We were alerted last week by several redoubtable alumni of our James Wilson Fellowship to a fine concurring opinion by Chief Justice James “Jimmy” Blacklock in the Benavides case, on marriage and guardianship in Texas. The Texas Supreme Court unanimously voided a divorce that was filed by the daughters of an elderly husband. The justices noted that the lower courts did not make the finding that “the divorce would promote the ward’s well being and protect his best interests”—nor could they do so now that the husband has passed away. The concurring opinion by Justice Blacklock went beyond the narrow scope of recent Texas precedent. Blacklock chose to focus at this moment on the inescapable “moral” nature of marriage.
If marriage was solely a creation of the positive law, to be bent to any shape that suits the makers of those laws, then there is no special strain in permitting the daughter of an elderly person to authorize a divorce that her father couldn’t summon the resolution to order. But as Justice Blacklock observes:
A judge who thinks of marriage as a civil legal status created by and governed by the Family Code may not bat an eye at the notion that a guardian can seek divorce for an incompetent ward, just as a guardian may do many other important things for a ward. But a judge who thinks of marriage as a natural expression of the will of a man and a woman, which exists apart from and transcends our law’s codification of it, is far more likely to gravitate toward the traditional view, as did an unbroken line of judges of generations past.
Justice Blacklock recognized that courts were not in a position to judge the “spiritual benefits of marriage or divorce on behalf of an incompetent person.” But regardless of religion, the judge can recognize marriage “as a uniquely personal matter.” And so, as he argued, “the decision to begin or end a marriage must be made by the individual people involved in this most intimate of human relationships, not by third parties like guardians and judges.” Whether we are dealing with marriage or divorce, “moral judgments are being made, whether we acknowledge it or not—both by judges and by legislators.” There is a “moral” meaning of marriage, which may subsist quite apart from what the legislators are willing to say about marriage in the positive law.
It was so important for Justice Blacklock to make the move to cast the matter of marriage in moral terms. This is one of the trickiest matters to explain; it is hard to do well and he is one of only a few judges insisting that this is exactly what needs to be understood. As I say, this is one of the trickiest things to do, for the “moral” nature of marriage moves beyond the merely “personal” and “intimate,” and perhaps even beyond “volition,” for “volition” involves the manifesting of will, and even animals can manifest their choices. But all of that is still strikingly different from creatures who “have reasons” for what they do. In this case, having reasons for extending—and preserving their love over time.
When this question arose in my classes, my students were inclined to argue that erotic attractions and love were inescapably, subjective in nature. And so I used this try out this problem: “I married her for her exquisite complexion, and her blondness. She went so perfectly with the drapes in my apartment. But now I’m doing the whole apartment over in Art Deco and she just doesn’t go any longer.” That line used to elicit laugh, though of late it does not. What the laugh revealed was what was so trivializing in this view of marriage. The deepest love among human beings is to recognize what is deeply admirable in the character of that other person, who draws one’s attachment and love. To account for what is “admirable” or morally compelling is to be drawn to features of character that may not alter or atrophy with age. We recall those lines from Shakespeare about Cleopatra: that “age cannot wither her, nor custom stale her infinite variety.” To recognize what is enduringly admirable in one’s lover and spouse is to recognize what is distinctly moral about human love, the love that becomes the ground of a lifelong commitment in marriage.
But one other grave distraction comes with the notion that marriage, in being natural, is “pre-political,” that its character has no relation to law. What people filter out here is precisely Aristotle’s teaching in the opening passages in The Politics. The very mark of the “polis,” or the political order, is the presence of law. And as Aristotle shows, law arises distinctly from the nature of moral beings, beings who can give reasons over matters of right and wrong. It is no accident that we’ve had laws on marriage as long as we’ve had laws. There is surely no stronger mark of the commitment of marriage than the fact that the bride and groom have committed themselves to a union through the law, a commitment not to quit this relation merely for the sake of convenience. There is no harder or more serious mark of the commitment of marriage than the commitment of law. What is curiously not seen these days is what Aristotle saw: that law is as natural to human beings as the inclination to sex and marriage. Law, then, marks the fuller moral dimension of the love and marriage that can be had only by human beings.
The late Allan Bloom wrote that “the children who are the products of nature and real love lack something that can be provided only by law and its constraints.” He went on to say that:
it is only within the context of the law that a man can really imagine that the offspring from his loins can people the world. The law that gives names to families and tries to insure their integrity is a kind of unnatural force and endures only as long as does the regime of which it is a part.
My dear friend Gerry Bradley never ceases reviving and impressing me, as he just did as we were recording a recent podcast on the Skrmetti case. The legislature of Tennessee was overriding the (misinformed) judgments of parents who were being drawn to order up “gender-affirming care” for their children. The legislature was forbidding them from setting down that path. One had to recognize that there were such things as “parental rights,” but those rights took on their meaning only in a moral framework; and that framework alerts us to the wrongful things that may be done by some parents in neglecting and abusing their own children.
And yet some of our conservative friends and judges start off with dubiety about “parental rights.” They seem to fall in with my late friend Justice Scalia’s sense that this was one of the creations of “substantive due process.” It was brought forth in the 1920’s by the justices using the Due Process Clause in Meyer v. Nebraska and Pierce v. Society of Sisters. For Scalia, these were more suspect as rights because they were not in the text of the Constitution. Here I want to bring in the insights of the great jurist Thomas Cooley: that the Due Process Clause was that useful device for bringing in those implications of Natural Law that the framers did not think they had to set down in the text, for who could have imagined that they could have set down everything? And who could have imagined that we would ever have to affirm the right of parents to direct the education and medical treatment of their children? But the lawyers for Tennessee in the Skrmetti case were evidently on the side of Scalia: they wanted to insist that the rights of parents did not extend to the choice of distinct and new medical procedures.
But Gerry Bradley went beyond me here: He was not only beginning with the presumptive rights of parents; he wanted to fill out that moral account by recalling that it finds its place in the serious, moral understanding of marriage—that the child arises out of legal and enduring union, containing the immanent awareness of begetting as bound up with the possibilities and purposes of a real marriage. All of this was brought back to me again in reading Justice Blacklock’s opinion. And we hope that this type of jural mind might inspire other lawyers and judges to take the moral turn as well.
Editor’s Note: This essay has been slightly edited for readability since its initial publication.
