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, June 13, 2008

"Marriage" as pre-political?

By Michael Perry

In a recent post (here), Rob Vischer writes (quoting an article in the National Catholic Register):

"[H]ere's an insightful snippet about the the tendency of SSM to come with a more statist orientation than traditional marriage:  'Marriage between men and women is a pre-political, naturally emerging social institution. . . . .  By contrast, same-sex 'marriage' is completely a creation of the state."

In what I am about to say, by "marriage" I mean heterosexual marriage.

When one refers to a "right", one may be referring to a legal category (i.e., a legal right) or to a non-legal category (e.g., a moral right).  Similarly, when one refers to "marriage", one may be referring to a legal category or to a non-legal category.  "Marriage" as a legal category is obviously not pre-political, any more than "a right to ..." as a legal category is pre-political.  Whether the law should recognize and protect marriage, understood as a non-legal category--and thereby make marriage (also) a legal category--is a political decision.  Whether the law should recognize and protect same-sex unions, understood as a non-legal category--and thereby make same-sex unions (also) a legal category--is no more (and no less) a political decision than the decision whether to recognize and protect marriage, understood as a non-legal category.  So it isn't clear to me what Rob means when he says "the tendency of SSM to come with a more statist orientation than traditional marriage."

In any event, I take it that both Rob and I agree that one can simultaneously support the state's extending the benefit of law to same-sex unions and oppose the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.  There are three choices, not just two:

1.  No to the state's extending the benefit of law to same-sex unions.

2.  Yes to the state's extending the benefit of law to same-sex unions, and no to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.

3.  Yes to the state's extending the benefit of law to same-sex unions, and yes to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.

Two Problems with Robert Miller's Statement

By Michael Perry

Thanks to Rob Vischer for linking us (here) to Robert Miller's statement (here), which I just read.

The fundamental problem with Professor Miller's statement is that it does not support the constitutional amendment it purports to support.  The constitutional amendment the statement purports to support would prevent the Pennsylvania legislature from recognizing--by extending the benefit of law to--same-sex unions, should the legislature want to do so, whether now or ten years from now.  Yet, Miller's statement is an argument in support of the proposition that a political majority, and not the courts, should decide whether to recognize same-sex unions.  The constitutional amendment Miller's statement purports to support would prevent a political majority in Pennsylvania, should it want to do so, say, ten years from now, from recognizing same-sex unions.  The constitutional amendment Miller's statement actually supports is different from the one it purports to support.  The constitutional amendment the statement actually supports is one that prevents the courts from requiring Pennsylvania to recognize same-sex unions.  Such an amendment would state simply that the Pennsylvania constitution shall not be construed by any court to require Pennsylvania to recognize same-sex unions.

Here is another problem with Miller's statement:  In the course of his statement, Miller says that a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions "would for all practical purposes have roughly the same effect as . . . passing the amendment proposed in S.B. 1250."  That claim is plainly false.  The proposed amendment would prevent the Pennsylvania legislature from recognizing--should it want to do so, say, ten years from now--same-sex unions.  By contrast, a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions would not prevent the  Pennsylvania legislature, now or later, from recognizing same-sex unions should it want to do so.   

Should Catholic legal theory have more to say?

By Rob Vischer

This is the time of year when I confess to feeling some blawg envy.  Most blawgs are scrambling to offer immediate and insightful commentary on the Supreme Court decisions as they're handed down, as happened today with Boumediene v. Bush.  At MoJ, we tend not to have much to say, for the understandable reason that Catholic legal theory, whatever value it has in some contexts, is wildly indeterminate when it comes to analyzing judicial decisions that do not directly implicate natural law principles (e.g., abortion, marriage, parental rights).  In analyzing a case like Boumediene, we can (and should, in my view) point out that any meaningful conception of human dignity compels us to provide fair and effective procedures to detainees, but that might prompt the retort, "Yes, but you can't apply CST principles directly to court rulings as you might with legislative or executive actions."  There always seems to be a "limited role of the judiciary" defense available, and there does not seem to be a Catholic theory of constitutional interpretation (at least not yet).

So is this what keeps MoJ from weighing in as part of the annual Supreme Court festival of armchair judging?  Does Catholic legal theory have anything distinctive to say about Boumediene?

SSM and the expansive state

By Rob Vischer

Given my recent posts on SSM, readers have been providing me with some good reading material on the subject.  Here's an interesting essay from the National Catholic Register addressing the religious liberty fallout from the creation of SSM.  The essay is overstated in spots, but in general I agree that the threat to religious liberty is serious.  (Though I'm not sold on the notion that the threat to religious liberty is itself a persuasive reason to oppose SSM.)  In any event, here's an insightful snippet about the the tendency of SSM to come with a more statist orientation than traditional marriage:

Marriage between men and women is a pre-political, naturally emerging social institution. Men and women come together to create children, independently of any government. The duty of caring for those children exists even without a government or any political order. . . .

Because marriage is an organic part of civil society, it is robust enough to sustain itself, with minimal assistance from the state.  By contrast, same-sex “marriage” is completely a creation of the state.

Thursday, June 12, 2008

The case for a marriage amendment

By Rob Vischer

Villanova law prof Robert Miller has posted his testimony before the Pennsylvania Senate in support of a state constitutional amendment banning same-sex marriage.  It's well worth reading; here's an excerpt:

Based on my work in moral and legal philosophy, I have views on many of the considerations that these arguments [about same-sex marriage] raise. In general, I think the first [traditional] view is more likely to be correct. That, however, is not what is important here. What is important is that I recognize, and I think any honest person who looks at the arguments has to recognize, that the issues surrounding same-sex marriage are both very complicated and very deep. Any definitive view of the matter requires that a person, at least implicitly, take positions on any number of moral, philosophical, political, sociological, and empirical questions. As I consider these matters, my overwhelming impression is that the only thing obvious and certain about the question of same-sex marriage is that reasonable people can in perfect good faith disagree about this question.

But if resolving the issue of whether the state should recognize same-sex marriages or the equivalent requires us to make many difficult judgments in, among other areas, morality, philosophy, and politics, and if the question is one about which reasonable people can disagree in good faith, then it is clear to me that the issue is not one that should be resolved by courts. Courts are composed of judges, and judges are lawyers, and lawyers have expertise in the law. Legal knowledge and legal skills of the kind we convey in law schools will not resolve deep moral, philosophical, and political issues like those involved in the same-sex marriage dispute. The issues involved in same-sex marriage are much bigger than legal issues. They touch on profound questions such as the foundations of morality and meta-ethics, the relationship between the individual and the state, and the meaning of human sexuality. Lawyers, even judges, are no better than anyone else in forming opinions on such profound questions. In fact, on average, lawyers may even be worse than other people in dealing with such questions, for lawyers are often tempted to apply legal methods, at which they are adept, to philosophical problems, for which such methods are necessarily inadequate.

Texas Pride

By Michael Scaperlanda

Download waggoner_v1._Walmart 1 .pdf

"Fascism has come to Canada"

By Michael Scaperlanda

So says Fr. Alphonse de Valk in this editorial in Catholic Insight.  Here is an essay that explores the issue further:

Deafening Silence

By David Warren

The pen is reputed to be mightier than the sword -- and probably is, over the longer stretches of history. Over the shorter stretches, the sword is definitive; or, as that great Leftist sage, Mao Tse-Tung, expressed it: "Political power grows out of the barrel of a gun." With its monopoly on power, the State is equipped to suppress the truth. And yet the truth will not die, no matter how many people are punished for expressing it. They may die -- or be imprisoned, fined, compelled to publicly recant, or otherwise silenced and humiliated -- but the truth will survive.

Yes, this is a statement of my Catholic faith. But it is also a candid reflection on all of the history I have read: that political power passes away, that truths about God and man resurface, that human freedom is never fully extinguished. Much of the history we know may itself be false, owing to the disappearance of evidence over time; and justice in this world may not be availing. Yet in broad outline, a time always comes when we may review the past, freed from the shackles of the past. The chains of history always rust away.

This is a point worth recalling, as we head into a period in Canada when, owing to malice from an ideological camp, to cowardice on the part of our elected representatives, and to indifference on the part of the people, free speech and freedom of the press will disappear in Canada. Those who deviate from the officially-sanctioned lies of "political correctness" will emigrate, perhaps mostly to USA, or experience that peculiar form of internal exile -- of enforced silence -- that good men have shared in many times and places.

My own political education was provided in part by several impressive Czech exiles from Communism, with whom I fell in as a young man. What I learned from them is that under an ideological regime, the best men live in jail, or are assigned to work in tanneries and collieries, where other good men may be found. The worst men live in luxury and power.

For the rest of the story.

Wednesday, June 11, 2008

"You've been left behind."

By Rob Vischer

Christian compassion knows no limits: a Rapture-triggered email service for only $40 per year.

UPDATE: No, this service is not a joke.

Legal ethics forum

By Rob Vischer

Since Steve, Rick, Eduardo, and Susan have paved the way for MoJers to plant the flag elsewhere in the blogsophere, I feel comfortable giving a quick plug for the Legal Ethics Forum, a group blog that I've joined this week.  In addition to blogging about more traditional questions of professional responsibility, I'll be doing my best to expand the conversation to include a more deliberate focus on the moral dimension of professional identity. 

More on Marriage

By Michael Scaperlanda

Rob, thank you for sharing with us your struggle with what I will call “the marriage problem.”

Marriage – as a public institution – is in deep trouble, there is no doubt about it.  And, to be perfectly clear, the trouble has nothing to do with the debate over SSM.  Traditionally marriage has had one quantitative and three qualitative elements:  two people; man and woman; monogamous; and permanent.  Culturally and legally (no fault divorce), the idea of permanence has disappeared.  An article in the June 15, 2008 Our Sunday Visitor cites a statistic that over 70% of Catholics don’t think divorce is immoral.  Two quick anecdotes.  First, I had a receptionist many years ago who changed her mind about her fiancé but decided to go through with the wedding because to her it was easier to get divorced than suffer the embarrassment of sending out notice of wedding cancellation.  Second, I had a student in my Catholic Perspectives Seminar this past spring who had never heard that marriage was supposed to be a life-long union until reading for my class.  In other words, Fr. Coughlin – in his chapter – was the first person to propose to my student that marriage was permanent. 

Marriage is in deep trouble, and the question is what to do about it.  Some propose privatizing marriage by getting the state out of the business of privileging marriage.  And, if marriage is merely about two (or more) people’s current and transitory preferences, then I’m not sure why the state ought to privilege it.  Others argue that it should be opened up to SSM either as a matter of equality and/or as a matter of possibly strengthening the institution itself.  As Rob indicates, arguments against this position have a hard time gaining traction in our culture, especially with the use of all sorts of reproductive technology.  Several years ago I gave a CLE at the Christian Legal Society annual meeting entitled “Sex, Marriage, and Procreation.”  In that talk, I argued that the gay marriage is a logical extension of Griswold v. Connecticut. (As an aside, advocates of SSM are not advocating for equality but for the privileging of SSM along with traditional marriage above all other forms of intimate association).

Biologically, 1 + 1 = 1 when it comes to the coupling of one man and one woman, but 1 + 1 = 0 when it comes to the coupling of two men or two women. In nature, one man and one woman make one reproductive unit.  Does this biological fact signify a deeper reality about the nature of man and woman and the relationship between the two or is it merely a fact of nature that has been overcome by technology?  Since I believe that the biology signifies a deeper reality – the complementarity of the sexes, and I further believe that the marriage is, as Fr. Araujo said, the foundation of the basic unit of society, I come to the conclusion that we must work to strengthen this wounded institution.  But, strengthening it will not come about, IMHO, by extending its privileges to those who are categorically unqualified by reason of biology and what it signifies.

Will this argument be successful?  Can it gain traction?  Will it even get a hearing in our culture?  Can it be articulated in a way that may be persuasive?  I don’t know the answers to these questions, and I must confess doubt.  One thing is clear, the argument cannot be successful in a secularist culture that sees nothing beyond the biological fact and our ability to overcome the biology.  But, I do think that we can make the argument (whether successfully or not) in secular terms in a culture that is open to a deeper meaning. 

My thoughts on this subject became clear to me once I understood (it took decades) why the unitive aspect of the marital act could not be separated from the procreative aspect.  But, that is even a hard sell among Catholics who can talk in theological terms.  But, that is for another day...

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