Supreme Court on marriage; Synod on family

Maybe it’s the vortex of the perfect storm.

God knows, marriage and family, and therefore society, have been in crisis over these past years and that cultural breakdown has wrought great damage to individuals and societies. What are the factors behind it all? How do we get marriage right and serve the fundamental institution of the family on which a healthy and thriving culture is based? Competing views of both marriage and family have been going at it for decades, and that battle (I hate the pugilistic terminology these days, but it’s more a battle than a struggle) has escalated in the past few years faster and more furiously than before. The stakes are so high. For civilization.

So we arrive at a confluence of events this week.

Pope Francis convened an Extraordinary Synod on the Family at the Vatican over the weekend, an unusual event in the life of the Catholic Church. It didn’t as much  launch as continue a multi-year concentration of energies and focus on problems and issues in modern culture that required something far bigger and more momentous than a symposium, or a written document, a declaration of sorts. Here’s why.

The social and spiritual crisis, so evident in today’s world, is becoming a pastoral challenge in the Church’s evangelizing mission concerning the family, the vital building-block of society and the ecclesial community. Never before has proclaiming the Gospel on the Family in this context been more urgent and necessary.

(emphasis added)

Concerns which were unheard of until a few years ago have arisen today as a result of different situations, from the widespread practice of cohabitation, which does not lead to marriage, and sometimes even excludes the idea of it, to same-sex unions between persons, who are, not infrequently, permitted to adopt children. The many new situations requiring the Church’s attention and pastoral care include: mixed or inter-religious marriages; the single-parent family; polygamy; marriages with the consequent problem of a dowry, sometimes understood as the purchase price of the woman; the caste system; a culture of non-commitment and a presumption that the marriage bond can be temporary; forms of feminism hostile to the Church; migration and the reformulation of the very concept of the family; relativist pluralism in the conception of marriage; the influence of the media on popular culture in its understanding of marriage and family life; underlying trends of thought in legislative proposals which devalue the idea of permanence and faithfulness in the marriage covenant; an increase in the practice of surrogate motherhood (wombs for hire); and new interpretations of what is considered a human right.

Which precisely gets to the marriage redefinition movement that has very successfully built momentum with high profile support and endorsements from celebrities in Hollywood, media, sports, politics, academia, the arts, and the culture at large. The movement to redefine marriage in law has claimed marriage as a human right, a new rendering of an ancient institution, recognized by government up to the recent past as one the State has an interest in preserving and upholding as a union of one man and one woman.

So fast forward past years of litigation in the courts, to the decision by the High Court on Monday, as the Supreme Court opened its new session. It shocked just about everyone. Its effect is being celebrated by proponents as so sweeping, it “could signal the inevitability of the right of same-sex marriage nationwide”, as the New York Times reported it. The Christian Science Monitor called it a ‘Supreme Mystery.’

Why didn’t the US Supreme Court agree to hear any of the seven petitions urging the justices to settle the contentious debate over same-sex marriage?

Speculation abounds.

The justices offered no hint of an answer in Monday’s orders list. The document unceremoniously announced that petitions from each of the cases from five different states had been denied…

It is even more puzzling because the Supreme Court had several times earlier this year issued stays to block orders by lower courts that sought to immediately allow same-sex couples to marry in states where a ban was struck down. Why would the justices seek to preserve the status quo for several months only to apparently change their mind now?

Sometimes justices who believe the court should decide a particular case will file a dissent and explain to the public why the court should take up the case. Nothing like that was presented on Monday.

And therein lies a clue as to what happened in this decision. It’s just one idea, but an insightful one, by Ed Whelan.

For what it’s worth, here’s my theory explaining yesterday’s order denying review in the SSM cases:

One or more of the three conservative justices who might most be expected to object to denial—that is, Scalia, Thomas, or Alito—instead concluded that denial was the best course. Why? Because that justice (or those justices) became convinced that Kennedy was beyond persuasion and that he was a certain fifth vote to invent a constitutional right to same-sex marriage. On that understanding, the least-worst option would be to deny review and thus (for the time being, at least) prevent the Supreme Court from placing its formal imprimatur on the developments below.

(Meaning those that came out of the lower courts, which they by necessity would have had to review and decide in the High Court.)

I think that this is the only theory that adequately explains why none of these three justices publicly registered a dissent. In particular, I don’t think that a competing theory—that the Chief Justice voted to deny but that Scalia, Thomas, and Alito all voted to grant—can explain the absence of a public dissent.

I don’t think that there’s any difficulty explaining why the four liberals would go along with the denial. Even if they’re equally confident of Kennedy, it’s much easier from their perspective to let the lower courts do the spadework and to intervene only if and when a court rules against a constitutional SSM right.

It makes sense. Whelan seems to offer the only – or best – plausible explanation for this stunning decision. There will be consequences, as we know already.

Which gets back to the Synod at the Vatican, dedicated to healing the world of hurt over ruptures in societies and civilization in this historic turning point. Vatican expert George Weigel (another EPPC scholar, like Whelan) posted a heartfelt request for a Synod of Affirmation. Weigel gets to the point, a couple of them in fact.

The collapse of marriage culture throughout the world is indisputable. More and more marriages end in divorce, even as increasing numbers of couples simply ignore marriage, cohabit, and procreate. The effort to redefine “marriage” as what we know it isn’t, and to enforce that redefinition by coercive state power, is well-advanced in the West. The contraceptive mentality has seriously damaged the marriage culture, as have well-intentioned but ultimately flawed efforts to make divorce easier. The sexual free-fire zone of the West is a place where young people find it very hard to commit to a lifelong relationship that inevitably involves sacrificing one’s “autonomy.” And just as the Christian understanding of marriage is beginning to gain traction in Africa, where it is experienced as a liberating dimension of the Gospel, European theologians from dying local churches are trying to empty marriage of its covenantal character, reducing it to another form of contract.

Rome, we have a problem.

Pope Francis understands the crisis of marriage culture in its multiple dimensions, just as he understands that the family, which begins in marriage, is a troubled institution in the post-modern world; that’s why he’s summoned two Synods on the topic of the family. And that’s why the Synod, fully aware of the gravity of the situation, should begin, continue, and end on a positive note, offering the world a pearl of great price: the Christian understanding and experience of marriage.

The Synod discussion, in other words, should take the crisis of marriage and the family as a given and then lift up Christian marriages, lived faithfully and fruitfully, as the answer to that crisis. The Synod should begin with what is good and true and beautiful about Christian marriage and Christian family life, and show, by living examples, how that truth, goodness, and beauty respond to the deepest longings of the human heart for solidarity, fidelity, and fruitful love.

It’s quite obvious that the Church faces real pastoral challenges in dealing with broken marriages and their results. But to begin the discussion of marriage and the family in the twenty-first century there is to begin at the wrong end of things. For it is only within the truth-about-marriage, which was given to the Church by the Lord himself, that compassionate and truthful solutions to those pastoral problems can be found.

This is only the middle of week one of two weeks of this Extraordinary Synod on marriage and the family. And just two days after the Supreme Court decision not to decide the marriage questions. Stay tuned, these are interesting times.