Roe and Gay Marriage: Will the Court Repeat Itself?

Pro life march

“You should be very hesitant about shutting down a political debate.”

This statement is directed at the United States Supreme Court. It echoes something I’ve written about repeatedly here on Public Catholic: I think that it would be a mistake that would harm the country for the Supreme Court to issue a sweeping ruling about gay marriage.

My reason is not based on the fact that I support traditional marriage. It is based on the tragedy of Roe v Wade. The states were debating the issue of abortion at the time Roe v Wade was issued. Some states were beginning to allow abortion in a broad range of circumstances, others were not. Some, such as New York, had passed laws allowing a broader availability of abortion and were considering narrowing what they had done. 

Komen planned parenthood story body

All this was part of the natural process of the way our Republic works. It was contentious, but it was also healthy. When the Supreme Court stepped in and took the question out of the states’ hands, it created a culture war that has gone on for 40 years and that shows no signs of abating. It also created a social situation which gave rise to direct attacks on our freedoms under the Constitution such as the HHS Mandate. 

Gay marriage is in a similar situation as abortion was before Roe. It is gaining public acceptance. Laws in several states are beginning to reflect this public acceptance. 

However, I think that if the Court steps in with a broad ruling, it will create a situation similar to the one Roe did. The country is already greatly damaged by the culture war Roe created. This damage is on-going and, in many ways, getting worse. If the Court adds gay marriage to this situation it will create God only knows what kind of tragedy for this country. 

I’ve read that Supeme Court Justice Ruth Bader Gingsberg feels the Court should have overturned the Texas law that was being challenged in Roe and left the other laws intact. I think she sees the problem, but not the solution. The Court should have remanded the issue of abortion back to the states. Period. Which is what they should do with gay marriage.

Notice I do not say that I think they should rule that marriage is between one man and one woman. They should refer the issue to the states, and let the system work. 

Let the people speak. 

It’s that simple. 

Here is a discussion of what I’ve been talking about from — of all places — the New York Times. It says in part:


WASHINGTON — When the Supreme Court hears a pair of cases on same-sex marriage on Tuesday and Wednesday, the justices will be working in the shadow of a 40-year-old decision on another subject entirely: Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.

Judges, lawyers and scholars have drawn varying lessons from that decision, with some saying that it was needlessly rash and created a culture war.

Justice Ruth Bader Ginsburg, a liberal and a champion of women’s rights, has long harbored doubts about the ruling.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said last year at Columbia Law School.

Briefs from opponents of same-sex marriage, including one from 17 states, are studded with references to the aftermath of the abortion decision and to Justice Ginsburg’s critiques of it. They say the lesson from the Roe decision is that states should be allowed to work out delicate matters like abortion and same-sex marriage for themselves.

“They thought they were resolving a contentious issue by taking it out of the political process but ended up perpetuating it,” John C. Eastman, the chairman of the National Organization for Marriage and a law professor at Chapman University, said of the justices who decided the abortion case. “The lesson they should draw is that when you are moving beyond the clear command of the Constitution, you should be very hesitant about shutting down a political debate.” (Read the rest here.) 

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  • Manny

    What a Conservative position. ;) I agree. I think gay marriage is absurd, but each state legislators should come to that conclusion. I don’t see what other conclusion the Supremes could come to, but the world has been turned over on its head now for forty years, so who knows? Marriage is defined by society, in terms of age, number of spouces, family relationship, and gender. There is nothing in the constitution that stipulates marriage should be any particular definition. In fact states already differ. So no one here should win, neither the gay lobby nor the people with reason and sanity.

    By the way, I would beg to differ on the abortion issue. I think the Supremes in 1973 had an obligation to say that all human life has a right to life, liberty, and the pursuit of happiness. An embryo is a human life. The court should have rightly used a heavy hand there, but they chose the wrong answer to apply their lead weight. There is no operating reason that life starts at birth. They could have arbitrarily decided that life begins at two years of age as some “ethnicists” claim. All we know is that at conception the human DNA is formed, and that is human life. I think abortion is flat out unconstitutional.

    • pagansister

      Manny: “I think abortion is flat out unconstitutional”. Not new argument but IMO it is unconstitutional for a woman to be told she cannot have one. That was tried—-and so they were done anyhow, either in other countries or underground, or self done. As to SSM? Again, IMO, it is a civil right.

      • Manny

        In the case where two rights conflict, one has to chose the greater one. Killing an unborn human being is denying him the most fundemental right. I’m sorry a woman has to have this freedom denied her. If I can personally take that burden from her, I would. But it’s just as a denial of the father’s freedom to walk away. It’s not a male/female dichotomy. Once a pair generates life, they have become responsible for it. Neither can walk away.

        • pagansister

          “Once a pair generates life, they have become responsible for it. Neither can walk away.” Manny
          Guess there are a lot of men who don’t feel that way, thus the cause of some (by no means all) terminations.

          • Rebecca Hamilton

            Unfortunately Pagansister you are right about this.
            “Guess there are a lot of men who don’t feel that way, thus the cause of some (by no means all) terminations.”

          • Manny

            Yes, you are right about that. I wish I could smack those men across the head. But really pagansister, killing the innocent is not the answer.

          • Theodore Seeber

            Agreed. Which is why we need to stop preaching “I’ve got mine and the child who threatens that must die” and start preaching responsibility.

    • Rebecca Hamilton

      “What a Conservative position. “

  • Kathleen Casey

    Exactly right, Rebecca. Constitutional lawyers should keep their skirts out of it and jettison the issue back to the state legislatures just as they should have with Roe. Anything more is legislating.

  • SteveP

    Rebecca: In addition no one has really articulated what the 5, 10, and 15 year consequences of “gay marriage” legalization would be . . . perhaps if you could time-transport baby boomers back to 1970 they could convince their younger selves that abortion kills those who would have provided a comfortable retirement for them. We can count on people acting for their own self-interest but can we count on them to take a longer term, a multi-generational, view?

    • pagansister

      SteveP: There have been same gender relationships that have lasted longer than many male/female marriages. Recently there was a lesbian couple that had been together for over 50 years and finally were able to marry. Who does that harm? No one. How in the world SSM harms anyone is beyond my comprehension. Yes, it isn’t considered “normal” in the Church and thus the Church won’t marry a SS couple—that’s fine and as it should be, but there are other places where SS couples can legally marry. I’m not one of the younger generation that finds no problem with SS marriage—obviously—-but personally, I think that in another few years it will just be part of life—-just like mixed race marriages, or longer ago than than——no more slavery.

      • Rebecca Hamilton

        Pagansister, this is not about same-sex relationships. It is about redefining the basic building block of Western Civilization, and to no purpose I might add. There is nothing that homosexual couples actually require in legal terms that can not be done without redefining marriage.
        You are talking apples with private relationships and I am talking oranges with legal definitions of the union on which our civilization is built.
        We may actually take the poison and redefine marriage in this way, but if we do, our whole society will suffer for it, especially children. We have already paid a horrible price for what we done to marriage in the past decades. Subjecting its basic definition to this social trendiness will pretty much demolish it as a cradle for our young.

      • SteveP

        pagansister: Recall the argument for legalization for contraception to be “so wives can enjoy their husbands between children.” Are you able to say that is the only reason that contraception is in use now? Have there been consequences of legalization which were not foreseen at the time of legalization?
        Recall the argument for legalization of abortion was to prevent the death of young women, abortion being a rarity. Are you able to say that abortion is rare? Have there been consequences of legalization which were not foreseen at the time of legalization?
        You may want to stop and think through the scenarios that may present themselves if a man has the legal right to another man’s pension.

        • pagansister

          Actually, SteveP, I do not recall the argument for legalization for contraception was “so wives can enjoy their husbands between children”. My reason (and that of my husband) was so we could limit our family to the size we could financially take care of in the way we wanted to—thus 2 children. As to consequences of that legalization? As far as I’m concerned—-no problems. The legalization of abortion? Glad it is legal if deemed necessary by the woman. Is it a rare? Don’t keep track.
          Do not understand your last question—is that different than a wife/husband receiving the survivors pension?

          • SteveP

            pagansister: May I point out that the set called “your good” and the set called “common good” seem to be coterminous in your reply? As I asked above: we can count on people acting for their own self-interest but can we count on them to take a longer term, a multi-generational, view? I think you just answered: No.

          • Theodore Seeber

            “My reason (and that of my husband) was so we could limit our family to the size we could financially take care of in the way we wanted to—thus 2 children. ”

            Am I the only one that finds it incredibly sad that Americans are forced to think like this? You’re not the only ones either.

    • Dale

      SteveP wrote: ” In addition no one has really articulated what the 5, 10, and 15 year consequences of “gay marriage” legalization would be.”

      Massachusetts began performing same-sex marriages in May 2004, which was nine years ago. Does the experience there offer any indication of those consequences?

      • Rebecca Hamilton

        I don’t think so, for the simple reason that a relatively isolated law in one state does not make a cultural shift. What we are talking about here is basically the end of marriage as an institution reserved for the creation and nurturing of our young. This is, among other things, an attack on the basic rights of children to grow up in a family with their own father and mother.

        • pagansister

          Rebecca, how many children grow up now with their own father and mother? How many children are in the foster system, taken away from that mother AND father for various reasons? As I have said in the past—ideal would be ideal—-but the world isn’t ideal—never has been, never will be. Many same gender couples have adopted those little ones and are giving them what their bio, hetero “family” didn’t—love and security. Also, how many times a week do I see or hear on the news about the “mother’s boyfriend” or the father of the child has killed the little one? The “basic rights of children to grow up with a family with their own father and mother” is, in a lot of cases—-not happening.

          • Rebecca Hamilton

            Pagansister, I am well aware that heterosexuals have trashed marriage these past decades, however, I do not see that as an argument for obliterating it. We need to rebuild marriage, not destroy it utterly. As for your Hallmark card analysis about gay couples adopting homeless children, I suppose some do, but what I’ve seen far more of is farming women’s bodies for eggs and using women as surrogates to “create” babies.

            • pagansister

              I agree, Rebecca, some gay couples have used surrogates (who are not forced to be surrogates) for a child/children. Lesbian couples have had one partner carry the child/children—obviously with a sperm donor. (again, no one forces men to donate). However in my communication on a couple of sites, the person I was posting with was 1/2 of a SS couple who had adopted brothers, and a single child. I don’t think it is uncommon–but couldn’t prove it with numbers. As to the women donating their eggs? I couldn’t do that or be a surrogate (to old anyhow for either part) and as my son said—my sperm is for my child, not some one else. But obviously some men do not feel that donating doesn’t make the future baby partly theirs. I know we won’t agree on SSM, but I enjoy the conversation….thank you.

              • Rebecca Hamilton

                I’m going to post extensively on the evils and misogyny of egg harvesting in the future. I won’t go into it here, but stay tuned.

    • Theodore Seeber

      Actually, most baby boomers I know IRL that I talk to about this are all for limiting the population so that there are more resources for geriatric care. Their attitude seems to be “We got ours, the younger generations only exist to serve us. Better that they shouldn’t have children else it might threaten my ability to get twice my salary out of social security.”

  • Theodore Seeber

    I am certain of one thing- legislating gay marriage by judicial fiat will cause a civil war. And not a cold one either- a real constitutional crisis with guns and bombs.

    And that is EITHER way. I have no illusions about homosexuals being non violent, and the other side has the NRA and people already hoarding weapons against federal dictatorship.

    • Rebecca Hamilton

      I wouldn’t necessarily say a civil war Ted. But I think it will set off a protracted struggle that will divide our society even further. Regardless of what the Court does, we are in for a long fight. But if the make the mistake of trying to legislate by judicial fiat, it will be much, much worse.

  • Manny

    Now that I’ve fully thought about this, I realize that the DOMA law is also in question. I don’t see why DOMA would be unconstitutional. It was passed by Congress and signed into law. DOMA does supercede State’s laws, and I would prefer States to decide the issue. But why would DOMA be unconstitutional since there are tons of laws the Federal goverment makes over the states? I think DOMA is constitutional.

  • Guest

    “Let the people speak.
    It’s that simple. ”

    I only wish it were.
    First of all, the people tried to speak in Prop 8 and were overturned by courts who want to ‘legislate from the bench’ as the popular saying goes. The right of the people to choose the laws they want to be governed by really doesn’t exist anymore. It seems every law has to pass a politically correct smell test even if it means using a warped interpretation of state and/or federal constitutions to do so.
    Secondly, regarding Roe v Wade, we cannot leave the overarching question of personhood and the right to life to individual states. There is no question in my mind that is more suited to a national decision. Roe v Wade was the right approach although (obviously to me) the wrong decision.