The Court "Upholds” the Constitution by Ruling against Reality
It is often said that one cannot legislate morality. But of course that is precisely what is legislated. The state has the responsibility to ensure justice and to help its citizens grow in virtue. One of the ways in which it does this is through the coercive effects of laws. Just laws are intended not merely to constrain bad behavior but also to foster good behavior for the benefit of the individual citizen and for the benefit of the common good.
Tax laws are passed to determine what citizens ought fairly to contribute financially to the common good, i.e., what their financial moral obligation is with respect to the society in which they live. Even traffic laws are passed to ensure the safety of every one and to engender a sense of responsibility toward the other.
However, in the United States today we have lost a common sense of morality; we have lost a shared moral vision. Consequently it is thought that the only thing to which we can now appeal in pursuit of the common good is the “law” since it is universally binding. However, if the “law” does not give expression to that which is moral, it is merely arbitrary, and it is ultimately based upon the whim of the most powerful.
Despite a denial of the moral character of the law today, those who appeal to its most socially radical applications do so almost exclusively in the language of morality. Those who advocate for legal access to abortion argue that this respects a woman’s freedom of choice, and free choice is at the heart of morality. Those who advocate for a legal recognition of homosexual unions as marriage began with an appeal to “gay marriage”, then “same sex marriage” over against “opposite sex marriage” and finally they appealed to “marriage equality”. If states had not recognized the legality of same sex marriage it was claimed that they had “banned” marriage equality. They all use the language of morality.
The Catholic Church has always recognized the moral character of the law. In his great encyclical “The Gospel of Life”, Blessed John Paul II, developed the relationship between morality and law at great length. He recognized the loss of a shared moral vision, particularly as it touched on the life issues:
- “The State is no longer the ‘common home’ where all can live together on the basis of principles of fundamental equality, but is transformed into a tyrant State, which arrogates to itself the right to dispose of the life of the weakest and most defenseless members, from the unborn child to the elderly, in the name of a public interest which is really nothing but the interest of one part. The appearance of the strictest respect for legality is maintained, at least when the laws permitting abortion and euthanasia are the result of a ballot in accordance with what are generally seen as the rules of democracy. Really, what we have here is only the tragic caricature of legality; the democratic ideal, which is only truly such when it acknowledges and safeguards the dignity of every human person, is betrayed in its very foundations. . . When this happens, the disintegration of the state has already begun.” (EV, 20)
Democracy, he said, “depends on conformity to the moral law to which it, like every other form of human behavior, must be subject: in other words, its morality depends on the morality of the ends which it pursues and of the means which it employs.” (EV, 70)
Thomas Aquinas wrote that "human law is law inasmuch as it is in conformity with right reason . . . But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence".(ST 1a2ae, q 93, a3,r 2)
Marriage has almost universally been seen as consummated, as made fully binding, with the marital act between a man and a woman ordered naturally toward the generation of children. Same sex couples are incapable of such an act. The acts they do perform are not ordered toward the generation of life and are disordered. No state or federal law can change that. As Pope John Paul said, “No circumstance, no purpose, no law whatsoever can ever make licit an act which is intrinsically illicit, since it is contrary to the Law of God which is written in every human heart, knowable by reason itself, and proclaimed by the Church. “ (EV, 62)
The state legislates morality to guarantee justice, to protect the weak and the innocent , to foster virtue among its citizens and to contribute to the common good. What the state cannot legislate is “reality”. It cannot decree that gravity does not exist or that the sun will rise in the West. The state cannot decree that the publically pledged friendship between two men or two women is marriage.
Marriage is a reality that precedes the state; indeed that precedes Judaism or Christianity. It is a natural and universal institution that exists for the sake of the man and woman who enter into it, for the sake of the children arising from the act that consummates the union, and for the sake of the common good of society.
No state legislature or federal government can make marriage anything else or turn something else into it. As Isaiah declared: “Woe to those who call evil good and good evil, that put darkness for light and light for darkness, that put bitter for sweet and sweet for bitter.”
It goes without saying that the Supreme Court cannot legislate morality; it cannot legislate at all. Its only role is to determine whether or not certain state or federal laws violate the Constitution. By now declaring that states can recognize in law relationships that have no existence in reality, the Court has handed down a judgment that runs contrary to nature itself and which simply will not be able to endure. Since there cannot be a social order that runs contrary to the natural order, this development places the common good of the United States in grave peril.
John M. Haas
Ph.D, S.T.L, K.M.
The National Catholic Bioethics Center
Ph.D, S.T.L, K.M.
The National Catholic Bioethics Center