Robert P. George

Robert George took to the blog of Witherspoon Institute on Friday to make his case for marriage discrimination. Perhaps his similar amicus brief did not suffice. Dr. George is a prominent apologist for the Catholic Church. His objective is to support Church teachings while ostensibly positing a secular argument.

The Supreme Court justices have been in conference this morning. It is likely that they have taken a vote on Obergefell v. Hodges and determined who will write the opinion. Since this is a 14th Amendment case, I will jump to the applicable part of George’s piece titled “Marriage and Equal Protection.” I am ignoring a considerable amount of text that I would relegate to religiously inspired blather:

Protecting Marriage as a Conjugal Union Is Not Analogous to Racism

Throughout history and across cultures, marriage has been defined as a conjugal partnership precisely because the sexual-reproductive complementarity of man and woman has been understood as central to it. That has been true even in cultures that permit polygamy. Race was generally not regarded as having anything to do with what marriage is or the social purposes it served. After all, a man and a woman of different races can unite in a bond of precisely the sort that is oriented to procreation and would be fulfilled by their having children together.

I wish to never see the word “complementarity” again. George disingenuously redefines marriage as a union designed for the production of offspring. This is nothing other than an argument of convenience. George is not limiting marriage to a conjugal union (many couples marry with no intention or ability to crank out kids). The reality is that George wants to limit marriage to opposite-sex unions. This, in turn, discriminates against gays. Discrimination against people based on sexual orientation is no different than discriminating against people based on their race. Dr. George should know that based upon United States v. Windsor. It is the condition that George never addresses because the Church asserts that sexual orientation discrimination is not only acceptable but necessary. George goes on to write:

In the case of Loving v. Virginia, the Supreme
Court struck down anti-miscegenation laws precisely because they
represented and reinforced just the kind of racial injustice that the
Fourteenth Amendment was enacted to dismantle. The racial
classifications these laws introduced were rooted in sheer prejudice and
lacked any rational basis or relationship to a legitimate governmental

What George conveniently ignores is that the 14th Amendment has been used for numerous decisions having nothing to do with race. A good example is Griswold v. Connecticut. Briefly, Connecticut’s Comstock Act outlawed contraception. In 1965, by a vote of seven to two, the Supreme Court struck down the law on the grounds that it violated the “right to marital privacy.” The Court determined that a fundamental “right to privacy” was protected by the 14th Amendment’s Due Process clause.

Interestingly George describes anti-miscegenation laws as “sheer prejudice.” That is the very basis for same-sex marriage bans which would not exist except for animus for, and disapproval of, gays. They serve no justifiable purpose while damaging gay couples and their children. George eventually concludes:

For the Court to strike down laws defining marriage as the conjugal
union of husband and wife would be to abolish the idea that men and
women matter—equally—in the lives of the children they create. And it
would be both a judicial usurpation of legislative authority and a
federal intrusion into a matter left by the Constitution in the hands of
the states.

Current family law does not define marriage as “the conjugal union of husband and wife.” Saying otherwise is dishonest. At the risk of repeating myself (George does that to people), defining marriage as “the conjugal union of husband and wife” would limit marriage to couples capable of, and willing to, manufacture children. I am unaware of any state requesting that information for the issuance of a marriage license.

As George knows perfectly well, if same-sex marriage bans are deemed unconstitutional, striking them down is not a “judicial usurpation of legislative authority.” The Court is doing what the Court is supposed to do. It’s just that, in this case, Dr. George would not like that outcome. Claiming that a decision that he disapproves of amounts to “intrusion into a matter left by the Constitution in the hands of
the states” is absurd. This case is all about equal protection and due process afforded by the Constitution.

George and his ilk have never produced a cringe-proof argument to support the concept that same-sex marriage has some mysterious effect on opposite-sex couples. Not that they haven’t tried and will continue to try.

By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.