This was originally published June 29, 2015 in Crisis Magazine.
The long-awaited US Supreme Court ruling on the definition of marriage is as bad as we had feared. The Obergefell ruling will have harmful long-term effects on the family, the church, self-government and society. Each one of the four dissenters wrote his own opinion, to distance himself from a decision that will surely rank as disgraceful in the history of American jurisprudence.
I have only one point of disagreement with the general consensus: I do not think this needs to be a disaster for the Church. In fact, I believe this could be our finest hour.
Just how harmful is this ruling? How did we end up in this predicament? And is there any way forward to healing this culture in a lasting and Christ-like way?
How the Ruling is Harmful
The Court’s cavalier disrespect for the rights of children is its most striking feature. Redefining marriage redefines parenthood. Up until now, marriage has been the primary institutional structure that attaches mothers and fathers to each other, and to their children.
With Obergefell, this historic social purpose of marriage has come to an end. Nothing remains of marriage in Justice Kennedy’s telling but a government registry of friendships. Of course, no one truly needs a government registry of friendships. We will soon hear calls to abolish even this vestigial form of marriage.
So how will society attach children to adults, in the post-Obergefell world?
- Parenthood will no longer be considered a natural reality to be recorded by the government, but a creation of the State for the benefit of adults
- Some children will have a legally recognized right to know both of their parents. Other children will be blocked by the State from knowing both parents.
- Some children will have three or more people named as parents on their birth certificates.
- People related to the child neither through birth nor adoption will demand parental rights. Family courts will adjudicate these disputes on a case-by-case basis, using subjective criteria.
- Parenthood by contract among Intended Parents will become legally enforceable by the states
- Third Party Reproduction will continue unregulated and unabated. By the time the general public figures out that this is a form of human trafficking, baby-selling and a human rights abuse, it will be so entrenched that it will be difficult to root out.
We can extrapolate from 45 years of experience with divorce and unlimited remarriage to see that these “alternative family forms” will be harmful to children. As my colleague Jennifer Johnson memorably put it, “I had five parents and it sucked.”
I was especially disturbed to see that even the dissenters do not give children’s rights the attention they deserve. Justice Thomas came close to the mark by saying that the government does not bestow dignity on anyone: the government recognizes the dignity that is inherent in each and every human being. Justice Alito comes close by saying that marriage does have a legitimate procreative purpose, while criticizing the majority for saying “the fundamental purpose of marriage is to promote the well-being of those who choose to marry.” But even this is a far cry from a robust analysis of the rights and needs of children.
The Justices could have known about this issue. I told them about it in my amicus brief. So did Robert Oscar Lopez and his colleagues here and here. So did David Upham and the Thomas More Society.
