Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 8, 2006

The "Gender Complementarity" Objection to Same-Sex Unions

[Some MOJ-readers may be interested in this paper:]

"God's Created Order, Gender Complementarity, and the Federal
Marriage Amendment"
     Hofstra University Legal Studies Research Paper No. 06-33
          Brigham Young University Journal of Public Law, Vol.
          20, 2006

  Contact:  LINDA C. MCCLAIN
              Hofstra University - School of Law
    Email:  [email protected]
Auth-Page:  http://ssrn.com/author=233178

Full Text:  http://ssrn.com/abstract=950109

ABSTRACT: Does marriage, in the United States, need the
protection of an amendment to the federal constitution, which
would enshrine marriage as only the union of a man and a woman?
In answering "yes" to this question, sponsors and supporters of
the Federal Marriage Protection Amendment (FMPA), in the House of
Representatives and the Senate, have made various appeals to the
gender complementarity of marriage: (1) opposite-sex marriage is
part of "God's created order;" (2) procreation is the purpose of
marriage and has a tight nexus with optimal mother/father
parenting; (3) marriage bridges the "gender divide" by properly
ordering heterosexual desire and procreation; (4) marriage is
"about children," not adult love; and (5) traditional marriage
transmits values crucial to democracy. This article canvasses and
critically evaluates a sampling of these arguments, as they have
featured in Congressional hearings and debates about the FMPA. It
asks whether FMPA supporters can reconcile their stance about the
imperative of protecting the gender complementarity of
traditional marriage with the transformation of marriage brought
about by family law reforms and contemporary Equal Protection
jurisprudence. It argues that FMPA supporters continually and
uncritically appeal to gender complementarity as a justification
for preserving "traditional marriage" without addressing
marriage's evolution and whether marriage's definition should
continue to evolve.

Immaculate Conception

I confess that the Church's requirement that Catholics believe in the immaculate conception of Mary has been more of a source of befuddlement than inspiration for me.  (St. Bernard of Clairvaux ridiculed the belief as a "puerile absurdity.")  David Scott has an essay that tries to sort it out.  (HT: Open Book)

Response to Michael S's Invitation

Thanks, Michael, for your invitation.  I would simply be channeling some Catholic moral theologians whose work I find compelling.  I suggest you bypass me and go to the source!  Here's something of relevance I posted last September:

September 07, 2006

Catholic Theologians, the Catholic Church, and Homosexual Sexual Intimacy

THEOLOGICAL STUDIES--widely regarded as one of the premier theological periodicals in the United States--is published on behalf of the Jesuits in North America.  The editor, a Jesuit priest, is a member of the Department of Theology at Marquette University.

I want to call the attention of MOJ-readers to an article In the most recent issue--an article by two Catholic theologians:  Todd A. Salzman, who is Chair of the Department of Theology at Creighton University,  and Michael G. Lawler, Director of the Center for Marriage and Family Life at Creighton (and an emeritus professor in the theology department there).  Salzman and Lawler are co-authors of the forthcoming volume, Committed Love:  A Catholic Sexual Morality. The title and citation:  "Catholic Sexual Ethics:  Complementarity and the Truly Human," Theological Studies, 67 (2006), 625-52.

In their article, Salzman and Lawler explain why the Catholic Church's official position on the morality of homosexual sexual intimacy--the intimacy that Robby George dismissively calls "sodomy"--is deeply problematic.

In their conclusion, Salzman and Lawler write:

     This disputatio is an inquiry into the nature of the truly human sexual act.  We inquired, first, into the types of complementarity--heterogenital, reproductive, communion, affective, and parental--that the magisterium finds in a truly human sexual act and challenged the primacy granted to heterogenital complementarity as the sine qua non of such a truly human sexual act.  We suggested that the scientific evidence for the genetic, physiological, psychological, and social loading that creates either hetersexual or homosexual orientation as a part of a person's sexual constitution requires the addition of orientation complementarity to the equation.  This addition yielded our conclusion that an integrated orientation, personal, and biological complentarity is a more adequate sine qua non of truly human sexual acts. The truly human sexual act is doubly defined, therefore, as an act that is in accord with a person's sexual orientation and leads to the human flourishing of both partners.  If accepted, that definition will lead to the abandonment of the absolute norm prohibiting homosexual acts for persons with a homosexual orientation.  We repeat, the integration and expression of holistic complementarity, that is, the integration of orientation  with personal and biological complementarity determines whether or not a sexual act is moral or immoral.

Interested readers may also want to consult this article by another Catholic theologian, Stephen J. Pope, of the Department of Theology at Boston College:  "The Magisterium's Argument against 'Same-Sex' Marriages:  An Ethical Analysis and Critique," Theological Studies, 65 (2004), 530-65.

But what about scripture?  Those who wrote the Bible did not know that the earth revolves around the sun; they understandably presupposed with others of their time that the sun revolves around the earth. Nonetheless, we now know that their presupposition was mistaken. Similarly, those who wrote the Bible did not know what we are now learning about the determinants and character of homosexual orientation.  Let me quote, as I did in an earlier post, Galileo:

     The reason produced for condemning the opinion that th earth moves and the sun stands still is that in many places in the Bible one may read that the sun moves and the earth stands still.  Since the Bible cannot err, it follows as a necessary consequence that anyone takes an erroneous and heretical position who maintains that the sun is inherently motionless and the earth movable.

     With regard to this argument, I think in the first place that it is very pious to say and prudent to affirm that the holy Bible can never speak untruth--whenever its true meaning is understood.  But I believe that nobody will deny that it is often very abstruse, and may say things which are quite different from what its bare words signify.  Hence if in expounding the Bible one were always to confine oneself to the unadorned grammatical meaning, one might fall into error.  Not only contradictions and propositions far from true might thus be made to appear in the Bible, but even grave heresies and follies. 

Posted by Michael Perry on September  7, 2006 at 02:36 PM in Perry, Michael

Is the "moment" of conception a myth?

Univ. of Missouri law prof Philip Peters has posted his new paper, The Ambiguous Meaning of Human Conception.  (HT: Solum)  Here is the abstract:

Nearly all of the state and federal laws that treat embryos as persons contain a fundamental ambiguity. Contrary to common belief, there is no “moment” of conception. Instead, conception is a forty-eight hour process, during which the haploid genomes of the sperm and egg are gradually and precisely transformed into the functioning diploid genome of a new human embryo. During that two-day period, many common clinical and laboratories activities take place, including the culling of unsuitable embryos, the freezing of others, and the testing of embryos for genetic abnormalities. The legal status of these activities will turn on the point in the two-day process of conception that is chosen to trigger the life-begins-at-conception laws.

In this Article, I argue that laws triggered by conception should not take effect until the process of conceiving a new diploid embryo is complete. This occurs when the embryonic genome begins to function, roughly forty-eight hours after insemination, at the eight-cell stage. Prior to that, a new human life is being conceived, but has not yet been conceived. Although many people will find this a surprising conclusion, it is consistent with both the gradual nature of the transformation from gametes to embryo and with the goals that the authors of these laws sought to accomplish.

Sex and Catholic Legal Theory

Dear Michael P.:  In light of your two most recent posts - on Vice President Cheney's pregnant daughter and the movement within conservative judiasm to allow gay rabbis and unions - I encourage you to respond to my post "Sex and CLT" and Rob's post "Sex as Metatheory"?  As I mentioned my last post, I won't be able to respond for a while, but I would be interested to learn (and learn from) your reflections on these posts.  Thanks, Michael S.

The Republican Leadership, Same-Sex Unions, and Same-Sex Parenting

I had thought that the Republican leadership was opposed to same-sex unions and same-sex parenting, but now I see that the truth of the matter is much less clear and much more complicated.

New York Times
December 7, 2006

Cheney Pregnancy Stirs Debate on Gay Rights

By JIM RUTENBERG

WASHINGTON, Dec. 6 — Mary Cheney, a daughter of Vice President Dick Cheney, is expecting a baby with her partner of 15 years, Heather Poe, Mr. Cheney’s office said Wednesday.

Lea Anne McBride, a spokeswoman for Mr. Cheney, said the vice president and his wife, Lynne Cheney, were “looking forward with eager anticipation” to the baby’s birth, which is expected this spring and will bring to six the number of grandchildren the Cheneys have.

Mr. Cheney’s office would not provide details about how Mary Cheney became pregnant or by whom, and Ms. Cheney did not respond to messages left at her office and with her book publisher, Simon & Schuster.

The announcement of the pregnancy, which was first reported Wednesday by The Washington Post, and Ms. Cheney’s future status as a same-sex parent, prompted new debate over the administration’s opposition to gay marriage.

Family Pride, a gay rights group, noted that Ms. Cheney’s home state, Virginia, does not recognize same-sex civil unions or marriages.

“The news of Mary Cheney’s pregnancy exemplifies, once again, how the best interests of children are denied when lesbian, gay, bisexual and transgender citizens are treated unfairly and accorded different and unequal rights and responsibilities than other parents,” said the group’s executive director, Jennifer Chrisler.

Focus on the Family, a Christian group that has provided crucial political support to President Bush, released a statement that criticized child rearing by same-sex couples.

“Mary Cheney’s pregnancy raises the question of what’s best for children,” said Carrie Gordon Earll, the group’s director of issues analysis. “Just because it’s possible to conceive a child outside of the relationship of a married mother and father doesn’t mean it’s the best for the child.”

In 2004, Ms. Cheney worked on the Bush-Cheney re-election campaign, which won in part because of the so-called values voters who were drawn to the polls by ballot measures seeking to ban same-sex marriage.

Mr. Bush voiced strong approval that year for a constitutional amendment banning same-sex marriage, as he did this year, too. While gay rights groups called on Ms. Cheney to speak out against the proposed ban in 2004, she remained silent.

But Ms. Cheney wrote in a book published this year that she had considered resigning from the campaign after learning that Mr. Bush would endorse the proposed amendment. She said that she decided to stay because other important issues were at stake in the 2004 campaign.

As she promoted her book last spring, she said a federal ban on same-sex marriage would “write discrimination into the Constitution.” The vice president has hinted at disapproval of the proposed amendment. Asked where he stood on the issue during a campaign stop in Iowa in 2004, Mr. Cheney said, “Freedom means freedom for everyone.”

Dana Perino, a spokeswoman for Mr. Bush, said that Mr. Cheney had recently told the president about the pregnancy and that “the president said he was happy for him.” The Cheneys have five grandchildren by their other daughter, Elizabeth.

Mary Cheney, 37, is a vice president at AOL; Ms. Poe, a former park ranger, is 45.

Conservative Judaism and Same-Sex Unions

New York Times
December 7, 2006

Conservative Jews Allow Gay Rabbis and Unions

By LAURIE GOODSTEIN

The highest legal body in Conservative Judaism, the centrist movement in worldwide Jewry, voted yesterday to allow the ordination of gay rabbis and the celebration of same-sex commitment ceremonies.

The decision, which followed years of debate, was denounced by traditionalists in the movement as an indication that Conservative Judaism had abandoned its commitment to adhere to Jewish law, but celebrated by others as a long-awaited move toward full equality for gay people.

“We see this as a giant step forward,” said Sarah Freidson, a rabbinical student and co-chairwoman of Keshet, a student group at the Jewish Theological Seminary in New York that has been pushing for change.

[To read the whole piece, click here.]

Thursday, December 7, 2006

Sex as Metatheory

I agree with Michael S. that sex is a fundamental component of the human person, and thus a fundamental component of Catholic legal theory.  But I'm not sure I would go so far as to say that "[r]eflecting on the design of our bodies, our radical incompleteness, our intense desire (especially in males) to “use” another’s body to satisfy our own needs, and a whole host of related topics can offer insight into the origin and nature of community, the need for rules (and hence the need for promulgators of rules) to govern behaviour, the origins and nature of government and other governing structures (the corporation, etc.)."

Here's the tension, in my view:  Our need for law derives in significant part from our fallen condition.  We are selfish and we need rules to rein in our selfishness.  But the ideal for sexuality (the lifelong coupling of a man and woman) is not in response to our selfishness, but to our incompleteness.  Adam and Eve did not need the criminal law in the Garden of Eden, but they still needed each other.  Corporate management does not need to face punishment for self-dealing because they are incomplete, but because they are selfish.  An authentic view of sexuality allows us to transcend our selfishness; law accounts for our selfishness.  I totally agree that our understanding of the human person must include an articulation of human sexuality.  But I'm still not sure how far the articulation of human sexuality gets us toward a comprehensive theory of law.

Barack Obama and Religion, con't

[For an earlier post, click here.]

Sightings  12/7/06

Obama's Religious Challenge
-- Jerome Eric Copulsky

[
Jerome Eric Copulsky is Director and Assistant Professor of Judaic Studies at Virginia Tech.]

Last Friday, Barack Obama, the charismatic junior senator from Illinois and possible Democratic presidential hopeful, made news by speaking at an AIDS conference at Rick Warren's Saddleback Church, one of the flagships of contemporary evangelicalism.  To an audience of more than 2,000 evangelical leaders, the senator spoke movingly of his experiences in Africa, and set forth his vision for AIDS prevention and care in terms shaped decidedly by his Christian faith.  Although Obama received a standing ovation, his invitation to Saddleback was met with hostility by some conservative Christians, who rebuked Warren for sharing his pulpit with a supporter of abortion rights.

Senator Obama's appearance at one of the most "mega" of American megachurches and his emphasis on his own religious convictions is not surprising.  Back in June, in a spirited address to "Call to Renewal," a progressive faith-based movement, Obama testified to his own conversion and faith.  Complaining that for too long Democrats have been uncomfortable with the conversation about religion, "fearful of offending anyone" or "dismiss[ing] religion in the public square as inherently irrational or intolerant," Obama called for progressives "to acknowledge the power of faith in people's lives," and to "join a serious debate about how to reconcile faith with our modern, pluralistic democracy."

Some Democrats hailed Obama's eloquent display of his faith.  Others sharply criticized the senator for giving credence to Republican allegations that the Democrats are allergic to religion, or condemned him for pandering to the prejudices of the religious right, or claimed he was undermining the Democrats' commitment to secular governance.

Such praise and condemnation do not get to the heart of the matter.  The question is not whether religious motivations are considered licit in the public sphere.  The question is: How does one use religious arguments in the to-and-fro of democratic deliberation and policy formation?  And it is here that the senator powerfully illuminates the Democrats', and liberalism's, religion problem.

After recognizing the "crucial role" that the separation of church and state has played in defending American democracy and fostering the vitality of religious practice, Obama remarked, "Democracy demands that the religiously motivated translate their concerns into universal, rather than religion-specific, values.  It requires that their proposals be subject to argument, and amenable to reason ....  Politics depends on our ability to persuade each other of common aims based on a common reality."

Obama rehearses a classic modern liberal stratagem to grapple with the persistence of competing "comprehensive theories" or conceptions of "the good": All preferences must be "translated" into a universal, rational idiom if they are to compete in the public square.  The invitation to take part in political life is extended to "the religiously motivated," so long as they are willing and able to explain their particular views in terms accessible to those who don't share their revelation or insight.  They may not have to "leave their religion at the door," but they will have to bring a translator along with them.

This sort of translation, however, is no easy feat.  If one maintains that his religion is universal, he may not see how his values are to be regarded as merely "religion-specific."  How do you translate into secular terms religious truths that are not accessible to unassisted or unreformed human reason?  If faith has the transformative effect that Obama and others claim that it does, wouldn't some reasons be opaque to those whose hearts have not yet been turned?  Who determines the "common reality" that we all share?  Indeed, the very notion of a "religiously neutral" common reality is subject to serious contention.

While Obama rightly stresses the political virtue of compromise, appealing to a shared rationality and the necessity of compromises may alleviate, but will not solve, the problems that religion raises for politics.  Indeed, Obama's speech exposes the fundamental tension between certain kinds of religious faith and a serious commitment to the untidy practice and inevitable compromises of political life, particularly in an increasingly pluralistic, liberal democracy.

Yet, Obama helps us remember that the distinction that we need to be aware of is not between religious and secular Americans, but between those who believe that political life will require certain concessions and those who have contempt for Enlightenment principles such as religious liberty upon which this nation is founded, who see democratic procedures as only the means by which to impress their vision of the common good on the rest of the country.  This is a distinction between different kinds of religious attitudes, which does not conform to a simple distinction between religious conservatives and religious liberals.

Democrats don't need to get more religion; they need to learn more about it.  They can present their positions in moral terms, without feeling compelled to cite chapter and verse or make appeals to what Jesus would do.  They should know that being more comfortable employing religious language or making public confessions of faith will not persuade those who are already otherwise convinced.  And they should recognize that, despite their best efforts, they will still have to contend with their less scrupulous opponents denouncing them as "godless."

Obama, whose appearance before the evangelicals received both applause and fierce condemnations, already knows this.

References:
Senator Obama's "Call to Renewal" keynote address can be found here:
http://obama.senate.gov/speech/060628-call_to_renewal_keynote_address/index.html.
His remarks at the 2006 Global Summit on AIDS and the Church at the Saddleback Church Campus can be found here: http://obama.senate.gov/speech/061201-race_against_time_-_world_aids_day_speech/index.html.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Wednesday, December 6, 2006

Helping Stop Genocide in Darfur During This Christmas Season

In the past, I've blogged about the situation in the Darfur region of the Sudan, mentioning the ongoing work of the Catholic Workers movement to draw attention to the genocide occurring there. About ten days ago, Susan Stabile posted a message from a Mirror of Justice reader wondering what we, as ordinary Americans, can do and expressing the frustration that many of us feel in seeking an effective response. The following message should provide some hope and a means of providing concrete assistance to those who are suffering and to restoration of security in the region.

Professor Ellen Kennedy of the University of St. Thomas in St. Paul sent this message to faculty colleagues, with the heading: "Genocide Intervention Network - A Christmas Story":

Colleagues,

I want to tell you a Christmas story that will warm your hearts – and perhaps motivate you to make a difference in the world.

As you probably know, we have a campus chapter of the Genocide Intervention Network. GI-Net is an organization that has over 600 chapters throughout the country and an international presence; its mission is to educate about genocide, advocate with elected officials and other leaders for a non-violent resolution to conflict, and raise funds to protect those whose lives are at risk. At present the focus is the genocide occurring in Darfur, Sudan. Over 400,000 people have been killed and more than 2.5 million people have been displaced from their homes and villages.

The Student Advisory Board of our chapter has launched a “Ten for Ten” campaign this holiday season. Instead of receiving gifts this year, they are all asking ten of their family and friends to donate $10 each to the national GI-Net office. The national office has raised over $250,000 to assist the limited African Union peacekeeping troops with non-weapons-based support in Darfur. And of those ten, our students also hope that at least one will ‘pay it forward’ to ask another ten to give their support.

These students have made a commitment to lend a hand, to raise their voices, and to take a stand for the people in Darfur who are dying at a rate of more than five hundred every single day. These students are ordinary Midwest kids – but they’ve realized that the words ‘never again,’ uttered after the Holocaust, have rung hollow. They are committed to making ‘never again’ mean ‘never.’

Will you join them in this effort? Your tax-deductible contribution to the Genocide Intervention Network (a registered 501-C3; tax ID number 20-2278405) will help African Union troops to protect women and children against gender-based violence in Darfur.

Please participate with our students in the spirit of giving with the most precious of gifts – the gift of safety. You can send your donation to the Genocide Intervention Network, 1333 H Street NW, Washington, DC 20005, and note that it’s part of the “Ten for Ten” campaign. If it’s more convenient, you can send it to me at Mail MCH 316 at UST and I’ll send it on to Washington.

With best wishes for the holidays,
Ellen

For more information about the national organization, please see
www.genocideintervention.net