Pope Francis’s Light, Alito’s Footnote 7

Dear Friend,

Can it really be just a coincidence that Pope Francis releases his first “encyclical” reiterating the Church’s timeless teaching about marriage the same week Justice Anthony Kennedy released what I called his “fatwa” against opponents of gay marriage?

I called Justice Kennedy’s opinion a fatwa for two reasons: first, he refused to engage any rational argument; he simply dismissed our whole marriage tradition out of hand, without discussion. Second, he declared half the American people simply “enemies of the human race,” as Justice Scalia put it, for our commitment to the idea that marriage is the union of husband and wife.  He made a Constitutional religion out of gay marriage, whole cloth, without any textual support at all.

Make no mistake this Supreme Court decision striking down DOMA is the Roe v. Wade of marriage—just with a slight delay in the full implementation. The question now is: will we submit, or will we retain in our own eyes our inherent dignity as freeborn citizens of a great nation? Here’s how I put it in interview with Kathryn Jean Lopez on NRO:

“Will we concede the legitimacy of Kennedy’s fatwa against us, or will we respond with a sustained opposition — legal, political, cultural, and of the moral imagination? I don’t believe in inevitability, I believe in human freedom and our power to shape the future. So it depends on us. But certainly I believe, as I wrote in the *Los Angeles Times* <http://e.americanprinciples email.org/l.jsp?d=1376.83525.1196.0rmRw-dQ.A>, that the questions raised by marriage — deeply rooted in our conception of who we are as men and women, the meaning of sexuality and gender — cannot be put to rest by the power of five lawyers on however high a court.

The cultural struggle I predicted in “Banned in Boston”http://e.americanprinciples-email.org/l.jsp?d=1376.83524.1196.0rmRw-dQ.A is clearly playing out. Will they succeed in persuading us to accept the second-class status Kennedy lays out for us? Not me, what about you?”(For more of my interviews, comments, op eds in response to the Supreme Court see the endnotes)

But the two best responses to the Supreme Court decision comes from two quite different sources: Pope Francis’s letter Lumen Fidei <http://e.americanprinciples-email.org/l.jsp?d=1376.83520.1196.0rmRw-dQ.A> And Justice Samuel Alito’s dissent.   If you haven’t yet read Justice Alito’s dissent do so.  It is the clearest and sanest voice on the Court on this issue.

There is much I could say in praise of Alito, but let me start by praising two footnotes. Alito’s Footnote 6  documents that both pro-gay marriage and anti-gay marriage voices predict gay marriage will change the institution of marriage; it’s the first time my work has been cited in a Supreme Court decision, so forgive me for quoting it:

“Among those holding that position, some deplore and some applaud this predicted development. Compare, e.g., . . .Gallagher, (How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman, 2 U. St. Thomas L. J. 33, 58 (2005) (“If the idea of marriage really does matter—if society really does need a social institution that manages opposite-sex attractions in the interests of children and society—then taking an already weakened social institution, subjecting it to radical new redefinitions, and hoping that there are no consequences is probably neither a wise nor a compassionate idea”), with Brownworth, Something Borrowed, Something Blue: Is Marriage Right for Queers? in I Do/I Don’t: Queers on Marriage 53, 58–59 (G. Wharton & I. Phillips eds. 2004) (Former President George W. “Bush is correct . . . when he states that allowing same-sex couples to marry will weaken the institution of marriage. It most certainly will do so, and that will make marriage a far better concept than it previously has been”)”

But the bulk of Alito’s dissent relies rather more on Prof. Robby George, Sherif Gergis, and Ryan Anderson’s book “What is Marriage?” Alito gets it. He points out that the Court is really being offered not “new participants” in marriage, but two radically different visions of what marriage is: “While modern cultural changes have weakened the link between marriage and procreation in the popular mind, there is no doubt that, throughout human history and across many cultures, marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship.

The other, newer view is what I will call the “consent based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment— marked by strong emotional attachment and sexual attraction—between two persons. At least as it applies to heterosexual couples, this view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Proponents of same-sex marriage argue that because gender differentiation is not relevant to this vision, the exclusion of same-sex couples from the institution of marriage is rank discrimination.”

Our beloved Constitution, Justice Alito flatly points out, “does not codify either of these views of marriage . . . The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. Yet, Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question  that philosophers, historians, social scientists, and theologians are better qualified to explore.”

Judicial arrogance was on maximum display during the show trial of Prop 8 conducted by Judge Vaughn Walker as Justice Alito points out in an incredible takeout of Judge Walker in Footnote 7: “The degree to which this question is intractable to typical judicial processes of decision-making was highlighted by the trial in Hollingsworth v. Perry, ante, p. ___. In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as . . .what marriage is, id., at 961 (finding of fact no. 34) (“Marriage is the state recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to form a household based on their own feelings about one another and to join in an economic partnership and support one another and any dependents”), and the effect legalizing same-sex marriage would have on opposite-sex marriage, id., at 972 (finding of fact no. 55) (“Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”). At times, the trial reached the heights of parody, as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom. See 13 Tr. in No. C 09–2292 VRW (ND Cal.), pp. 3038–3039.

And, if this spectacle were not enough, some professors of constitutional law have argued that we are bound to accept the trial judge’s findings—including those on major philosophical questions and predictions about the future—unless they are “clearly erroneous.” . . . . Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.” An arrogant legal culture is what we now face on the part of the Supreme Court’s slim 5-4 majority.  That judicial arrogance we know.  What is yet to be determined is how will we respond?

There are too many of us who support the classic understanding of marriage to stigmatize unless we engage is self-censorship, self-stigmatization– unless we accept Kennedy’s dictum as not only the temporary law of the land, but as the new moral law. Will we accept the second-class citizenship laid out for us in Justice Kennedy’s world?

Many of us this week find a new hope in Pope Francis’s first encyclical. It is primarily a profound meditation on what Pope Francis called “the crisis of truth in our age;” how we’ve come to see faith not as a light that illuminates the human reality, but as an “illusory light, preventing mankind from boldly setting out in quest of knowledge. . . . faith came to be associated with darkness.”

Thrown back on itself the light of reason dimmed. “Slowly but surely, however, it would become evident that the light of autonomous reason is not enough to illumine the future.”

“There is an urgent need, then, to see once again that faith is a light, for once the flame of faith dies out, all other lights begin to dim. . . . Today more than ever, we need to be reminded of this bond between faith and truth, given the crisis of truth in our age,” Pope Francis writes.

Between faith and truth yes, but also between truth and love: Love, he writes, “requires truth. Only to the extent that love is grounded in truth can it endure over time, can it transcend the passing moment and be sufficiently solid to sustain a shared journey. If love is not tied to truth, it falls prey to fickle emotions and cannot stand the test of time . . .Without truth, love is incapable of establishing a firm bond; it cannot liberate our isolated ego or redeem it from the fleeting moment in order to create life and bear fruit.”

Yes, “If love needs truth, truth also needs love. Love and truth are inseparable. Without love, truth becomes cold, impersonal and oppressive for people’s day-to-day lives. The truth we seek, the truth that gives meaning to our journey through life, enlightens us whenever we are touched by love.

One who loves realizes that love is an experience of truth, that it opens our eyes to see reality in a new way, in union with the beloved.”

Only after this extended mediation, near the conclusion does Pope Francis turn to marriage as the emblem of love and truth, as part of the crisis of our time: “I think first and foremost of the stable union of man and woman in marriage. This union is born of their love, as a sign and presence of God’s own love, and of the acknowledgment and acceptance of the goodness of sexual differentiation, whereby spouses can become one flesh (cf. *Gen *2:24) and are enabled to give birth to a new life, a manifestation of the Creator’s goodness, wisdom and loving plan. Grounded in this love, a man and a woman can promise each other mutual love in a gesture which engages their entire lives and mirrors many features of faith. Promising love for ever is possible when we perceive a plan bigger than our own ideas and undertakings, a plan which sustains us and enables us to surrender our future entirely to the one we love. Faith also helps us to grasp in all its depth and richness the begetting of children, as a sign of the love of the Creator who entrusts us with the mystery of a new person” *Pope Francis concludes, “*In union with faith and charity, hope propels us towards a sure future, set against a different horizon with regard to the illusory enticements of the idols of this world yet granting new momentum and strength to our daily lives. Let us refuse to be robbed of hope.”

Things are going to get tougher from here on out, Justice Kennedy has made that clear in his fine judicial arrogant contempt for us and our views. Let us acknowledge that hard truth, and roll up our sleeves and take on the challenge of passing on a marriage culture to the next generation anyway.

Let us refused to be robbed of hope.

Until next week, my friend.


(Maggie Gallagher, American Principles Project)


P.S.  Your comments as always on this letter or on the struggles ahead welcomed at



EndNotes: Encyclical Letter “Lumen Fidei<http://e.americanprinciplesemail.org/l.jsp?d=1376.83523.1196.0rmRw-dQ.A>”,

June 29, 2013

Windsor v. United States, Justice Samuel Alito Dissenthttp://e.americanprinciples-email.org/l.jsp?d=1376.83519.1196.0rmRw-dQ.A

The Dennis Miller show<http://e.americanprinciples-email.org/l.jsp?d=1376.83518.1196.0rmRw-dQ.A>,


July 1, 2013

“Moral Issues Can’t Simply Be Ruled Invalid” L.A.Times<http://e.americanprinciplesemail.org/l.jsp?d=1376.83517.1196.0rmRw-dQ.A>,

June 27, 2103

“Reaction to Court Ruling on Marriage Provision” Quincy Herald-Whig<http://e.americanprinciples-email.org/l.jsp?d=1376.83514.1196.0rmRw-dQ.A>,

June 26, 2013

(*“At the heart of the gay marriage argument is an untruth: unions of 2 men or women are not the same as unions of husband and wife. The law cannot make it so, it can only require us to paint pretty pictures to cover up deep truths embedded in human nature.”*)

Here is the statement I made that was picked up by USA Today<http://e.americanprinciples-email.org/l.jsp?d=1376.83515.1196.0rmRw-dQ.A>,

Associated Press<http://e.americanprinciples-email.org/l.jsp?d=1376.83516.1196.0rmRw-dQ.A> and many others: *In a written statement, Gallagher said Justice Anthony Kennedy’s majority

opinion “unfairly and illegitimately makes ‘custom’ and ‘tradition’ a sufficient reason to overturn the democratic branch of government — a standard which has never been applied when Congress passes new laws that affirm new leftist values.”*

Interview “The Roe of Marriage” National Review Online<http://e.americanprinciples-email.org/l.jsp?d=1376.83513.1196.0rmRw-dQ.A>,

July 3, 2013

“Family Advocates Say Marriage Ruling Ignores Children” National Catholic Register<http://e.americanprinciples-email.org/l.jsp?d=1376.83512.1196.0rmRw-dQ.A>,

June 27, 2013







Facebook Comments


Leave a Reply

Your email address will not be published. Required fields are marked *