The Roe of Marriage: Traditionalists should defend their conception of the truth

Mr. Anderson is a co-author of What Is Marriage? Man and Woman: A Defense, and the William E. Simon Fellow at the Heritage Foundation.
Before Roe v. Wade in 1973, no one could have predicted that the Supreme Court would effectively create a national regime of abortion on demand throughout all nine months of pregnancy. The ruling was simply more sweeping and more extreme than anyone had expected.

But what if we had a crystal ball and a time machine and could travel back to 1972? What would we do if we could see Roe looming on the horizon? What would we do to prevent such a disastrous ruling? What would we do to minimize the harm that it would cause? And what plans would we put in place to make our response to Roe, if it were handed down anyway, more constructive?

This is the situation that supporters of marriage face today. Since the Supreme Court decision last June on the federal Defense of Marriage Act (DOMA), a string of lower courts have struck down state marriage laws, setting up a return of the issue to the high court. Public-opinion polling (especially of my peers in the Millennial generation), the forced resignation of Mozilla founder Brendan Eich, and the defeat of Arizona’s religious-liberty bill all make the situation seem dire.

And our progressive elites would like the millions of Americans who continue to believe that marriage is what societies have always believed it to be—a male–female union—to get with the program and accept the inevitable. Clearly, they tell us, we’re on the Wrong Side of History.

But we should avoid the temptation to prognosticate about the future in lieu of working to shape that future. We are citizens in a self-governing society, not pundits watching a spectator sport, not subjects of rulers. We are participants in one of the most significant debates any society has ever had.

And we must do whatever we can in service of the ultimate goal of restoring a culture of marriage. In the short run, the legal battle may be an uphill struggle. But in the long run, those who defend marriage as the union of a man and a woman will prove to have been prophetic. After all, the logic of marriage redefinition ultimately leads to the dissolution of marriage, to a social mess of adult love of manifold sizes and shapes. Defenders of the truth about marriage should redouble our efforts while there is still time to steer clear of that chaos.

Like pro-lifers, we should start by building alliances with those concerned about judicial activism and committed to sound federalism. In the run-up to Roe, the rallying cry should have been that the Constitution is silent on the question of abortion—and so the people remain sovereign. Now we must defend our constitutional authority as citizens to make marriage policy.

As Judge Paul Kelly of the Tenth Circuit recently explained, we do not need a single, 50-state answer from the courts: “If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head.”

Indeed, last summer, when the Supreme Court struck down DOMA, Chief Justice John Roberts emphasized in his dissent the limits of the majority’s opinion. He clarified that neither the holding nor its logic required redefining state marriage laws.

Justice Scalia predicted in his dissent that the Court would do whatever it thought it could get away with. We must therefore make clear that court-imposed same-sex marriage via a Roe-style decision will not settle the marriage debate any more than it has settled the abortion debate.

Whatever the Court does will cause less damage if we vigorously defend a classically liberal form of limited government and highlight the importance of religious liberty. Even if the Court were to redefine marriage, government should not require third parties to recognize a same-sex relationship as a marriage. After all, protecting religious liberty and the rights of conscience does not infringe on anyone’s sexual freedom.

Yet in a growing number of incidents, the redefinition of marriage and state policies on sexual orientation have burdened the freedoms of citizens who believe that marriage is the union of a man and a woman. Florists, photographers, family bakeries, and adoption agencies, among others, have faced penalties and lawsuits or been driven out of business for working in accordance with their convictions.

Ultimately, we cannot protect religious liberty without defending our substantive views. This is one key lesson from the pro-life movement. While liberal elites disagree with the pro-life position, many at least understand why a pro-life citizen holds the views she does, and why government thus shouldn’t coerce citizens into performing or subsidizing abortions. Will those who favor marriage redefinition view—and thus treat—their dissenting fellow citizens as, in the words of Justice Scalia, “enemies of the human race”? Or will they treat us as they do pro-lifers?

Just as the pro-life movement explained why its members care about the unborn, we must help our fellow citizens understand why we believe what we do about marriage. Even if they keep their convictions, they might well acknowledge the reasonableness of ours, and respect our right to govern our lives in accord with them.

But too many of our neighbors equate our beliefs with the hate-driven credo of Westboro Baptist’s Fred Phelps. If he’s the only voice they’ve heard on marriage, it’s hard to blame them.

We must work harder so that they hear our voices. In doing this, we must understand that many of our neighbors haven’t rejected the argument for marriage; they simply haven’t heard it. We must make that argument in new and creative ways.

Roughly two years ago, Sherif Girgis, Robert P. George, and I published the book What Is Marriage? In it we argue that at stake in our national debate are two competing views of what marriage is, and we make a philosophical argument that the conjugal view of marriage is correct.

That view has long informed the law—along with the art, philosophy, religion, and social practice—of our civilization. Marriage, so understood, is a comprehensive union. It unites spouses at all levels of their being: hearts, minds, and bodies, through the two-in-one-flesh union of a man and woman. As the act that unites spouses can also create new life, marriage is especially apt for procreation and family life. Uniting spouses in these all-encompassing ways, marriage calls for all-encompassing commitment: permanent and exclusive.

The state cares about marriage because of its ability to unite children with their mother and father. Marriage increases the odds that a man will be committed both to the children that he helps create and to the woman with whom he does so.

Comprehensive union capable of uniting children with their mom and dad is something only a man and a woman can form. So enacting same-sex marriage would not expand the institution of marriage, but redefine it. Finishing what policies like no-fault divorce began, it would finally replace the conjugal view with a revisionist view of marriage as fundamentally an emotional union. This would multiply the marriage revolution’s harms, making them harder than ever to reverse.

Most Americans haven’t thought about these dimensions of the debate, but my experience on scores of college campuses during the past year suggests there is hope. After almost every lecture, students approached me to say that they had never heard a rational case for marriage. Christians often said that they always knew marriage was between a man and a woman, but never knew how to defend it as a policy and legal matter.

Students who identified as liberal also admitted that this was the first time they had heard a rational case for marriage. They told me that they respected the argument—and, frequently, that they weren’t sure why it was wrong, even if they continued to insist that it was. While we may not be able to convert the most committed, we should seek to soften their resolve to eliminate us from polite society.

And yet naysayers claim that rational arguments never convince. There is something perverse in conservatives’ thinking that ideas have consequences but that good ideas can’t persuade. Good ideas can persuade, as witnessed by the successes of the pro-life movement—but only if we are willing to present them in a winsome manner. In the long run, the truth wins.

Truth needs a messenger. We must be bolder, better organized, and more strategic, and we must exercise greater foresight when engaging on this issue. We need conservative intellectual forces—think tanks, scholars, religious leaders, and politicians—to actively engage.

Creating such a network is what the pro-life movement has done for 40 years. The free-market movement did something similar: Citizens committed to economic freedom backed their beliefs with their billfolds and built a network of well-funded free-market think tanks and advocacy groups, university programs and scholarship competitions, media groups and marketing campaigns. While social conservatives have made great strides, we still have a ways to go.

No matter what, religious institutions will play a central role in shaping opinions on marriage. Those who choose to remain rather silent will shape opinion by default. But those who rise to the occasion can develop a compelling response to the sexual revolution.

The same was true of the pro-life movement. The Southern Baptists back then, we sometimes forget, were in favor of abortion rights and supported Roe. Today they are at the forefront of the cause for life. This should caution us not to write off those who today might be on the wrong side of the marriage debate.

Whatever happens, it is essential to take the long view and to be ready to bear witness to the truth, even if law and culture grow increasingly hostile. There are lessons to be learned from the pro-life movement here too.

Consider February 1973, just weeks after Roe. Public opinion ran against it, by a margin of two to one. With each passing day, another pro-life public figure—Ted Kennedy, Jesse Jackson, Al Gore, Bill Clinton—“evolved” to embrace abortion on demand. The media kept insisting that all the young people were for abortion rights. Elites ridiculed pro-lifers as being on the wrong side of history. The pro-lifers were aging; their children, increasingly against them.

But courageous pro-lifers put their hand to the plow, and today we reap the fruits—a majority of Americans are pro-life. Everything the pro-life movement did needs to happen again, but on this new frontier of marriage.


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