As I listened to the oral arguments on the constitutionality of Tennessee’s marriage laws on April 28th, I got frustrated. The Justices who appeared to support same-sex “marriage” couldn’t seem to understand the state’s answers to their questions, and I didn’t understand why. At 4:30 Wednesday morning I got my answer.
In short, the reason was that the Justices were asking the wrong questions. Here’s what I mean.
The Importance of the ‘Right Question’
Phillip Johnson, father of the intelligent design movement, wrote in the introduction of his 2002 book, The Right Questions:
“I have learned that the best way to approach a problem of any kind is usually not to talk or even think very much about the ultimate answer until I have made sure that I am asking all the right questions in the right order. … [W]hen I want to persuade a lecture audience, I must be very careful to ensure that the audience understands the question correctly before I try to supply an answer.”
Ironically, the example he gave of what he meant related to marriage:
“[W]hen law reformers in the 1960’s liberalized the law of divorce, in the process they transformed marriage (at least as it’s understood legally) from a sacred bond to a mere civil contract voidable at the option of either party. Although the reformers did not intend to approve same-sex marriage and probably never conceived of it as a possibility, a sufficiently far-sighted person could have seen that the tracks were headed in that direction.”
And then, to show how astute his powers of observation were, he continued,
“Now that the train has picked up a great deal of momentum, anyone can see that it is headed toward approval of gay marriage. The train will eventually get to that destination whether most people like it or not, unless some very strenuous work is done to move the tracks and point them in a different direction. Trying to stop the train by standing in its path is a good way to get run over.”
This was written two years before Massachusetts became the first state to “legalize” same-sex “marriage”!
The ‘Wrong Questions’ the Justices Asked
Applying the foregoing to Tuesday’s oral arguments, the Justices thought to be leaning toward same-sex “marriage” kept asking the states’ attorneys why their states had defined marriage in such a way as to include only opposite sex persons. Why, they asked, could the state not have defined it to include same-sex couples?
Interestingly, in the same vein, the Justices opposed to making same-sex “marriage” a constitutional right asked the correct countervailing question, namely, what would keep someone from arguing that marriage should include three or more people.
Both sets of questions are good ones, and to be perfectly honest, no one on the opposite side of those questions had authoritatively sufficient answers. But that’s because those weren’t the right first questions.
The Real ‘Right’ Question
The right first question was whether marriage is a name that civil society has given to a unique relationship that is a part of the order or nature of things or whether it is merely a creation of civil society. Putting this question in theological terms, the question would be whether marriage is something created by God (perhaps by nature if you’re an evolutionist) or by man. The answer to that question determines everything.
If God “made up” marriage, then we can no more redefine it than we can change the requirement that a sentence, in order to make sense and not be gibberish, has to have a subject and a verb.
Making the Definition of Marriage Gibberish
Had supporters of gibberish been in the courtroom asking that their “statements” be given the same “dignity” on a high school grammar examination as a complete sentence, no one would have asked the state why it had sanctioned its teachers to only recognize as a proper sentence only those strings of words having a subject and verb and had not accorded to a prepositional phrase the same.
We would all laugh if the Court declared a prepositional phrase the grammatical equivalent of a sentence. But when it comes to marriage, for some reason we think we can declare with a straight face something to be a marriage that is not a marriage.
No Answer to Why or Why Not?
So the whole problem with the oral arguments on Tuesday and the reason I was so uncomfortable with the questions and the answers is that, apart from God, there are no good answers to why marriage should be limited to man and a woman or to why marriage should not include three or four people.
That is not to say that the state can’t have a reason for limiting marriage to a man and a woman, but reasons can be and were given for why it should not be so limited. And there are reasons for why the state should not let three or more people marry, but then again, there are reasons for why it should not be limited to two people, if marriage truly is just, as same-sex “marriage” proponents suggest, a relationship of mutual love and respect, and shared responsibility.
Justice Kennedy rightly realizes that for some reason marriage as a relationship between a man and a woman has been recognized for millennia, and the reason, which he is unwilling to admit, is because marriage is what marriage is. And that is also why, as he noted, societies and cultures have recognized it even when it was not defined by law, per se.
The Haunting Question
Justice Kennedy is on the horns of a dilemma. He knows deep down that there is a truth about marriage, yet because he appears to be willing to deny God’s relevance to matters like this, he is trying to figure out if he can suppress that truth. You might even say he’s facing a crisis of faith, a question that hauntingly comes to every man from the very beginning—“Hath God said?”
It is my hope that Justice Kennedy will choose not to play God, and at least do what Pilate did with Jesus when torn between the people and the law—turn the question over to the people and let us decide the question for ourselves.
Sadly, until marriage supporters are willing to ask society the right first question, that may be the best we can hope for.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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