Judicial Arrogance Prevails

By Russell Shaw
Herald Columnist
(From the issue of 7/17/03)

The theme of judicial arrogance has been invoked so often in reference to the Supreme Court that it seems like belaboring the obvious to invoke it again in reference to the court's decision approving sodomy. Yet what else but arrogance can you call it when six unelected justices presume to tell us that moral intuitions central to Western culture and law for centuries no longer count?

Of course, citing "moral intuitions" regarding sodomy invites the rejoinder that, along with intuiting the wrongness of homosexual sex, earlier ages intuited the rightness of, say, slavery. Evidently more needs to be said.

Writing in 1933, not long after the Anglicans' Lambeth Conference had approved contraception, the great historian Christopher Dawson pointed out that the willed separation of sex from procreation weakened marriage by encouraging people who wanted sex without procreation to look for it outside the married state.

Although it took several decades for the consequences to sink in, this insight into human nature helped explain the sexual revolution of the 1960s. So did the complementary principle that individuals have a virtually unlimited right to do whatever they want in matters of sex.

Cohabitation and premarital sex have soared ever since. Meanwhile, predictably, the marriage rate has declined, and we have hastened merrily down the path of social decay in the name of personal liberty. If Supreme Court justices have not noticed what's been happening, they need to open the windows of their ivory tower and look.

Dawson, nevertheless, failed to anticipate that a second front would be opened in the assault on marriage by extending its legal form to homosexual unions and calling these "marriages."

In this scheme, marriage is reduced to the status of a civil contract — open to same-sex couples as much as to anyone else — whose purposes are mutual comfort and economic advantage. Sex and procreation are still sundered, of course, while sex rendered procreationless by gender takes its place in a new version of marriage a la mode.

Catholics will recall that Pope Paul VI saw what was coming in his encyclical Humanae Vitae, which repeated the Church's condemnation of contraception. As we prepare to mark the 35th anniversary of this much-maligned document, issued in July 1968, it becomes increasingly clear how tragically accurate it was in pointing to the implications of separating sex from procreation.

The scope of the sodomy decision is indicated by a passage in Justice Anthony Kennedy's majority opinion that speaks of the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."

Citing this passage, Justice Antonin Scalia remarked in dissent: "Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

If the people of the United States don't want same-sex marriage imposed on them by their arrogant courts—as Canadian courts and the Canadian government have just imposed it upon our unhappy neighbors to the north — it will require amending the Constitution. The obvious, yet now controverted point, must be made that marriage is between a woman and a man, not a woman and a woman or a man and a man.

President Bush says he wants lawyers to tell him whether an amendment is needed. But there are no serious grounds for delay. However much some of those in the White House might prefer to duck this issue, the Supreme Court has made it clear that ducking is not an option any more.

Shaw is a freelance writer from Washington, D.C.

Copyright ©2003 Arlington Catholic Herald.  All rights reserved.