Respect Marriage Now
The “Respect for Marriage Act” is an attempt to codify in law what reason deems impossible.
The Senate is taking up the Respect for Marriage Act this week. Those who were too antsy to vote for the legislation before the midterms can now comfortably respect the institution of marriage.
The bill reads, in part:
Diverse beliefs about the role of gender in marriage are held by reasonable and sincere people based on decent and honorable religious or philosophical premises.
That is simply false: prima facie, the honorable philosophers would say.
It’s not just false in the way that a statement such as "the 2020 election was the most secure in history” is false; that claim is related to observable facts, contingent on electoral patterns, strategy, media coverage, and the rest.
The claim made by the bipartisan group of senators pushing the bill is false in that it never could have been, is not, and never will be true. “Reasonable” people, for example, don't hold “diverse beliefs about the role of gender in marriage.” Reasonable people use their reason, which means they try to mediate their thoughts, words, and actions by the limits of nature and reality. When reasonable people see a spade, they call it a spade.
Diverse beliefs about the role of gender in marriage, we can presume, includes the possibility that a pair of men, women, and everything in between could determine that their union in marriage would be fitting. But nature never agrees. State-sanctioned homosexual practice in this generation won’t contribute to an evolutionary mutation that would make nature more open to the idea. The ancient Romans tried to alter nature by force, and all we got were three-named poets with a predilection for pedophilia.
The Hallmark vision of marriage articulated in the legislation, a “union [that] embodies the highest ideals of love, fidelity, devotion, sacrifice, and family,” made me think back to 2013, when Anthony Kennedy, an Irish-Catholic, wrote the Court’s majority opinion in United States v. Windsor. Kennedy joined his liberal colleagues in a 5-4 decision that contributed to what families around the kitchen table call “the gay agenda.”
Kennedy wrote in his opinion that “by history and tradition the definition and regulation of marriage, as will be discussed in more detail, has been treated as being within the authority and realm of the separate States.” He goes on to concede that the federal government can make special provisions regarding issues tangentially related to marriage. But, he says again and again, the authority to define it belongs to the states.
Kennedy is so insistent on repeating the constitutional authority of the states to define marriage that Justice Scalia devoted a paragraph of his dissent to calling Kennedy's zeal into question. Scalia is worth quoting at length:
What to make of this? The opinion never explains. My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.
The “state-law shoe” was indeed dropped, just two terms later in Obergefell. Scalia didn’t even think the Court had the power to overturn the Defense of Marriage Act in Windsor, which he called “democratically adopted legislation.” If Scalia had to use democracy as a justification for the federal codification of real marriage, so be it: twenty bucks is twenty bucks.
Advocates of homosexual marriage accepted that Kennedy’s decision was but one step in the long march. Two years later, the Court would prohibit states from excluding same-sex couples from marriage. And seven years after that, Justice Thomas would question the entire system, the “decent and honorable religious or philosophical premises,” in his Dobbs concurrence. Voters asked, “what’s substantive due process?” Jerry Nadler replied, “marriage equality.”
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Twenty-five days after the Dobbs decision was released in June, Nadler reintroduced the Respect for Marriage Act (RFMA), the House passed it the next day, and Chuck Schumer is ready for the upper chamber to vote this week during the lame-duck session.
The provision of a federal definition of fake marriage has come full circle. The RFMA says that “an individual shall be considered married if that individual’s marriage is between 2 individuals and is valid in the State where the marriage was entered into.” That sweet poetry will become law if Schumer finds ten Republicans to vote in favor.
Let’s be clear: this legislation is not agreeing to disagree. Within a span of ten years, our federal government has moved from defending marriage as it is to respecting marriage as it isn’t. To these concerns, drafters of the legislation say: "Fear not. Religious liberty and conscience are protected." Why does the legislation make explicit reference to the maintenance of religious liberty protections by federal law and the Constitution? Perhaps there will come a day when everyone needs to respect marriage. But I am only guessing.