Catholic Legal Theory—what to teach?

 

 

Over the past several days several of our friends at Mirror of Justice have offered news and insights about Varnum v. Brien, the Iowa same-sex marriage decision. I am grateful to them for their contributions. I most likely agree with the perspectives of some contributors who have spoken and disagree with those of others. But this is not why I write today.

 

The previous discussions about Varnum has provided the catalyst for my further thought on the processes of law-making and case deciding that raise questions about marriage and other issues (hot button) such as abortion, embryonic stem cell research, and euthanasia, to mention just a few. Varnum, as you may recall, was the opinion of a unanimous state supreme court invalidating on constitutional grounds the Iowa statute limiting civil marriage to the union of one man and one woman.

 

I have pondered the court’s opinion and find that it represents one way of approaching law that may well represent the prevalent method of law teaching today, i.e., the primacy of the will over the intellect. As one law teacher who is also committed to the development of Catholic legal theory, I find that this approach that emphasizes the will and reduces or eliminates the role of the intellect disturbing. In essence, the will as the basis of law, its making, and its resolution of disputes reflects whatever is the whim or fancy of the law maker or of those in charge of the legal mechanisms. The will’s close relative is totalitarianism. Varnum is punctuated with the exercise of the will and neglects the exercise of the intellect. For example, footnote 26 addresses the question of whether the interests of children are served equally well by same-sex “parents” as by opposite-sex parents. The footnote states in its entirety:

 

The research [not specified or identified] appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else. In any event, we do not address whether there is a rational basis for the marriage statute, as the sexual-orientation classification made by the statute is subject to a heightened standard of scrutiny.

 

Would that footnotes like this be subjected to the standard of the intellect rather than that of the will. I wonder if it is a stereotype to conclude that for children to be, it is necessary for them to have a mother and a father? The intellect says this is not a stereotype but a reality of science and human nature, but the will can offer whatever it wishes to the contrary. While it is true that marriages of the opposite-sex parents of children (who are crucial for the children to be) break up and that many children are born out of wedlock, these facts do not deny the reality that the couples of the opposite sex can do something that couples of the same-sex cannot: i.e., make children. Children need their fathers and their mothers. The fact that this does not always occur because of the dissolution or the absence of marriage does not make the result of single-parent households a desirable one. To assume, therefore, as the majority conclude, that children will be well-served by a same-sex couple which has not brought the child into this world and can provide someone else’s offspring with everything that the child needs is presumptuous. While the same-sex couple may labor very hard at trying to duplicate what the opposite-sex couple can provide on many fronts if they remain committed to one another and the child upon whom they conferred life, they cannot because for the same-sex couple, it is factually impossible. But the will, not the intellect, can declare otherwise.

 

Another illustration of the will, not the intellect, being the driving force of this opinion is the court’s discussion about “Religious Opposition to Same-Sex Marriage” in part I. The justices agree that the state (the county) did not raise religious issues in the case. However, the court presumes that religious opposition to same-sex marriage was a motivation for the law; therefore, it challenges (attacks) “the religious undercurrent propelling the same-sex marriage debate.” The court concludes that any religious “reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.” Ironically, the court then proceeds to identify with some satisfaction those “religious” views that do support the result that the state statute is flawed. Apparently, not all religious views are impermissible when the will rather than the intellect is at the helm of the legal system. As the states, “other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.” This critique of some religious views but not others is analogous to Justice Stevens’s criticism in Webster v. Reproductive Health Services wherein he points out in his footnote 16 that some religious perspectives do not agree with the Catholic perspective but, nonetheless, tacitly concur with the view he posits. If it would be wrong to adopt the Catholic perspective as he asserts, why is it not equally wrong to adopt other religious perspectives that happen to coincide with the views of Justice Stevens? Again, the will rather than the intellect is operative.

 

So, what should Catholic legal theorists make of this, particularly if they are teachers and are attempting to pass on the majesty of the law to succeeding generations of lawyers, judges, legislators, and administrators? Essentially this: the exercise of the will leads to justifying whatever the law-maker wants or is pressured to want. In contrast, the exercise of the intellect provides the mechanism to ensure that the law, its making, its meaning, and its enforcement do not reflect the whim of the most powerful but manifests the truth of the matter and the justice that is due to those whose lives are affected by the law, its administration, and the resolution of disputes over which it presides.

 

In short, Varnum is an important illustration of what can occur when the will rather than the intellect is in control of the legal institutions of a society that insists that it is a democracy but is quickly morphing into something more akin to a totalitarian state.  

 

RJA sj