By DONALD DeMARCO
Certain thinkers of the past, whose minds were more in love with theory than with practice, believed that birds could fly faster in a resistance-less medium, that is, in a vacuum. Without the air to push their wings against, as we now know, birds would not be able to fly at all. They would also need oxygen to take in so that they could remain alive.
The point here is that, although the temptation exists to increase freedom beyond its natural boundaries, freedom is conditioned. In a nutshell, there is no liberty without truth, just as there is no justice without truth.
And so, too, marriage is conditioned. People do have a right to marry, but it is not absolute. The right to marry is conditioned by several factors including: a) obtaining the consent of the other, b) that both parties are unmarried, c) that the other is not a blood relative, and d) that the other is a member of the opposite sex.
Would marriage “fly” better if any or all of these conditions could be removed? Or can we say that these conditions do not restrict marriage, but define it, give it its nature, and distinguish it from other types of relationships?
Justice Anthony Kennedy, in supporting same-sex marriage in the Obergefell v. Hodges ruling, argued that “the right to marry is a fundamental right inherent in the liberty of the person…couples of the same-sex may not be deprived of that right and that liberty.” Here, Justice Kennedy is treating marriage as if it were an unconditional right, which it clearly is not.
This is the same justice who stated in the 1992 Planned Parenthood v. Casey decision: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” The fact that no American government has ever opposed a person’s “right” to have his own concept of the “mystery of human life,” raises the question of the judicial significance of Kennedy’s words. In his book, Slouching Towards Gomorrah, Robert H. Bork contends that Kennedy’s words “were intended, through grandiose prose, to appeal to a free-floating spirit of radical autonomy.”
Kennedy, along with four other judges believed that the Constitution allowed them to excise the male/female condition from marriage and thereby give it greater life. But if the majority could do this, could it not also strip marriage of its incest and pedophilia taboos, and of its opposition to bigamy and polygamy, and even of its freedom of consent requirement? It is not possible, as the four dissenting justices agreed, to find in the Constitution a proviso that allows the pruning of marriage.
Chief Justice John Roberts stated that the majority simply acquiesced to a preference: “The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that ‘it would disparage their choice and diminish their personhood to deny them this right’.”
Lino Graglia, a professor of law at the University of Texas, puts America’s attitude concerning the Constitution over the past 40 years or so into perspective when he states the following:
“[T]he thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite on the far left of the American political spectrum.”
The migration from a judicial role to a political one has made it evident that judges in general, and several members of the Supreme Court in particular, do not operate out of a realistic grasp of the nature of things. Liberty (or freedom) for us human beings is always conditioned. We are not free-floating, autonomous creatures. Nor is marriage an institution with no definable boundaries.
In his 1993 encyclical Veritatis Splendor, St. John Paul II explained in great detail how liberty cannot be dissociated from law. It was a caveat, to no one’s surprise, that was unheeded by the majority.
John Paul noted that “some present-day cultural tendencies have given rise to several currents of thought in ethics which center upon an alleged conflict between freedom and law. These doctrines would grant to individuals or social groups the right to determine what is good or evil. Human freedom would thus be able to ‘create values’ and would enjoy a primacy over truth, to the point that truth itself would be considered a creation of freedom.”
The court set aside the reality of marriage, its nature and truth, and in a mood of freedom, conferred upon it new meaning. The court, therefore, claimed to achieve a metaphysical impossibility — using judicial fiat to transform an objective reality. But marriage cannot fly when its wings are clipped. That is to say, marriage ceases to be marriage when part of its essence is removed. Neither individual persons nor the United States Supreme Court has the power to create new verities to replace old ones.
Justice Clarence Thomas, in dissent, is right when he points out that “liberty,” in the American tradition, “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.”
We are less free when the government imposes its will on us. It is worth noting that the 1973 Roe v. Wade decision denied the unborn their natural right to life and made their continued existence conditional on the mother’s choice, whereas the court denied the conditional right to marry and treated it as if it were a natural right.
We have good evidence to believe the words of Robert Bork when he advises us: “There is no particular reason to think that people with Ph.D.s are more well-intentioned than people who dropped out of high school.”
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(Dr. Donald DeMarco is a senior fellow of Human Life International. He is professor emeritus at St. Jerome’s University in Waterloo, Ontario, an adjunct professor at Holy Apostles College in Cromwell, Conn., and a regular columnist for St. Austin Review.
(His latest works, How to Remain Sane in a World that is Going Mad; Poetry that Enters the Mind and Warms the Heart; and How to Flourish in a Fallen World are available through Amazon.com. Some of his recent writings may be found at Human Life International’s Truth and Charity Forum. He is the 2015 Catholic Civil Rights League recipient of the prestigious Exner Award.)
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