Today The New York Times has a powerful editorial entitled “Edging Toward Equality.” [HERE] The objective of the editorial is to encourage the U.S. Senate to begin measures that would repeal the Defense of Marriage Act (DOMA) which the Times identifies as “deplorable” because it bars national recognition of same-sex marriage and “denies lawfully married same-sex couples benefits granted other married couples.” Although an editorial in any newspaper cannot get into long justifications presenting detailed reasoned argument, this editorial demonstrates an inherent weakness in its presentation on the idea of equality and the failure of the DOMA to provide equality as the Times editorial board understands the concept.
The Times asserts that the DOMA is both incoherent and unjust. But is it? Might it be just and coherent?
The DOMA defines for Federal purposes marriage as the “legal union between one man and one woman as husband and wife.” The word spouse is defined as “a person of the opposite sex who is a husband or wife.”
The editorial relies, in part, on the argument that if “don’t ask, don’t tell” can be repealed, so should DOMA. The editorial also assumes that contemporary litigation challenges against DOMA will succeed; therefore, the Senate should cave in and begin the repeal of DOMA. The final point of the Times argument is that there is a growing public sentiment to reject “this shameful discrimination.” The thrust of the editorial’s principal argument relies on the equality claim and DOMA’s denial of equality. But something is missing from the editorial’s presentation, and that is a clear and objective understanding of what is equality.
A consideration of the nature of equality might start with Kurt Vonnegut’s story of “Harrison Bergeron” where the tale begins with this anecdote:
The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger than anybody else. All this equality was due to the 211th, 212th, and 213th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.
We might also consider Noah Webster’s commemoration of the Declaration of Independence when he said:
if by equality, writers understand an equal right to distinction, and influence; or if they understand an equal share of talents and bodily powers; in these senses, all men are not equal. Such an equality would be inconsistent with the whole economy of nature. In the animal and vegetable world, however strong the general resemblance in the individuals of a species, each is marked with a distinct character; and this diversity is one of the principal beauties of creation, and probably an important feature in the system. There are, and there must be, distinctions among men . . . they are established by nature, as well as by social relations. Age, talents, virtue, public services, the possession of office and certain natural relations, carry with them just claims to distinction, to influence and authority.
Vonnegut and Webster were onto something about human intelligence and intelligible reality.
It is human intelligence grasping the intelligible reality of the world that surrounds us that leads to the inescapable conclusion that some folks are more adept at debate and discourse; others possess a clear superiority in sports and other physical activities; still others excel in musical talents while others cannot. The self-evident truths about human equality do not deny genuine human equality, but these same truths would acknowledge differences that do exist between and among people. This includes the fundamental distinction between couples of the same-sex and those of opposite-sex.
It is evident that the Times editorial must discuss equality in a legal sense as the proposed repeal of DOMA requires a legal understanding of the matter. After all, the repeal of DOMA sought by the Times concerns a law that is founded on the intelligible reality of human equality and the intelligible reality of human inequality.
This necessitates an understanding of the physical and metaphysical nature of human beings—in short, an understanding of human ontology is in order. For the term equality to have durable meaning in the context of well reasoned human law, equality must be understood within the framework of human nature—its diversity, its restrictions, its capacities, and its imperfections. To ignore these points would facilitate caprice not only in an idea but also in an important legal concept cherished by anyone who treasures the concept of the rule of law.
Genuine equality demands that school-age children (regardless of their race, color, creed, or ethnicity) be protected by laws that permit them to obtain an education that is the equivalent of their peers. Equality demands that men and women (regardless of their race, color, creed, or ethnicity) be entitled to choose their own spouse as the DOMA defines this term. However, the law that is reasonable and protects an ordered liberty can restrict selection of a spouse based on considerations of age and degrees of consanguinity.
For laws to make distinctions—to categorize— divisions must be just and reasoned. What constitutes this justice and this reason?
Well a few requirements quickly come to mind. One is that a just and reasonable law cannot simply reflect the will of the lawmaker, a particular lobby, or a majority. If the law did this, it would be purely positivist. I think this is what the Times has in mind: the law repealing DOMA would be a pure exercise of the will of the law maker, lobbies, or even a majority of the citizenry. The intelligible reality of marriage that is knowable by the intelligent human mind matters little. But this approach does not make good law that can endure. The law, and I suggest DOMA as one example, should state principles that reflect intelligible reality of the nature and essence of the human person, human society, and the posterity of humanity. The law that is just and reasonable needs to correlate facts and objective reason so that the norm can be generally applied.
When the debate, such as the one presented by the Times, concerns just laws dealing with human equality issues, each person should be equal to the other in having aspirations for the future and for the opportunities to fulfill these hopes. There must also be some sense of equality in the ability to make claims to the common stock of the things which are essential to sustaining human existence. But, we are not equal in how we perceive these objectives; moreover, we are not equal in possessing the talents and skills that enable us to pursue the many activities found within human existence, for some of us may have to expend a great effort to attain what it might take another little if any exertion. Moreover, there may well be a sound basis for saying that two people are unequal in certain regards. This is the intelligible and objective reality that underlies licensing schemes related to who gets to be a doctor, lawyer, pharmacist, plumber, electrician, etc.
It is the rational principle—reason tempered by empirical fact and the metaphysical nature of the human person—that demonstrates that there are distinctions between opposite-sex couples and same-sex couples. This critical distinction makes these couples unequal when the suggestion is made that for purposes of marriage they are equal. And this inequality is an exercise of justice that is true, not an injustice that is false. The source of the truth about human equality is beyond human definition and control, but it is knowable by the human person. However, this truth can be recognized by citizens and their legislators should they take the time to realize that this truth about marriage is something that transcends their ingenuity and control but can still be known by them as intelligent persons. Let us pray that the Congress of the United States will understand and accept this distinction that is crucial to the rule of law and the enduring validity of the DOMA.
RJA sj
Friday, November 4, 2011
First Amendment Stories (Foundation 2011), edited by Andrew Koppelman and some guy named Garnett, is out and available. Buy yours today, here. It would make a wonderful ____ gift for, well, anyone. The stories of 17 of the Court's most interesting and important free-speech and religious-freedom cases and controversies -- from the Sedition Act to the Ten Commandments and lots of ones in between -- are explored in depth by a diverse group of First Amendment scholars, including Michael McConnell, Paul Horwitz, Geoffrey Stone, Vince Blasi, and many, many others.
My friend and colleague, Dan Philpott (author of the outstanding God's Century) has a good piece up at the Berkeley Center's website, called "Citizens or Martyrs: The Uncertain Fate of Christians in the Arab Spring." A bit:
. . . Today, Egyptian Muslim office-seekers are divided among proponents of a strongly Islamic state and supporters of liberal rights, including religious freedom for Christians. The scenario of religious freedom, then, is plausible, too.
What can be done on behalf of Arab Christians to make this rosier scenario more likely? For its part, the U.S. government ought to use its power of economic aid and diplomatic recognition far more assertively to protect vulnerable Christians. To his credit, President Obama made religious freedom a tenet of his June 2009 speech in Cairo in which he sought to reorient U.S. relations with the Muslim world. But the response of his State Department to actual attacks on Christians has been tepid. The case for more vigorous U.S. support for Christians is in part one of human rights. But it runs wider. Protecting Christians is a matter of religious freedom, and religious freedom – for Christians as well as all minorities, including dissident Muslims – is an indispensable plank of stable, democratic regimes, a key goal of U.S. foreign policy in the region. In this highly religious part of the world, the attempts of secular dictators to suppress religion have bred violence and encouraged extremism, just as Islamist dictatorships would do were they to emerge. The middle possibility is the sort of democracy that invites the participation of religious communities and channels it in a civic direction. The protection of Christian minorities can be seen as a litmus test for such religious-friendly democracy.
For their part, Christians around the world could do far more to speak out on behalf of their beleaguered brethren. The lesson of Eastern Europe during the Cold War is that dissidents are emboldened and empowered by the support of outsiders. Christians, like the U.S. government, should realize that protection for fellow believers lies not merely in solidarity with the persecuted but in the kind of regime that protects religious freedom for all. . . .
By the way, the Berkeley Center (led by Tom Farr), is doing a lot of great religious-freedom work these days. This upcoming event -- a debate between Michael McConnell and Noah Feldman -- looks great.
A reader and attorney -- Dominique Ludvisgon -- who served for several years in the White House Office of. Faith-Based and Community Initiatives, sent me the following, with respect to the recent reports that the HHS had failed to renew a contract with the Bishops' Migration and Refugee Services office:
I wanted to touch base regarding the Anti-Sex Trafficking grant HHS stripped from USCCB recently. A few days ago, Marc DeGirolami posted on MOJ about it and the earlier ACLU lawsuit that may have played a role in the decision. Based on some recent news stories and editorial commentary, I think Mr. DeGirolami gives the Administration a little too much credit by implying that it acted rationally to diffuse the lawsuit rather than simply to press its own political agenda. (Jerry Markon of the Washington Post has a pretty good story about what happened here: http://news.yahoo.com/battle-flare-between-white-house-catholic-groups-201700706.html and Kathryn Lopez and Steven Wagner have two great posts on the Corner that provide more context here: http://www.nationalreview.com/corner/281859/unfair-and-politicized-anti-sex-trafficking-grant-process-kathryn-jean-lopez and here: http://www.nationalreview.com/corner/282053/trafficking-victims-take-backseat-ideology-steven-wagner).
Based on the facts that have come out regarding Obama political appointees' interference in the grant-making process, one is left with two impressions: (1) the anti-sex trafficking program is being politicized and manipulated in service to the radical pro-choice agenda set forth by this Administration and its HHS Secretary, Kathleen Sebelius and (2) this latest development in the state's attempt to crowd out highly-qualified religious social service providers that actually adhere to the fundamental tenets of their faith reveals, among other troubling things, what little regard this Administration has for the religious liberties of individuals and religious organizations and what an utter farce the Administration's Neighborhood and Community Partnerships office is.
For years, Bush Faith-Based & Community Initiatives critics like Barry Lynn, FFRF, the ACLU and others sought to dredge up evidence of politics trumping fair grant processes and for years, those critics came up empty. When he campaigned for office and early in his Administration, President Obama (and other Admin. officials like Josh DuBois) would frequently recite the criticisms, routinely and wrongly suggesting that the Bush Administration rigged the federal grants process to "funnel" public dollars to politically favored religious groups. So in a cheap-shot attempt to differentiate this Administration's virtuous social service partnership efforts from the allegedly biased work of its predecessor, Obama EO 13559, "Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations" contains the following provision (Section 2 (j)): "Decisions about awards of Federal financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization or lack thereof."
When it rolled out its version of the FBCI, the Administration suggested that it was still open to partnering with qualified religious (as well as secular service providers), but it would do so in a fair manner. What it didn't emphasize was that, regardless of the equal treatment regulations still on the books, its version of "partnership" entailed a return to the pre-Bush FBCI era, where hostility towards committed religious providers and outmoded strains of Establishment Clause jurisprudence prevailed.
Given the fantastic performance of the USCCB in its coordination of anti-trafficking victims services in past grant years and the determination by career officials and an independent review board that it was significantly more highly qualified than at least two of the three subsequent grant awardees (who were actually deemed "unqualified"), HHS's denial of the grant to USCCB is highly suspect indeed. In fact, if one considers this case in light of the Administration's track record on religious liberties and conscience protections, it is difficult to conclude anything but that USCCB was discriminated against because of its adherence to the Catholic church's teachings regarding human dignity and sexuality. Accordingly, HHS's actions appear to be unlawfully discriminatory AND fly in the face of the Administration's own rules with respect to partnerships between faith-based organizations and government.
One success of the Bush FBCI's equal treatment efforts was to encourage agencies to revise provisions in federal grant solicitations that had no basis in law and/or were actually motivated by hostility and discrimination towards religious social service providers. Such provisions, even when neutral on their face, had very discriminatory effects in practice by stacking the deck against qualified religious organizations competing for federal grants. In this case, the Obama/Sebelius HHS directed or permitted political appointees to strategically inserting language in grant solicitations motivated by hostility toward committed religious organizations. It further directed or permitted them to skirt fair grant procedures by disregarding the considered assessment of both career officials and an independent review board as to which grant applicants would most suitably perform the services required under the grant. Such actions should provoke an outcry among those who routinely crowed about the alleged politicization of federal grant programs during the Bush Administration. Where are all those critical voices now?
Over at Distinctly Catholic, Michael Sean Winters is also, I think, critical of the decision, but is not convinced that the denial is part of a larger "anybody but Catholics" attitude at HHS. We'll see.
I should note that Winters has a number of posts, in recent days, reflecting on law, culture, and religious liberty . . . and the new evangelization. Check them out.
Here is an updated announcement about the Religiously Affiliated Law Schools conference, which is being held this year at Touro and organized by Prof. Sam Levine:
On May 2-4, 2012, Touro Law Center will host the biennial Conference of Religiously Affiliated Law Schools. The Conference will explore a variety of important issues related to the general theme of "The Place of Religion in the Law School, the University, and the Practice of Law." Specific topics of discussion will include, among others: the relationship between the religiously affiliated law school and the university; bringing religion into the classroom; law and religion programs and institutes; and the role of religion in the work of public interest lawyers.
Along with the formal Conference proceedings, there will be time for informal discussions among participants, on these and other issues of common interest.
“We are excited to host this conference at Touro Law, particularly since it is the first time the conference will be hosted at a law school with a Jewish affiliation,” said Samuel J. Levine, Professor of Law and Director of the Jewish Law Institute at Touro Law Center. “We look forward to a meaningful conference that will have a positive and lasting impact.”
Nicholas Kristof, in the New York Times, has a "solution to many of the global problems that confront us, from climate change to poverty to civil wars . . . It’s called family planning, and it has been a victim of America’s religious wars." As he puts it, "family planning became tarnished by overzealous and coercive programs in China and India, and contraception became entangled in America’s abortion wars."
Christopher White responds, here, with some different proposals for how to meet the needs of the world's poor, especially women and young girls.
This report is heart-breaking:
In mid-October Egyptian media published news of an altercation between Muslim and Christian students over a classroom seat at a school in Mallawi, Minya province, reports Michael Ireland, Senior Correspondent, ASSIST News Service.
Egyptian journalist Mary Abdelmassih, writing for AINA -- Assyrian International News Agency -- www.aina.org, says the altercation lead to the murder of a Christian student.
AINA says the media portrayed the incident as non-sectarian. However, Copts Without Borders, a Coptic news website, refuted this version and was first to report that the Christian student was murdered because he was wearing a crucifix.
As Nina Shea put it, a few months ago, the so-called "Arab Spring" "has not been kind" to Egypt's Christian minority.
Thursday, November 3, 2011
In a few days, some people (not me!) will be "celebrating" Guy Fawkes Day (or Bonfire Night). (Aside: This day was commemorated in my public school, when I was in first grade.) Reading this BBC piece about my (very distant) relative, Henry Garnet, S.J., would be a better use of time than firecrackers. Free the Gunpowder Plot One!
