As the Supreme Court began this year’s term, it chose not to hear appeals of a number of lower court cases that had thrown out certain state laws upholding marriage as between one man and one woman.  The decision not to hear these cases was a cause of disappointment by some who hoped the Supreme Court would reverse these decisions.  With the beating defenders of traditional marriage have taken in the courts in recent years it is understandable for defenders of marriage to hope the Supreme Court may throw a lifeline and at least permit those states that want to preserve marriage to do so.  However, while the Supreme Court has yet to rule on whether a state may limit marriage under the law to one man and one woman, a reading of the Supreme Court’s 2013 decision striking down a portion of the Federal Defense of Marriage Act or “DOMA” reveals that the hoped for reprieve for marriage from the Supreme Court is most unlikely to be forthcoming.  At least from the current makeup of the Court.

It has been my experience that many who did not have the good fortune – or perhaps misfortune – to sit through a first year law school course on Constitutional Law are able to move through life with the comforting assumption that many of the most consequential decisions of the Supreme Court are based on something other than the subjective moral determinations of the justices.  I still recall sitting in my classroom at Catholic University as the scales fell from my eyes reading such landmark cases as Griswold v. Connecticut (right to contraception) or Roe v. Wade (right to abortion), seeing the Court pull new “rights” out of thin air, and, with an audacity that would have made a roman emperor blush, announce their own moral views of what was right or just as somehow inherent in the words of the Constitution and not subject to legitimate civic disagreement.

Part of DOMA declared that, under Federal law, marriage would only mean the legal union of one man and one woman.  In the 2013 case of United States v. Windsor, the Supreme Court, in declaring this portion of DOMA unconstitutional, held that those who voted for DOMA were motivated by a desire to harm couples in same-sex marriages.  As Justice Antonin Scalia stated, in his strongly worded dissent in the case, the Court has formally declared anyone opposed to same-sex marriage as an enemy of human decency.  Having already so held, is it realistic to believe the Supreme Court will find the various state legislators and voters who have enacted laws trying to uphold marriage to have done so with more admirable goals?

A thousand Supreme Courts cannot alter marriage as instituted by God no more than they can judicially modify the laws of gravity.  However, as citizens of the United States, it is important to look to the future with open eyes.  It is not just commentators and other shapers of public opinion who label those who uphold marriage as motivated by a desire to harm others.  The position of the Church on this issue has already been declared beyond the pale of reasoned disagreement by the highest American court.  To uphold traditional marriage is not to love marriage as given to us by God.  To uphold traditional marriage is not to love those trapped in self-destructive behavior.  By the words of the Supreme Court, to uphold traditional marriage is to want to harm those in a so-called same-sex-marriage and thus is not a legitimate basis for law.  Those who stand by the Church’s teaching have been told they have no place at the table of the legislative process on this issue.
In his dissent Justice Scalia advised to wait for the other shoe, meaning state laws upholding marriage also being knocked down by the Court.  Some, including Chief Justice John Roberts, have stated the Court has not gone as far as it may appear and give rise to the hope that state laws upholding marriage may have a chance at survival.  Regardless of which is right, we have to face at least an immediate future where remaining true to the Church’s teaching is to be declared by law to want to harm others.    The ramifications of this in so many areas of law remain to be seen but there should be no doubt that giving to God what is God’s will come at a price under the law for many.