Hadley Arkes

After Obergefell: Facing the Main Question

My long-time brother in “columny,” the redoubtable George Marlin, has recently expressed his dubiety about the strategy of seeking a constitutional amendment to restore the understanding of marriage as the union of a man and woman. He would put the accent on measures in the separate states to shore up religious freedom. I too hope that something can be done to protect religious freedom, but for reasons I’ll take up at another time, that is turning out to be a tougher project in the states because the protections of the Religious Freedom Restoration Act (RFRA) are not available there. The invoking of “sincere beliefs” is not enough to shift the burden of justification to the law, as in the case of requiring pharmacists to deliver abortifacients upon request. (Vide the decision, just two weeks ago, in Stormans v. Wiesman in the 10th federal circuit.)

This “defensive” strategy of resistance has run into problems recently also on Capitol Hill, and it may be a mistake to regard it as the most practicable course available right now. At the same time, we may be diverting ourselves from the things that may be done more directly to challenge the decision of the Court on marriage in Obergefell. Of course, nothing would secure the institution of marriage as much as a constitutional amendment, which would put that institution beyond the wizardry of judges.

But I would share George Marlin’s reservations about putting the main effort right now on a constitutional amendment – and I’d state the matter even more sharply. The presidential candidate who will mention nothing more than a constitutional amendment on marriage is telling us that he is not serious; that there is nothing he is prepared to do right now. He knows that it would take a couple of years to bring about that amendment, and in the meantime, we’ll all just be getting used to same-sex marriage and the distortions that it is already producing in our law.

George Marlin rightly draws on the experience of the pro-life movement, but he seems to have forgotten that there was a serious attempt to counter the Supreme Court with ordinary legislation, well short of a constitutional amendment. And that was the Human Life Bill, an attempt to have Congress invoke its authority under the Fourteenth Amendment to protect the lives of those human persons still in their mothers’ wombs.

Professor, and later federal judge, John Noonan wrote a compelling essay in support of that bill. In making the case, he noted a string of notable instances in which the Congress challenged a decision of the Court on constitutionality – and the Court gave way.

Next up?

To take just one example, the Court had pronounced it quite legitimate for a State to have a requirement of literacy for those who would vote. But then Senator Robert Kennedy attached a rider to a bill, effectively barring those kinds of restrictions on voting for Puerto Ricans in New York. Justice William Brennan, reviewing the case, noted that the Congressional Act was at odds with the holdings of the Court, and yet, he held, the Congress need not give way. It was the Court that would give way.

But the most dramatic example, of course, came with the famous decision on Dred Scott (1857). Lincoln and his Congress moved, through an act of ordinary legislation, to bar slavery from the Territories of the United States – an Act that struck at the decisive holding in Dred Scott. In this way, the Court could be challenged to take a sober second look at what it had done, and a constitutional amendment could come later.

The initiative for the Human Life Act failed through a series of missteps. But right now there are several things that could be done in ordinary legislation to put limits on the holding in Obergefell and bring out the bizarre implications in that decision. For one thing, the Congress could insist that “marriage,” as redefined by the Court, would not include polygamy or polyamory. It could be stipulated that federal law would recognize no marriage beyond two people. Nor would a State be obliged to respect a “marriage” containing more than two people, coming in from another State.

For the Democrats right now, it would be a strain to sign on to that kind of bill, for many people on the Left are already being drawn to an acceptance of polygamy. Why should they be spared then the need to explain why they would bar people from “marrying the ones they love?”

Beyond the precise content of the bill, there is the critical point to be made that the political branches may indeed act to modify and counter the decisions of the Supreme Court. And that offers the occasion to test the seriousness of anyone who would offer himself for the presidency of the United States. Who among the Republican candidates would be moved to follow Rick Santorum in saying of the decision in Obergefell that “this will not stand”?

But on one thing we can be utterly clear: none of the other measures to deal with the fallout on marriage – the threat to religious freedom, the move to a constitutional amendment – none of this will be done while we’re unwilling to strike at the heart of the matter itself. And if that challenge is not proclaimed now, it will never be done later.

About Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.

  • Not entirely facetiously, I wonder whether there isn’t something to be said for abandoning legal restrictions on marriage entirely. Polygamy (in his dissent against the Obergefell decision John Roberts indicated that the legal principle that the affirming judges used to create the right to homosexual marriage equally creates a right to polygamy)? Fine. Polyamory? Fine. Every member of the River City Frog Watchers Club married to every other member (regardless of gender) of the River City Frog Watchers Club? Fine. Since the legalization of same sex “marriage” has effectively created a new institution which is NOT marriage (as understood according to previous definitions), and at the same time effectively dissolved the institution constituted by the previous understanding (albeit generally badly understood by 21st century Americans) of what marriage really is, why not let the definition be watered down until everyone is married to everyone else, and the entire concept is completely lost? Maybe then, people (and legislators and even federal judges) would recognize that something in fact had been lost, and they would start to try to rationally walk it back to establishing a reasonable institution – which might just as well be true marriage.

    Here’s another vector to pursue…the possibility that obergefell was keystone cops versus a kangaroo court, and the best defense of marriage was never even tried. I am speaking of the fact that homosex marriage represents the most fundamental form of sex discrimination and therefore violates federal law.

  • TCT would do a great favor for its readers if it published the list of major corpporations which support sodomite marriage. Coca Cola, Shell, General Mills, Starbucks come immediately to mind. As Chief Justice Roberts pointed out, Obergefell had nothjing to do with the Constitution. BTW, should not Justrices Kagan and Ginsburg recused themseles from the Court on Obergefell as they had both presided over same sex marriages before the decision?

    I read and take to heart and consider all the various articles in TCT and elsewhere about the possible “approaches” to somehow turning this trend and court decisions (along with other issues of similar nature) around in our society, and I hope they are successful. But the half-empty part of me fears that the downward spiral may only become steeper and steeper.

    And if that is the case, I guess I would like to see more articles and discussion about how Christians — and particularly Catholics — should act under those potential conditions, since Catholics are primarily the ones who reach back to contraception and easy divorce itself as a primary generator of the follow-on issues and so would presumably be most immersed in the problems encountered.

    To my pessimistic side, the “how do we effect a legal change” approach is, or soon may be, not unlike early Christians persecuted and martyred in Rome asking “how do we formulate a legislative response to the emperor’s declarations that will stop this horror?” I’m not saying that approach shouldn’t be taken and I pray daily for its success. But if/when the suits and penalties and job denials and sentences and, gulp, persecutions begin (well, expand, since they have already begun), it would be nice for those of us without law degrees or the knowledge and ability to file briefs with the courts, to have concrete well-thought-out articles and advice for ways of “living” that can help if those persecution conditions arrive.

    And perhaps more importantly, the sorts of things we should be practicing right now in anticipation and preparation for that potential arrival. Prayer and fasting to be sure, but perhaps there are other concrete actions that can strengthen our resolve to bear through these particular hard-times-to-come?

    What would be the authority in the federal Constitution for Congress to pass legislation restricting marriage to two people?


    I assume that you won’t draw an artificial line and will also devise a broader strategy to outlaw divorce and second (or more) civil marriage. The Church seems to have ceded this affront to marriage and natural law to Henry VIII and made it a private, Church-only matter. It is also a matter of mortal sin that will send souls to hell, but we seem to be curiously accommodative to its existence.

    The heart of the matter is the child that has been procured to be the toy or one could say chattel, of the homosex couple. Your incrementalist suggestions to wall off polygamy will only entrench the homosex dyad. Heather may have two mommies, but she has no daddies. The only solution when a child, or a slave, is at stake is the single minded pursuit of an amendment to the constitution.

    Courts in Europe have long had to wrestle with the question of polygamy.

    When citizens of one country, say Algeria or Pakistan, enter into a marriage there that is actually or, more often potentially, polygamous and then come to settle in, say, France or the UK, where marriage is strictly monogamous, the courts have had to ask themselves whether the relationship between a man and the ladies living under his protection in a polygamous union is sufficiently analogous to the relationship of husband and wife, as described in the Civil Code, to make it just to apply the same rules to them. Otherwise, there is a real danger of the courts creating obligations, rather than enforcing them.

    The same question can arise in relation to succession to moveable and immoveable property, the owners of which are citizens of and domiciled in a foreign country.

    No jurist has suggested there is an easy answer to this and legislatures are reluctant to discuss it..

    Perhaps, the great Scottish judge, Lord Meadowbank, was right when he said, “The whole order of society would be disjointed, were the positive institutions of foreign nations concerning domestic relations and the capacities of persons regarding them, permitted to operate universally and form privileged casts living each under separate laws, like the barbarous nations during many centuries after settlement in the Roman Empire.” The same consideration would apply, as between states.

About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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  1. Thank you Lord , I will do as you instructed ,” Increase and multiply and fill the earth “, if coupling is your method , how can I COMPLAIN . This joy you have given me exhausts me ; I can not explain ; I can only love you all the more .

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