The prospect for continuing to define marriage as between one man and one woman in this country may appear to be dim as one state after another finds its laws rejected by federal judges.
In less than a year, state bans on same-sex marriage have been struck down about a dozen times. Pennsylvania and Oregon were the last two states to do so.
At first glance, it would appear that the proponents of traditional marriage — including the Catholic Church — have failed to influence public opinion.
Decisions favoring same-sex marriage are received by a society that greatly relies on "it’s not fair" to make its judgments. Proponents of traditional marriage, between one man and one woman, have a more complex concept to sell.
The philosophers and the lawyers are passing in the night on different levels. The courts are treating the meaning of marriage as a matter of due process and equal protection.
"Marriage is rooted in nature: two people of the same sex are no more being denied the ‘right’ to marry than a man is ‘denied’ the ‘right’ to gestate and nurse a child," the United States Conference of Catholic Bishops says on its website.
"Authentic human rights flow from the nature and the dignity of the human person, a nature that includes sexual difference," the bishops say.
Their statement continues: "The ‘right to marry’ is not the right to enter a relationship that is not a marriage, and then force others by law to treat that relationship as if it were a marriage."
Last year, the Supreme Court of the United States declared unconstitutional the federal Defense of Marriage Act, defining marriage between one man and one woman, for violating the equal protection clause. The case involved federal benefits, and the court did not rule that all states must allow such marriages to take place.
However, same-sex marriage proponents were encouraged by the decision. In Pennsylvania, U.S District Judge John E. Jones cited due process and equal protection in striking down that state’s law. His decision came with his opinion as well. "In future generations the label same-sex marriage will be abandoned to be replaced simply by marriage," he wrote. "We are a better people than these laws represent, and it is time to discard them into the ash heap of history."
No, it is precisely because of laws recognizing marriage that we are a better people. In Texas, where the ban also was ruled unconstitutional, U.S. District Judge Orlando Garcia said in explaining his ruling that "without a rational relationship to a legitimate government purpose, it (the ban) denies same-sex couples the benefits, dignity and value of celebrating marriage."
The USCCB says, "The government has the responsibility of promoting the common good and the best interests of all people, especially the most vulnerable, and upholding authentic marriage does precisely that."
The Constitution originally didn’t address many things because they were self-evident. If there is ambiguity that makes natural law seem unconstitutional, change the Constitution. It has been amended for purposes much less grave.
Change the paradigm to recognize the conflict but insist that it be resolved in favor of natural law. Natural law is immutable, man-made law is not.
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Kent, now retired, was editor of archdiocesan newspapers in Omaha and Seattle.