advocates long warned, its legalization has had all manner of deleterious consequences. It has now become normative, for instance, for homosexual couples to resort to bizarre and dehumanizing practices such as artificial insemination, in vitro fertilization (IVF), and surrogacy to bring children into the world (commodifying reproduction and treating children like property). Such is the case, for instance, with “conservative” commentator Dave Rubin, a homosexual man who has contracted with two surrogates to produce two children for him and his partner.

As the CDF wrote in their 2003 document on the issue of same-sex “marriage”:

Homosexual unions are totally lacking in the biological and anthropological elements of marriage and family which would be the basis, on the level of reason, for granting them legal recognition. Such unions are not able to contribute in a proper way to the procreation and survival of the human race. The possibility of using recently discovered methods of artificial reproduction, beyond involving a grave lack of respect for human dignity, does nothing to alter this inadequacy. (Considerations Regarding Proposals, no. 7)

Such practices deliberately rob children of their biological parents, commodify reproduction, and reduce women to mere “carriers” of children for others who have “purchased” those children. And yet, this is somehow now accepted as “normal.”

The legalization of same-sex “marriage” has also led to the shuttering of numerous faith-based adoption agencies, who were forced to choose between faithfulness to their faith’s teachings or helping children. It has eroded conscience rights everywhere, pressuring numerous businesses, schools, government officials, and others to get on board, or get out. “Pride” ideology is now found everywhere, including in our children’s entertainment and even in Catholic schools.

Furthermore, we have seen the far-reaching consequences of denying sexual complementarity, with the meteoric rise of transgender ideology. Pro-marriage advocates had long warned that denying the basic facts of biology, and unilaterally rewriting, redefining the nature of marriage, would only be the beginning. We are now reaping that whirlwind, as the LGBT movement sweeps through our social structures, demanding acquiescence to ever more radical ideas, including the idea that men can get pregnant, or that women can have male genitalia.

The Catholic Church teaches us that we must always respect homosexual individuals. Indeed, we have a duty to love our brothers and sisters with a Christ-like love, regardless of their sexual orientation or lifestyle.

However, same-sex “marriage” is an erroneous social experiment that was foisted upon us by an activist court. In the wake of this new effort to cement the status of same-sex “marriage” in law, we must resist. As the CDF wrote in 2003, Catholics have a “duty” for “clear and emphatic opposition” to laws that support same-sex “marriage.” Take the time to call or write your senator today, telling them to vote against HR 8404. And if your representative voted in support of HR 8404, be sure to contact them and to let them know your displeasure.

This article has been reprinted with permission and can be found at hli.org/2022/08/codifying-same-sex-marriage-into-law.