Revolution by Judicial Fiat

The views expressed by the author do not necessarily reflect the editorial opinion of The Christian Post or its editors.

While a common view is that social conservatives have "lost" the culture war, little other result was possible due to the power of the U.S. Supreme Court. This point was made clear at a presentation at the Family Research Council on May 8, which reviewed the judicial decisions issued, political moves made, and ideological positions taken in the mid-twentieth century that led to the current collapse of marriage, morality, and the family.

William Duncan, Director of the Marriage Law Foundation (with a mission of re-affirming traditional definition of marriage as union of one man and one woman), offered one of three presentations, his focusing on the Supreme Court's decisions which preceded its decisions on homosexuality in the 1990s and 2000s.

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Rick Plasterer is a staff writer for IRD concerned particularly with domestic religious liberty.

Duncan began by noting common judicial opinion about marriage and the family before the sexual revolution, citing a 1952 decision from the California Supreme Court in which marriage was held to be "a great deal more than a contract, 'the family is the basic unit of our society, the center of personal affections … it channels biological drives that might otherwise become destructive, it insures the care and education of children in a stable environment, it established continuity from one generation to another.'" Although it would be the 1970s before there was a radical departure from this understanding, the 1960s saw the decisive shift that made everything that came after it possible.

Language such as that of the 1952 California decision dropped out of usage at the U.S. Supreme Court, and a new understanding of marriage and the family was foreshadowed in the 1965 Griswold vs. Connecticut decision. This decision, the result of a lawsuit by Planned Parenthood, declared a Connecticut law prohibiting artificial contraception to be unconstitutional. This was found to violate a "right of privacy" which was held to exist in a marital relationship. Although speaking favorably of marriage, Duncan noted that the Griswold decision backed away from the concept of marriage as a permanent union of man and woman, and referring to it as an "association" which would "hopefully" endure. Earlier court decisions would have referred to marriage as a "union" or an "institution," Duncan said. In addition to downgrading the understanding of marriage from a vital union which forms "the basic unit of society," and concerned with children, the Griswold decision strengthened the right of sexual choice, saying that the choice of a married couple to use contraception is protected by the intimate nature of marriage, and is grounded in a law "older than the Bill of Rights" (and thus presumably older than the Constitution), although it was buttressed with broad statements held to point to a right to privacy drawn from the First, Fourth, Fifth, and Ninth Amendments to the Constitution. The right of privacy was thus made a constitutional doctrine, and violation of it a violation of the person, although at this point, this powerful new constitutional doctrine was kept within the marriage relationship, indeed, it was in some measure justified by being a right that pertained to marriage.

The truly radical departure from the traditional understanding of marriage and morality occurred in 1972, Duncan observed, in the Eisenstadt vs. Baird decision. This decision extended the constitutional "right of privacy," which gave a right to use contraception, to cases of non-marital intercourse. This was done by declaring the "right of privacy" to be an individual right, not one that could be restricted to marriage. And to do that, the court deconstructed the traditional idea of marriage. The court denied that a marriage was an "independent entity, with a mind and heart of its own," but remains the association of two individuals, a radical departure from the traditional Christian doctrine, derived from the words of Jesus, that two persons become one in the union of marriage (Matt. 19:4-6; Mk. 10:6-9). To state the obvious, giving any sort of rights or dignity or respect to non-marital intercourse, which in Christian and other traditional morality is regarded as among the gravest of sins, was a truly radical departure from the past. The decision did not directly invalidate laws against fornication or adultery, however, but the right to contraception becomes a right fundamental to personhood whether a person is married or not. Thus, Duncan claimed, the Eisenstadt decision reduced marriage and the family to "a mere lifestyle choice." The right of sexual choice that the Eisenstadt decision introduced is "an individual right, not the right of an entity of two people who have joined together in a binding union."

The Supreme Court's subsequent decisions pertaining to sexual relations were shocking to a large part of the American public, but "the logic relentlessly follows from" this radical departure the traditional understanding of marriage and morality, according to Duncan. Some of the most radical decisions of great import today quickly followed. The Roe vs. Wade and Doe vs. Bolton decisions (both issued in 1973), which established a constitutional right to abortion were based on the (now individual) right to privacy, a right to choice in child bearing the state was held to infringe upon by prohibiting abortion. In the Department of Agriculture vs. Moreno case, (also issued in 1973), the court voided a Congressional provision restricting food stamps to only those families composed of members related to one another. Nontraditional ("hippie") families were excluded. The court did not challenge the use of families, rather than individuals, as the recipients of food stamps, but found unconstitutional the restriction of food stamps to natural families. Although use of the natural family as a criterion to receive food stamps would be very reasonable in a pre-1960s environment, both to prevent fraud and to reinforce the ideal of the natural family, the court held the law resulted from "a bare desire to harm" persons living in these non-traditional relationships. With traditional marriage and the family no longer an ideal in law due to the Eisenstadt decision, it was held that only unwarranted hostility could explain Congressional intent. This decision was crucial to decisions in recent years finding laws resisting the advance of homosexuality to be based on "impermissible animus." Other decisions found laws requiring spousal consent to abortion to be unconstitutional, and laws which tend to inhibit access to contraceptives (including abortion) to be unconstitutional. This, Duncan said, shifted the right to abortion from a "negative right" (not to be restrained from aborting a child) to a positive right (to have access to abortion guaranteed).

The concept of marriage as nothing more than a personal expression of autonomous individuals reached an apogee in the Planned Parenthood vs. Casey decision (1992), which sustained the earlier Roe vs. Wade decision, and which infamously declared that the liberty guaranteed by the Constitution involves the right to define one's own reality and existence. A completely unworkable principle as regards life in general, it is used by the court to protect the individual from the consequences of his or her sexual choices. Marriage becomes simply a choice of "two autonomous individuals" to engage in a joint project of "self expression and self creation." Today's "contraceptive mandate," imposed by the Health and Human Services Administration as part of the implementation of the Affordable Care Act (Obamacare), which requires employers to pay for contraceptives and abortion inducing drugs regardless of their conscience convictions, follows the earlier issued court decisions aimed at protecting individuals from the consequences their sexual choices, Duncan noted.

It might be added to Duncan's comments that this understanding of sexual choice as a "positive right" highlights the most disturbing aspect of the post-1960s marriage and morality jurisprudence, namely that is animated by a moral spirit which is not merely non-Christian, but really anti-Christian. By reasonably claiming that what violates marriage violates the person, and then dubiously claiming that the choice of contraception is obviously derived from that, the court made denial and punishment of sexual choice to be immoral and oppressive, an attack on the person. By extending this right outside of marriage as an individual right, a wholesale attack on Christian sexual morality was possible, since in Biblical morality, all sexual activity outside of marriage is shameful and due punishment. The court's later (1990s and beyond) abortion and homosexuality decisions especially are notable for their tone of scolding the American public; the Casey decision implying that the public is lawless if it doesn't accept court prescribed morality, the Romer, Lawrence and Windsor cases pertaining to homosexuality attacking the public for "irrational hate" and impermissibly enshrining Judeo-Christian morality in law. But holding sexual choice to be a matter above public decision making is a natural result of holding that any restriction on this choice is a personal attack, forbidden by a law "older than the Bill of Rights."

Through these decisions, the Supreme Court has made itself "the ultimate arbiter of what marriage and family means, and what policies the states are allowed to pursue, and the federal government as well." Duncan held that the true principle the Supreme Court has followed in its sex, marriage, and family decisions since the 1960s is the principle annunciated by Vladimir Lenin: "the success of the revolution is the supreme law."

While Christians and social conservatives may lament national apostasy from God and His revelation, we need to remember that the result of the sexual revolution is only partly, and not decisively, the result of changing public beliefs and practices. The reason the sexual revolution prevailed is that it was imposed on the nation by the Supreme Court, and the inability of social conservatives over a number of years to decisively change the composition of the court. But however the sexual revolutionaries prevailed, and they did so undemocratically, it cannot change the truth of God's revelation. For the non-religious or nominally religious, the success of the sexual revolution may be welcomed or regretted, but in any case accepted as final. But what Christians have always been involved in is not a mere political struggle, or even a cultural struggle. In those cases, there comes a time to accept defeat. Our non-negotiable commitment is to obey God, and so what we are engaged in is a religious struggle, which can therefore never be abandoned. The imposition of a sexual ethic hostile to the Biblical revelation gives believers the possibility of displaying the truth about marriage, sexuality, and the family as, Duncan concluded, "a pearl against a black background."

Rick Plasterer is a staff writer for IRD concerned particularly with domestic religious liberty. He attended Eastern Mennonite College (now University) receiving a B.A. degree in history and sociology, and an M.S. in library science from Drexel University.