I know some of my friends are concerned about Gorsuch describing Obergefell as “absolutely settled law.” I would be more worried except for one thing. As far as I know, no one has a credible case for overturning Obergefell.
The conservative Christian legal community does not have a litigation strategy for overturning Obergefell, to the best of my knowledge. True, I don’t know everyone in that community. But I know quite a few folks. I do not know anyone who is even working on finding the plaintiffs and constructing the arguments for such a case. We cannot blame Trump for that.
And no, religious liberty cases do not cut the mustard. We need arguments that defend marriage, on its own terms. Marriage is good for society. Marriage provides justice and equality for children. Removing the gender requirement from marriage undermines its ability to provide justice and equality for children.
So, it is cheap for people to say anything they want, one way or the other. True, I would have liked it better if Gorsuch had said, “If a case challenging Obergefell were to come before me (wink,wink, knowing this is exceedingly unlikely) I would give it all due consideration and would tend toward overturning it.” But calling it “settled law” when there is “absolutely” no credible case on the horizon, does not disturb me all that much. His opinion on prospective pro-life cases is more significant b/c there may actually be some credible cases in the foreseeable future.
Speaking of the pro-life movement, consider this. What would public opinion around the life issues be today, if the pro-life movement had confined itself to religious liberty and separation of powers and federalism?
- “Roe v Wade interferes with the rights of Catholic doctors to practice medicine as they see fit.”
- “Roe v Wade is judicial overreach.”
- “Roe v Wade interferes with the states’ rights to set their own policies.”
All true statements, to be sure. But all utterly irrelevant to shifting public opinion in a pro-life direction. The pro-life movement gave a full-throated defense of the humanity of the child in the womb, the value of pre-natal life, the harms of abortion to women, and how abortion does not solve the problems it claims to solve. These are much more human, much more compelling points, with vivid imagery that stirs the heart. The other arguments are bloodless and sterile by comparison.
We need a pro-marriage movement that stops talking about religious liberty and starts talking about marriage. And I’m afraid I know why so few people are willing to talk about the rights of children to their parents. Once we say that, the next question will naturally be: “what about divorce? More children lose their parents to divorce than will ever lose them to gay parenting. Are you going to outlaw divorce?”
Trust me, that was and still is the argument. I was in the 9th Circuit courtroom during the Prop 8 case, when Judge Stephen Reinhardt asked Prop 8 defense counsel Charles Cooper that question. The courtroom burst into laughter. They treated the rights of children as a joke. Cooper stood there silent.
I was practically jumping out of my seat. “Answer him! Answer him! Say ‘You are correct. We do want to reform divorce, because current divorce law is unjust.'”
American society, including the conservative and pro-marriage movements, do not want to talk about divorce. Too many people have participated in divorce, and do not wish to stir up guilty consciences. Currently, most of those people are either against the concept of children having rights to their parents, or they are simply silent.
But I think this is also an opportunity. Many people have been unwilling participants in divorce: children, abandoned spouses, grandparents who lose touch with their grandchildren, and many others. Enlist all of those people. Now, you’re talking about a real movement.
If children do not have a right to their own parents, no one has a right to anything.