On June 26, 2013, the U.S. Supreme Court struck down the section of the Defense of Marriage Act that declared that, for the purposes of federal benefits and the federal tax code, marriage is defined as the legal union of one man and one woman. DOMA had been passed by a Republican Congress in 1996 and signed by President Bill Clinton in response to growing concerns over the possibility that some states might extend the definition of marriage to include unions of two partners of the same sex. In the intervening 17 years, through court decisions, legislative action, or ballot proposals, 14 states have done just that.
Over the same period, the United States has undergone an unprecedented cultural shift, and public-opinion polls now indicate that a plurality or even a majority of Americans support "gay marriage." While the Supreme Court is supposed to interpret legislation in light of the U.S. Constitution, it has for decades now functioned more as an agent of social change, reflecting trends in the broader culture rather than safeguarding the American constitutional tradition. And so the DOMA decision came as no surprise to anyone who was paying attention.
While the Court's decision does not actually redefine marriage to include unions of partners of the same sex, it does compel the federal government to accept, for the purposes of federal benefits and the federal tax code, state definitions of marriage that include homosexual unions. And given that President Obama, in May 2012, endorsed "gay marriage" (in a reversal of his position in his 2008 election campaign), the writing is on the wall. More states will redefine marriage to include homosexual unions, and the federal government will endorse and ratify such actions.
Missing, however, from both the Supreme Court's decision on DOMA and from the public debate over "gay marriage" is any discussion of what should be the central question: Does the state have the authority to redefine an institution that extends back to the sixth day of creation, in the Garden of Eden—an institution, in other words, that not only predates the modern state, but predates government itself? Or, to put it another way, if the state says that the definition of marriage includes unions other than those between one man and one woman, does that make it so?
From the standpoint of the Catholic Church, the answer is a resounding "No."
Pope Leo XIII, in his 1880 encyclical Arcanum, made this point abundantly clear. The definition of marriage was written into nature itself by God at the creation of the human race, and it was confirmed and renewed by Christ Himself when He "raised marriage to the dignity of a sacrament." The state can recognize the reality of marriage and act to strengthen it or to undermine it, but it can no more change that reality by legislation than it can change the law of gravity.
Because marriage predates the state, the marriage contract predates civil law. It is a contract between the spouses (and, more broadly, between their families). The state is free to recognize that contract, and even to give it special status in civil law; but doing so does not give the state the authority to declare that something which is not marriage (the union of two men or of two women) must be accorded the title of marriage, any more than the state has the authority to declare that up is down, and left is right.
Furthermore, as Pope Leo points out, any authority that the state has over the marriage of Christians is conditional, and it depends upon the willingness of the Church to allow the state to regulate those marriages. God ordained the institution of marriage; Christ confirmed it; and "Christ, therefore, having renewed marriage to such and so great excellence, commended and entrusted all the discipline bearing upon these matters to His Church. The Church, always and everywhere, has so used her power with reference to the marriages of Christians that men have seen clearly how it belongs to her as of native right; not being made hers by any human grant, but given divinely to her by the will of her Founder" (emphasis mine).
Yet the state is claiming the Church's authority for itself, and a significant number of Americans, including a significant number of self-identified Catholics, are going along with the state's redefinition of reality. And that is why, as I argued in a piece on CrisisMagazine.com ("Where Do We Go From Here?"), the Church must reassert Her moral authority over marriage by divorcing true marriage entirely from the state.
All it would take is for the Catholic Church in the United States to say that those who wish to be married in the Church will no longer be required (as they are today) to seek a license from the state before the Church will marry them. Those who want to obtain such a license (for tax purposes and other benefits) would be free to do so, but the Church would no longer regard that license as having anything at all to do with the reality of marriage. By that simple act, the Church would make it clear to all that, in the eyes of the Church, the state has no authority whatsoever to redefine marriage.
What do you think? Should the American Catholic bishops take this—admittedly drastic, but in my opinion necessary—step? Read my whole argument over at CrisisMagazine.com, and then come back here and offer your thoughts in the comments.