Marriage: Doomed in the U.S.A.?

Two cases regarding same-sex marriage will be adjudicated by the United States Supreme Court early next year.

The Defense of Marriage Act (DOMA) (1996), is a federal law which only recognizes marriage as being between a man and a woman. It, therefore, denies benefits to same-sex couples. The case tests the power of Federal Government to reject a marriage authorized by the states, which have historically controlled family law.

Financial considerations regarding an estate tax levied on a lesbian is ostensibly the issue being brought before the Court.  The plaintiff contends that had her union with her longtime partner been recognized as a marriage, by the Federal Government, she would have paid no tax. As it were, this perceived injustice cost her $363,000.

The case will be argued on the grounds of “equal protection” guaranteed by the Fourteenth Amendment.

The real issue, however, is whether or not the Federal Government can refuse to recognize same-sex marriage?

The answer is yes! But, the case will turn on the philosophical positions of the Court’s Justices regarding humanity and the role government should play in structuring society.

Four Justices, Stephen Bryer, Ruth Bader Ginsberg, Elaina Kagan and Sonya Sotomayor will rule DOMA un-Constitutional based on past precedent regarding equal rights and non-discrimination laws.

Justice Anthony Kennedy is a Libertarian.  He will appeal to the principle of personal autonomy which he used inPlanned Parenthood v. Casey (1992), where he wrote, “At the heart of liberty is the right to define one’s own concept of existence.”

Chief Justice John Roberts, who created a fictional tax in order to Constitutionalize ObamaCare will go along with the five aforementioned Justices in order to preserve the integrity of the Court. This, of course, will be at the expense of the separation of powers.

Three Justices, Samuel Alito, Antonin Scalia and Clarence Thomas will dissent.  They will hold that the government has a right to protect marriage as being between persons of the opposite gender because it is important for the common good.

This being so, I predict a 6-3 decision favoring the plaintiff.

The Court will not redefine marriage.  That will come only later and incrementally as the culture becomes more comfortable with homosexual marriages.  The Court will simply contend that unequal treatment by the government of persons “legally married”, in states where same-sex marriage is recognized, is un-Constitutional.

At its root, this projected ruling will be guided by an “egalitarian ethos” which has gained hegemony in the national psyche.  It holds that sameness is the key to fairness.  Any distinction which favors persons or institutions over any other is deemed un-democratic.  The current government efforts at wealth redistribution and the growth of entitlements are indicative of this insidious leveling trend.

Protecting a person’s human and civil rights before a court of law requires blind justice.  These rights are those inherent to human beings because of the very nature of their personhood.  This means, for example, that a person’s race, which is not substantive to their basic humanity, cannot serve as grounds for discriminatory practices.  On the other-hand, certain behaviors of persons can be and have always have been promoted and/or proscribed by a society for the common good.

Marriage, between a man and a woman is a case in point.  It has always enjoyed a special status in Western Society because of its contribution of children and the moral and financial good the family provides for the nation and its future. Hence, the traditional tax breaks accorded to marriage and the nuclear family are recognition of the institutions value.  Accordingly, St. Thomas Aquinas writes, “the end of law is the common good; therefore law should be framed, not for any private benefit, but for the common good of all the citizens.”

The other case relating to same-sex marriage that will be heard by the Court comes via California’s Proposition 8(2008), whereby voters approved to amend the State Constitution to limit marriage to the union of man and woman.  The Ninth U.S. Circuit Court of Appeals, found Proposition 8 violated the California Constitution’s “equal protection provision” which allows no distinction of privileges between same-sex and opposite-sex couples.

I contend, that once again, by a 6-3 vote the Justices will declare Proposition 8 un-Constitutional.

All relationships do not deserve equal recognition or protection. Same-sex marriage cannot produce children.  A same-sex couple provides little or no contribution to the state other than perhaps their personal accumulation of wealth. Therefore, their income should be taxed by the state without any privileged deductions.

Nations and states have always declared certain relationships as contrary to or not contributory to the common good. When the common good is invoked by a society it is not merely a materialistic consideration.  It is, however, a struggle with virtue to achieve a good for all other members of society.  For example, prostitution is against the law in most states, as is having a sexual relationship with a minor in all states (with certain age differences).  So, what we do (our actions) can be limited or forbidden for the good of all.  Economic considerations, like the increase of tax revenues that may be gained through legalized prostitution, are abhorrent to most because of the moral degradation it inflicts on the human person and on society as a whole.

The Supreme Court’s decisions will be very narrowly tailored. The majority will be governed by a philosophy which advances libertarian ideals and radical egalitarianism. The three dissenting Justices will appeal to the moral sense which should guide legislation.  Obviously, this sentiment is what motivated the passage of Proposition 8, by the California electorate.

In the end, the Court will sometime in June, further diminish the institution of marriage and the dignity of man and woman as we were created by God. In doing so, the Court will further erode the bedrock of society – the family.

Fr. Michael P. Orsi


Chaplain and Research Fellow at Ave Maria Law. Father Michael P. Orsi was ordained for the Diocese of Camden in 1976 and has a broad background in teaching and educational administration. Fr. Orsi has authored or co-authored four books and over 300 articles in more than 45 journals, magazines and newspapers. He has served as Assistant Chancellor, Assistant Vicar for Pastoral Services, Director of Family Life Bureau, and Coordinator of Pope John Paul II’s visit to New Jersey for the Diocese of Camden. He has also served as a member of The Institute for Genomic Research at the University of Pennsylvania and as a member of New Jersey’s Advisory Council on AIDS. Fr. Orsi holds a Doctorate in Education from Fordham University, two Master degrees in Theology from Saint Charles Seminary, and a Bachelor of Arts from Cathedral College. He is presently serving as Chaplain and Research Fellow in Law and Religion at Ave Maria School of Law, Naples, Florida. He is a member of the Fellowship of Catholic Scholars. In 2005 Fr. Orsi was appointed as a Senior Research Associate to the Linacre Center for Bioethics, London, England. Fr. Orsi co-hosts a weekly radio program The Advocate which discusses law and culture on WDEO-AM 990, WMAX-AM 1440 in metro Detroit and WDEO-FM 98.5 in southwest Florida [also linked at].

Subscribe to CE
(It's free)

Go to Catholic Exchange homepage

  • JMC

    In the New Testament, there is a warning that a time will come when marriage will be forbidden, as will the eating of certain foods. We’re already seeing the food part in some places (you can’t get a large soda in New York; foods deemed “unhealthy” have been banned altogether; some schools around the country routinely confiscate certain foods from kids’ lunchboxes). In light of this prophecy, I suspect this whole gay “marriage” controversy is going to get to the point that the government is simply going to refuse to recognize ANY marriage, and marriage certificates will no longer be issued. They may even try to stop churches from performing the ceremony, seeing as how they’re trying to force them to “marry” gays now.

  • Louis McHale

    I believe that as a youth it is hard to stand this. I am being brought up in a good catholic family, and this topic I easy for me too understand why it is wrong. But for others it might not be so easy. I think as a church we must reach out to all youths to help them understand this idea. They are not being informed about it in the right way. All they hear is not to make fun of the “gays”. And how they are made fun of society. And anything the media wants them to hear. The Catholic church must reach out to all young people to teach them why it’s wrong on understandable level. That is how to stop, get through too the youth.

  • Bryan

    What a crock. Gay people exist, and their orientation is not a choice. Thankfully, the United States is a secular country, not a Catholic one. I’m confident the SCOTUS will rule on the right side of history on this issue. In ten years, no one will care.

  • Peter Nyikos

    The real crock includes your notion that your slogan, “the USA is a secular country” somehow makes sense out of the nonsense, “in ten years, no one will care.” Also, your “right side of history” crock is reminiscent of the cold war slogan that “Communism is the wave of the future” — by the losing side.

  • Peter Nyikos

    While the first 6-3 vote seems plausible, the second does not. Nothing short of a second Roe v. Wade can overturn the California referendum. An amendment to a state constitution, duly voted on by referendum, cannot be called unconstitutional by a Supreme Court that does not make same-sex marriage a constitutional right, enforced upon all 50 states and all US territories.

  • Midwester

    Bryan, the right side of history is to uphold the definition of marriage as between a man and a woman. What we are attempting in the West is a radical redefinition of marriage that has never in the history of the world been attempted. It will have unexpected consequences. In even the pagan societies of antiquity, such as Greece, homosexuality and lesbianism were seen as aberrations, never as a substitute for marriage, nor were those relationships on the same level as marriage. If I were you, I would stop shilling for the diabolical and start worrying about the condition of your soul, since you are seriously confused morally and in danger of losing your salvation.

  • Bryan

    In danger of losing my salvation? Wow. I must have missed the passages in the Bible that said Midwester was seated at the right hand of God.

  • Silentobserver

    10 yeras is a long time, Lets see how tolerant God is on this issue. HE was not very tolerant the last time an State authorised this un-natural disasterous act.