Many worry that marriage is in its death throes these days, at least here in the prosperous West. Even Pope Francis commented at his recent conference on the family in Rome that “We now live in a culture of the temporary in which more and more people are simply giving up on marriage as a public commitment.”
Many today see liberation from the commitment to marriage as a positive social gain. Francis responded that this “revolution in manners and morals has often flown the flag of freedom but in fact has brought spiritual and material devastation to countless human beings, especially the poorest and most vulnerable.”
Isabel Sawhill’s new book Unbound: Drifting into Sex and Parenthood without Marriage reports the numbers for the United States. They suggest that the word “revolution” is not an exaggeration.
For some time now, three of the most powerful forces in society—technological science and the moral values of equality and freedom—have been applied to the redefinition and reworking of a fundamental human and social institution: marriage and the family. Same-sex marriage is the most recent wave in this transformative endeavor.
Marriage and parenting may be disappearing in large parts of sophisticated Europe and Japan, but not so much among our high achievers. It’s true that our elitists don’t think that marriage is required for sexual enjoyment or even to validate romantic love. They’re accepting of same-sex marriage to avoid being judgmental or hateful. Marriage equality is part of “multicultural diversity.” And so it’s an issue about which it’s no longer possible for decent people to have diverse opinions.
Our meritocracy based on productivity embraces diverse lifestyles, and nobody believes that women were born to be anything but free and equal individuals just like men. And so parenthood and marriage have to be freely chosen, allegedly part of that mysterious power that one has to define one’s personal identity. Except when it comes to the responsible imperatives of personal productivity, the talk of our successful sophisticates often seems stuck in the Sixties. But not so much their behavior.
Tomorrow the Supreme Court will issue its opinions in the marriage cases. Today, in a less prominent case, the Court treated the issue of parental, and more particularly, paternal rights. As I've discussed here, there is a constitutional presumption in favor of natural-parental trusteeship, a presumption that is in tension with the contradictory presumption that arises where the state recognizes same-sex relationships as marriage. Today's case, Adoptive Couple v. Baby Girl, involved a statutory, and not a constitutional, issue. Still, the dissent , authored by Justice Sotomayor, took pains to mention the constitutional presumption that I've emphasized. There is, she…
In my first post on the unconstitutionality of the new marriage, I argued that the Due Process Clause, as originally understood, limited governmental power over children’s locomotion in at least one respect: the government must respect a presumption in favor of natural-parental trusteeship. Children have a right to their mother and their father. And by providing this presumption, the Due Process Clause protects this right.
I mentioned that in a subsequent post, I would elaborate the way in which the new marriage unconstitutionally disregards this presumption. While preparing this second post, Greg Weiner did me the honor of writing a thoughtful response to the first one. In particular, Weiner (1) disputed the claim that the Due Process Clause establishes any such presumption, (2) questioned the way in which this presumption might affect gay couples, and (3) cautioned reading one’s policy proclivities into the Constitution. I believe this post answers the second and third of his objections. In a subsequent post, I hope to elaborate the originalist evidence indicating the incorporation of this presumption into “due process of law.”
Let me begin by emphasizing my agreement with Professor Weiner that one should not read into the Constitution something that is not there—even if that missing thing is one’s strongly-held beliefs. Rather, I should say, it is my strongly-held belief that the rule of law is good, that rule by a written constitution is particularly good, and that it is good to tell the truth about such a constitution—especially a constitution as noble as ours.
In the marriage cases pending before the Supreme Court, the parties and amici defending the validity of California’s Proposition 8 and the Federal Defense of Marriage Act have argued that the Constitution permits the state and federal governments to reserve the status and privileges of marriage to “marriage,” as traditionally defined. To my knowledge, no one in the cases has argued that the Constitution might prohibit the state and federal governments from abandoning this traditional definition.
There is good reason, however, to conclude that in one critical respect, the Constitution prohibits the redefinition of marriage. On this Father’s Day, I will begin by sketching how the Due Process Clause, as strictly construed and originally understood, establishes a presumption in favor of the natural father and mother’s trusteeship over the child’s liberty. In subsequent posts, I will explain how the old marriage has complemented this presumption, and how the new marriage unlawfully undermines it.