Civil Marriage is Legally Sacred

From Guest-Blogger Steven Fitschen (Regent 1999), President, The National Legal Foundation.

I am grateful to Lynne for inviting me to be a part of the marriage debate at the Virginia State Bar's Annual Meeting last month and for allowing me to write about the experience here. One of the Annual Meeting's so-called Showcase CLEs, the event was entitled "Marriage in Virginia: The Changing Status of Same-Sex Couples and Their Families."

It started with remarks by Virginia's Attorney General, Mark Herring. This was certainly appropriate in that Mr. Herring is a hero to those who believe that Virginia's one-man-one-woman Marriage Amendment and marriage statute are unconstitutional, while he is a villain to those who believe that both the amendment and statute are not only constitutional, but also the only approach to marriage that matches millennia of wisdom, cultural heritage, and religious conviction. This is so because he reversed the course of his predecessor, Ken Cuccinelli, who had vigorously defended the amendment and statute in court. Mr. Herring refuses to defend them or to appoint anyone else to defend them and, in fact, has joined his former adversaries in opposing the amendment and statute.

No surprise: the hero/villain left without fielding questions and without participating in the panel debate.

So three of us on each side of the issue slugged it out, although "slugged it out" is probably an overstatement. For once, this issue was actually debated with civility. (You can see the list of panelists in Lynne's post of June 12, 2014.)

My points were fairly simple, but new to most people. I had realized that (as of the time of the debate) two crucial sentences had appeared (in whole or in part) in the court opinions of Virginia's same-sex marriage case and 14 others. These sentences had their origin the U.S. Supreme Court case, Griswold v. Connecticut, and also appear in five other Supreme Court cases dealing with various aspects of marriage. The crucial sentences are these: "We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred."

Two things must be observed about these sentences. First, the critical phrase, "intimate to the degree of being sacred," is ALWAYS invoked at the talismanic level: if it's intimate, it's worthy of being called marriage. But such invocation is invalid. If pro-same-sex litigants are going to routinely invoke this language; they, their opponents, and the courts must take it seriously.

The Supreme Court never held anything like "if it's intimate, it's worthy of being called marriage." Nor could it with any legitimacy. Not everything intimate is either marriage or sacred. To take the easiest example, adultery is by definition not marriage. And by the authoritative texts of many religions—and as any victim of a cheating spouse can attest—it is not sacred.

Rather, and the second thing that must be observed, the Court has held that civil marriage—which was the only kind of marriage the Court ever addressed—must legally be recognized as sacred. Now I know that can fry the minds of lawyers and even lay people who are trained to think in terms of modern Establishment Clause jurisprudence. And because of that, I spent some of my time at the debate fleshing out this problem and some solutions to it.

However, let me repeat: civil marriage must legally be recognized as sacred.

Two downstream consequences follow from this. First, we (meaning all those on both sides of this debate and those without made up minds) should expect people of faith—including Christians like me—to continue to oppose same-sex marriage. After all, things that are sacred are the special province of religion. When one asserts—as the Supreme Court and the pro-same-sex litigants correctly have—that civil marriage is sacred, one ought to expect a theological examination of what validly constitutes civil marriage. So sorry to take your rhetorical flourish so seriously.

Second, in light of the first consequence, it is illegitimate to call such opposition "animus" or "bigotry." And that is why I ended my prepared remarks with calls for 1) pro-same-sex marriage advocates to stop using such name-calling against those who hold an opposing view, 2) pro-one-man-one-woman advocates to refuse to self-censor religious arguments, and 3) those who are undecided to at least recognize that on THIS point, the name-callers are wrong. This debate stood apart as a civil and respectful opportunity to discuss the key issues involved in marriage policy. The marriage debate at the Virginia State Bar's Annual Meeting at the Beach in June was a great opportunity to debate a cornerstone of public policy, and I appreciate the chance to write about the experience here.

The National Legal Foundation is a Christian public interest law firm dedicated to the preservation of America's freedom and constitutional rights and can be found at http://nlf.net and contacted at nlf@nlf.net.