Rob asks: "What would Murray have said about today's debate over same-sex marriage?" I should say, first, that I do not know the answer. Still, pressing on . . .
Rob writes: "One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path. But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?"
I've been thinking a bit, and talking with others a bit, about this, and I don't think the religious-freedom analogy really works. Murray's understanding of religious freedom was tied, after all, to what he regarded as truth-claims about human persons, i.e., that they have "dignity" and that coercion in religious matters is inconsistent with that dignity. Murray's "no coercion" rule certainly does not -- in his view, anyway -- make religious truth any less "uniquely authentic", even if it does mean, in all likelihood, that not all will seek, find, or accept it. And, I'm not sure Murray would think -- to the extent we care what he would think -- that his no-coercion / human dignity argument for religious freedom translates so smoothly to an argument for (what arguably would be a striking) redefinition of marriage, even "civil" or state-recognized marriage.
Rob continues: "In both contexts, [i.e., religious-freedom and marriage,] the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well. If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?" I could be wrong, but I would be surprised if Murray meant by "public morality" "those moral standards that happen, at present, to be accepted by a majority of the people," rather than [true?] morality as it relates to public, and not purely private, matters. And, I doubt Murray would have regarded marriage as a private matter.
Now, it does seem to me that there could be strong, Murray-type arguments (as opposed, perhaps, to constitutional arguments) against criminal statutes of the kind invalidated in the Lawrence case.
Rick
Reflecting the modern multiculturalist's tendency to equate religious difference with divisiveness, church leaders in England have created a stir by suggesting that Muslim schools might be inappropriate for Christian children. (HT: Open Book)
Rob
Over the past several days, a number of Senators have publicly released their respective positions on Judge Roberts’ nomination to be the next Chief Justice of the United States. A number of those indicating that they will vote against the nomination have stated that while the Judge is qualified, even well qualified, they do not know enough about his views or positions on vital issues. Several of these Senators who have concluded that they will vote against the nomination, including three on the Senate Judiciary Committee, are Catholic. Since MOJ is a forum for developing Catholic legal theory, I would like to offer a brief comment on the possible contribution Catholic legal theory can make to the present debate in the Senate on Judge Roberts’ nomination.
It appears that most Senators who have spoken so far have concluded that the Judge is qualified to sit on the Supreme Court and to be the Chief Justice. However, their “concerns” (a word that has crept up in various discussions about Senators’ positions) really seem to be that they do know a good deal about the Judge and his positions, but they disagree with them. I believe that any judicial candidate, including Judge Roberts, must be cautious in giving too much detail about one’s views on matters that are likely to come before the Court in the future. Being a judicial officer requires the person holding the office to have an “open mind” so that he or she can fairly hear and understand the positions of the parties and their views of the applicable law. The judge must then consider these views objectively to search for the truth about the case. This has a parallel with the Catholic notion of the search for truth as the quest for the “transcendent and objective” and the moral order that follows. In short, this means considering the case beyond personal knowledge and prejudices. The judge has to consider what each party has presented and argued. Judge Roberts appears to have demonstrated that he will pursue this approach, and, in fact, that is what he has done as a Circuit Court of Appeals Judge.
Interestingly, much of this Catholic contribution to the judicial process can apply to the work of the Senator. For example, let’s take the case of a Senator who is known to be a strong supporter of civil rights legislation. A colleague in the Senate intends to submit a bill addressing civil rights issues. Will the first Senator automatically be a co-sponsor of the colleague’s proposal? In short, can this Senator and the Senator’s constituents immediately say they know what the Senator’s position is? Most likely not. For prudential, political, and other considerations including objectivity, the Senator would likely have to say that the bill merits serious study. The Senator would probably want to know what other colleagues think after they have studied the text. Moreover, there would inevitably be some discussion about whether friendly amendments could be made to the bill to reflect other views or would a completely different bill have to be submitted to get those views into the discussion. This, too, is an exercise in objectivity and looking beyond one’s personal knowledge and prejudices.
If it works for Senators, might it also work for judges? RJA sj
Monday, September 26, 2005
This opinion piece in the online version of the Wall Street Journal describes the plans of a group called "Christian Exodus," which seeks to move to South Carolina and "establish a theocratic government there. Only five families have gone so far, though leaders say that their 950 members plan to move to upstate regions of South Carolina, where they would take over county and state offices and ultimately force a constitutional crisis." The author, Philip Jenkins, writes:
However quixotic the Exodus movement sounds, it does remind us of some powerful strands within the Christian and the American traditions. Far from being a product of the contemporary "Religious Right," the idea that believers should cut all ties with an irrevocably corrupt secular world does have excellent credentials. Arguably such separatism is far closer to the spirit of ancient Christianity than are the widespread contemporary assumptions that religion consists chiefly in being good to each other and that God wants nothing more than for us to achieve individual happiness. . . .
Often, of course, such ventures ended in failure or ruin or, at worst, in authoritarianism and violence. The precedents for a contemporary exodus are anything but promising. But looking at these movements pushes us to ask: Which is the greater error, the worse misunderstanding of a religion--to believe that it teaches radical separation from a failed world or that it calls for immersion in that world and a thorough acceptance of its ways.
A more pedestrian point: What, exactly, would be the laws of the "theocratic" state envisioned by the "Christian Exodus" movement? How would they differ, specifically, from the laws that exist in South Carolina right now? (I am not suggesting, by the way, that South Carolina is a "theocracy", or anything like that. I just wonder what exactly it is that the CE folks are after).
Rick
