There once was a day when the Court seemed capable of making such moral judgments [as the Court denied it could do in Lawrence v. Texas]. In upholding a congressional ban on polygamy, for example, it described the family as "springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement." Alas, the current Court, or at least a majority of the Court, seems unwilling to entertain any moral arguments. Indeed, inLawrence v. Texas, the Court held that the moral convictions of the people were not even a legitimate basis for governmental action, and the odds that it would reverse course in the current cases are extremely slim. But the Court need not make a moral judgment to resolve these cases. Rather, it need simply recognize that, as a matter of basic biology, same-sex and opposite-sex couples are simply not "similarly situated" with respect to their procreative abilities. As long as procreation and the rearing of the children that result from the unique biological complementarity of the sexes remains one of the core purposes of marriage, it is no violation of equal protection to treat differently those relationships that are, in their nature, different with respect to that fundamental purpose. The revival of the lost art of moral reasoning in our Courts must wait for a more substantial re-founding of our jurisprudence—for now, the Court can and should take this modest first step.
Very well said.
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