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?



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  • I remember when I was a very small boy (no more than 3) my Mother and I were visiting a neighbor’s house. They had a daughter, and she had the niftiest thing I had yet seen in my short life, a doll house. I loved how everything was miniaturized, but you could still imagine that it worked, and you could even make the doll walk up and down the stairs (it was a three-story doll house). When Mom saw me playing with it she had what Bill Cosby would call a “conniption”, and it was clear to me that no matter what happened in the future, dolls and their houses were off limits to me as a boy.

    I am not scarred for life. My Mother reinforced my sex role and I’m still here. I feel that I was born male and would still be male even if Mom had let me play with the doll house. I think I approached the doll house in a very boyish way and likely played with it differently from a girl. I have never expressed an interest in dolls or any girl’s things since.

    So is it nature or nurture? I’ll never know what would have happened if I had kept playing with the dolls, but I suspect nothing special. My interest would have petered out in favor of my Tonka trucks, cap gun, and Lincoln Logs. Boys are born boys and girls are born girls, and what our society is trying to do is “reprogram” kids to suit the agendas of their elders. What’s so offensive about it is that kids are defenseless, soaking up everything they’re told like sponges. God help us all.

  • Noel Fitzpatrick

    I am reminded of two or three year old relatives of mine who went to a family party. The little girl initially was quite chatty and then, after everyone admired her dress, went to sleep. The little boy initially was very shy and quiet then he got a poker, jumped on all the furniture, and shot everyone with the poker.

    What is the moral, if any?

    PH, congratulations on your post. All your contributions are sound and solidly Catholic.