by Bob Wheeler

Last week (Tuesday, May 20, to be exact), Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania handed down his decision in the case of Whitewood v. Wolf, in which the plaintiffs challenged Pennsylvania’s ban on same-sex marriage. Judge Jones concluded that the ban does, in fact, violate the due process and equal protection clauses of the U.S. Constitution, which presumably gives every U.S. Citizen the right to marry whomever he / she wants. Discrimination on the basis of sexual orientation is deemed unconstitutional. Gov. Tom Corbett has announced that his administration will not appeal the decision.

    In the part of the decision that most concerns us who oppose legalizing same-sex marriage, Judge Jones held that “the classification imposed by Marriage Laws based on sexual orientation is not substantially related to an important government interest” (Opinion, p. 38). The state had argued that it had just such an important interest in “the promotion of procreation, child-rearing and the well-being of children,” as well as in maintaining tradition. Judge Jones ruled that this argument cannot withstand the heightened scrutiny required to justify discrimination, and so he decided in favor of the plaintiffs.

    The state’s interest in preserving marriage a s a union between a man and a woman should have been obvious. The state has an interest in seeing that children are born into stable, two-parent families, that wherever possible they are raised by their biological parents, and that the parents be healthy role models for them. This means that ideally every boy should have a father and every girl should have a mother. A pair of caretakers who cannot accept their own biological identities is hardly ideal. Significantly a number of the plaintiffs are seeking to raise children together. Where are the missing biological parents? Has the state no interest in protecting their rights?

    Daniel Patrick Moynihan, in his Godkin Lectures delivered at Harvard in 1985, quoted anthropologist Bronislaw Malinowski as saying that “one of the very few seemingly universal rules of social behavior” is “the principle of legitimacy, which holds that every child shall have a recognized father.” Human beings could behave like other species: the role of the male is “to impregnate and disappear.” “And yet in all human societies the father is regarded by tradition as indispensable.” And he adds, “this is by no means only a European or Christian prejudice; it is the attitude found amongst most barbarous and savage peoples as well” (Moynihan, Family and Nation, p. 169). It appears that we have embarked upon a social experiment unprecedented in human history.

    All of this raises a pertinent question. If the state does not have an important interest in procreation and child-rearing, what interest does it have in regulating sexual conduct at all? What is the purpose of marriage in the first place? If one does not need to be married in order to engage in sex, and if one may marry any sexual partner he may desire, and if one does not need to stay married once it no longer suits him to do so, what is the point of marriage? Has it not largely become irrelevant – little more than a legal technicality? What Judge Jones has done, in effect, is to trivialize the institution of marriage.

    Ironically Judge Jones is the same federal judge who in 2005 decided the case of Kitzmiller v. Dover Area School District, the infamous decision that declared that it was unconstitutional to mention Intelligent Design in a public school classroom. In the Whitewood case Judge Jones did not reference the earlier Kitzmiller decision, but we cannot help but wonder if there is an indirect connection anyway. If there is no such thing as Intelligent Design, then sex exists for no particular reason or purpose. It is simply there, an accident of nature, and presumably we are free to use it for whatever purpose we please. But in so doing we loosen the bands that hold together society. The results of our sexual liberation so far have not been favorable.

    In the words of The Book of Common Prayer, marriage is “an honourable estate, instituted by God, signifying unto us the mystical union that is betwixt Christ and his Church,” and is “not by any to be entered into unadvisedly or lightly; but reverently, discreetly, advisedly, soberly, and in the fear of God.” It works best when it works the way God intended it to – as a permanent, binding, exclusive commitment between a man and a woman. Anything else is to invite social chaos.