The Supreme Court Looks at Marriage and Gender

Defenders of traditional marriage may not believe it, but the Supreme Court’s apparent intention to decide two important same-sex marriage cases by midyear may be a stroke of good fortune for their side. This timing means the Supreme Court’s first head-on tangle with this issue almost certainly will come before President Obama gets an opportunity to nominate another justice for the court and thereby probably tip its balance in favor of gay marriage.

True, it would be foolish to predict what the court as presently constituted will do with the two cases now before it–one of them focused on the federal Defense of Marriage Act, the other on California’s Proposition 8 barring same-sex marriage in that state. As so often before, Justice Anthony Kennedy appears to be the swing vote, and how Justice Kennedy will swing on DOMA and Proposition 8 is anybody’s guess.

Still, it’s at least a possibility that the court will opt for a local option solution, leaving it to states to decide this question for themselves. Even Justice Ruth Bader Ginsburg, the senior liberal among the justices, has said she thinks the Supreme Court erred back in 1973 in abruptly imposing abortion on the entire nation instead of allowing a consensus to jell. Ginsburg and others might well say the same thing of gay marriage today.

The court will hear oral arguments in the two cases in just a few weeks. Its decision, as noted, is expected around the time its term ends in late June. Legal and constitutional considerations will naturally predominate in its deliberations. But important as these are, even larger issues are at stake.

Just how large was suggested by Pope Benedict XVI in his annual pre-Christmas address to the Roman Curia. The Pope obviously wasn’t thinking only about the U.S. (same-sex marriage is a red-hot issue in France just now), but what he said does apply here as much as in France or anywhere else. The central question in this dispute, he insisted, is whether the fundamental nature of gender, personhood, and marriage is forever fixed or forever in flux.

In making his argument, Benedict turned to remarks by the Chief Rabbi of France, Gilles Bernheim, an opponent of gay marriage. Rabbi Bernheim quoted an aphorism by Simone de Beauvoir (1908-1986), the French proto-feminist who was mistress of existentialist philosopher Jean-Paul Sartre: “One is not born a woman, one becomes so” (On ne nait pas femme, on le devient).

As a feminist battle cry opposing social conventions of her day, this makes sense of a sort. But as a statement of timeless fact, it’s the deconstructing of gender and gender-based relationships. Here, as Pope Benedict observed, is the foundation for “a new philosophy of sexuality.”

Its central premise is that sexual identity is not “a given element of nature” but a role people decide for themselves. Formerly, the role was imposed by society, but today, de Beauvoir would have it, individuals do it on their own, and the words of Genesis, “male and female he created them,” are irrelevant. “From now on,” Pope Benedict said, “there is only the abstract human being, who chooses for himself what his nature is to be.”

But if gender is something individuals choose for themselves, variations on the theme of marriage and family must include whatever preferences and whims suit particular individuals, with same-sex unions one. In an earlier, more clear-thinking time and place, this was what people called playing God. Does the Supreme Court really wish to join that game?


Russell Shaw is a freelance writer from Washington, D.C.