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On perhaps no cultural issue has the Right more clearly waved the white flag than it has on the issue of marriage. The National Organization for Marriage, which for years existed as the leading organization pushing back against the homosexual rights movement’s ahistorical revisionism and redefining of marriage, is now hard-pressed to galvanize a grassroots movement in favor of restoring conjugal marriage. Never mind that the ludicrous 2015 U.S. Supreme Court case that bastardized the Fourteenth Amendment in an astonishing black-robed power grab to constitutionalize same-sex nuptials and impose it upon a divided citizenry, Obergefell v. Hodges, had all the jurisprudential heft of the infamous Dred Scott diktat. Rare is the social conservative, these days, who seems enthused about trying to chip away at Obergefell‘s (il)legal foundation; most pro-conjugal marriage social conservatives resist the temptation to go on the offensive and are instead content to defensively crouch and demand values-neutral pluralistic religious liberty “tolerance.”
But such a defensive posture is unwarranted and, indeed, ultimately unjustifiable. Much like our efforts to protect the unborn from Roe v. Wade‘s legal regime of state-sanctioned genocide of an entire sub-class of human beings, marriage as a socially defined one-man/one-woman institution is worth fighting for in both the cultural and legal arena. America was quite conscientiously founded under the natural law tradition, and there is no more natural biological fact than the reality that every child born in this Earth is born to one (non-trans) mother and one (non-trans) father. And to the extent there is nascent social science data on the question of outcomes for the children of heterosexual and homosexual parents, that data is, at best for the Left, a mixed bag. We will know much more in future decades, as our grand and godless social experiment in marriage revisionism plays out in real-time, but there is already no shortage of warning signs for the revisionists.
The phenomenon of the broader Right’s capitulation on the marriage issue has been exacerbated by our debilitating crisis of judicial supremacy — the erroneous and anti-constitutional notion that the idiosyncratic ukases of our unelected black-robed masters in what Alexander Hamilton called the “least dangerous” branch ought to be treated not merely as ad hoc legal judgments, but as broader political rulings that “bind” the populace. The danger of judicial supremacy cannot be exaggerated: How are We the People to remain constantly vigilant against tyranny if that tyranny comes not in the form of legislators and executives who can be held accountable at the ballot box, but in the form of judicial usurpers who accomplish with the stroke of a pen what the cultural Left could not otherwise accomplish over decades?
The Right cannot unilaterally disarm in the culture war. The Left makes overt moral argumentation to advance a compelling narrative as to their (dystopian, pagan, and positively harrowing) vision of the good life. Why on Earth are we on the Right not doing the same, as New York Post Op-Ed Editor Sohrab Ahmari asked earlier this year of National Review Senior Writer David French? In what world does retreating to pleas for Anglo-American common law procedural niceties suffice, given the gravity of the cultural task at hand and the totalitarian nature of the contemporary Left?
It seems that longtime Straussian jurisprudential luminary Hadley Arkes agrees, based on a recent disquisition published at the indispensable American Mind online journal. Arkes urges conservatives to aggressively wage the culture war on at least four issues: Marriage, sexual orientation, transgenderism, and abortion. But it is Arkes’ advice on marriage that is most provocative — and which deserves the most careful attention for congressional lawmakers due to its potential to publicly clarify the obvious slippery slope upon which the marriage revisionists have so unabashedly embarked (emphasis added):
What I have in mind is the proposal for a Defense of Monogamous Marriage Act (DOMMA). That would simply enact another version of the Defense of Marriage Act, but with these components: That neither the federal government nor the states would be obliged to recognize as a “marriage” a union of more than two people. That proposal made its way to the staff of Paul Ryan when he was Speaker in the last Congress, and I was told that the Speaker would make a decision on bringing the matter to the floor if a sponsor could be found for the bill.
For the leadership the prospect was intriguing, for they couldn’t guess how Democrats would vote on such a bill. On the one hand, the Democrats don’t want to come out explicitly for polygamy, but on the other they are reflexively opposed to virtually any measure that would cast a moral judgment on the way that people act out their sexuality. As for the courts, the Supreme Court could not strike down this bill without virtually licensing polygamy. In the meantime, we would establish — in the face of Justice Kennedy’s dubiety — that Congress does indeed have the authority legislate on this subject of marriage.
There were two conservative congressmen who were willing to consider acting as sponsors of the bill, but both men had other troubles of their own and they didn’t survive their primaries. Still, the proposal is as sound and as provocative as it ever was in testing the constitutional argument. What remains is finding the conservative congressman with the nerve to introduce it.
I have discussed over the years the marriage debate with many, many people — likely more supporters than opponents of same-sex marriage. I have never once heard an intellectually defensible rationale articulated as to why, once the biological and conjugal element is eliminated from the marriage definition, the definition must be capped at solely two individuals. After all, the only reason we God arrived at two in the first place is because it takes precisely one man and one woman to procreate.
The Defense of Monogamous Marriage Act (DOMMA) is a brilliant piece of legislative mischief that would force Democrats to directly confront the societal hell that they have begun the process of unleashing. And it will force Democrats to ponder the reality that perhaps not all sexual desires and proclivities ought to be treated equally under the law. Perhaps love does not necessarily always “equal” love. The DOMMA would also nudge back against the judicial supremacist paradigm and represent a salutary attempt by Congress to check the judiciary. After all, as James Madison told us in The Federalist No. 51, our constitutional structure revolves around the notion that “[a]mbition must be made to counteract ambition.”
All we need is a few culture-warring congressmen to take the legislative initiative. Any takers?