I recently presented an oral argument in U.S. District Court for the Eastern District of Pennsylvania in the case of Cozen O'Conner P.C. v. Tobits, one of the cases considering the constitutionality of the federal Defense of Marriage Act. It was presented in support of an amicus curiae brief I submitted together with Sherif Girgis and Ryan Anderson. Here is the text of my oral argument:
A key question, perhaps the key question, this Court is being called on to address is whether the Constitution of the United States chooses between competing moral understandings of the nature, value, and social purposes of marriage, thus settling the question of how marriage is to be defined. On reflection, I believe your honor will see that it does not. Rather, the Constitution leaves the matter, as it leaves most matters of substantive law where choices between competing moral understandings must be made, for resolution in the forums of democratic deliberation and decision making, including, in the case of federal law, the Congress of the United States.
Laws characteristically embody and reflect moral judgments. This is true of the law of contract and the law of murder, and it is no less true of the law of marriage. Laws should be made carefully so that they embody sound understandings of good and bad, right and wrong, justice and injustice; but as careful thinkers about law from Aristotle in ancient Greece to Dr. Martin Luther King in our own time have made clear, laws cannot be morally neutral, nor should we try to make them so. Efforts to mask the moral judgments embodied and expressed in our laws have no effect other than to wrap those judgments in a cloak of obscurity—creating a mere illusion of neutrality.
The historic law of marriage reaffirmed in the Defense of Marriage Act embodies the moral judgment that marriage is the conjugal union of husband and wife united in a form of relationship—a comprehensive sharing oflife at every level, including the bodily-biological level—that is in principle apt for, and would naturally be fulfilled by, procreation and the rearing of children. This distinctive type of union is, and has always been understood to be, distinguishable from ordinary
friendships and even from sexual-romantic domestic partnerships in its social function of binding men and women together in a way that, overall, best serves the interests of children who are born as a result of their sexual union, and serves society as a whole, which vitally depends on the marriage-based family for its stability. The conjugal conception of
marriage is, to be sure, articulated in the scriptures of Judaism and Christianity as well as other faiths, but it was also articulated and defended by thinkers such as Plato and Plutarch in the ancient traditions of Greek and Roman thought with no reliance on the concept of divine revelation.
Of course, the conjugal understanding of marriage, though by far the dominant one not only in our own culture but in cultures generally, is not the only possible one. Insert a different moral understanding, and marriage could be defined, as it has been in some cultures, to accommodate polygamous partnerships and even, as some wish to define it today, to include multiple partners in polyamorous sexual unions of more than two persons.
In the case currently before your honor, the Court is being invited to replace the moral understanding at the heart of the historic conjugal conception of marriage with a competing moral understanding according to which marriage would be redefined as sexual-romantic domestic partnership—thus rendering sexual-reproductive complementary unnecessary and irrelevant. Marriage, on the new moral understanding, would be an emotional union—a union of hearts and minds—but not a bodily union of the type made possible by the biological complementarity of husband and wife.
There are many good arguments for favoring the conjugal conception of marriage over the revisionist conception being proposed. The former moral conception can, and the latter moral conception cannot, provide an intelligible basis for the belief that marriage is, foundationally, a sexual partnership, as opposed to a partnership that could as well be integrated around any of a number of shared interests having nothing to do with sexuality. By the same token, the conjugal conception can provide an objective moral basis for norms of exclusivity, fidelity, and permanence of commitments---norms that on the revisionist conception can be affirmed, if at all, only on the basis of subjective sentiment, not moral principle.
However, this Court should not choose between the competing moral understandings on offer from supporters of the conjugal conception of marriage and the revisionist conception. This is because nothing in the Constitution settles the issue between them. It is left, rather, to the people acting on their own in referenda and initiatives in states that provide for those decision-making procedures, and through their elected representatives in the state legislatures and the Congress. It is up to the democratic process, not the courts purporting to act in the name of the Constitution, to make the moral judgment that marriage should be retained as a conjugal partnership, or to make the competing moral judgments that would redefine marriage, whether to accommodate polygamous, polyamorous, or same sex partnerships.
(Cross Posted at First Things: http://www.firstthings.com/onthesquare/2012/05/the-constitution-doesnrsquot-settle-the-marriage-debate)
Saturday, May 12, 2012
Today I had the pleasure of attending the 123rd commencement at The Catholic University of America. The graduation speaker for the University was Cardinal Timothy Dolan, Archbishop of New York. He had some interesting and inspiring reflections he shared with the graduates and their families. Here is an excerpt:
That we are at our best when we give ourselves away in love to another — the Law of the Gift — is I'm afraid, "counter-cultural" today, in an era that prefers getting to giving, and entitlement to responsibility;
in a society that considers every drive, desire, or urge as a right, and where convenience and privacy can trump even the right to life itself;
and in a mindset where freedom is reduced to the liberty to do whatever we want, wherever we want, whenever, however, with whomever we want, rather than the duty to do what we ought . . .well, the Law of the Gift can be as ignored as a yellow traffic light in New York City.
It reminded me of the unique role of Catholic education to prepare our students not only professionally and academically, but also to be counter-cultural in a pursuit of what is just. Here is the address in full:
http://publicaffairs.cua.edu/releases/2012/dolan-commencement-speech.cfm
Or, one could just reflect upon a poster I saw on campus last week aimed at the graduating seniors. It reminded the students to remember the reasons they selected Catholic University …and to not forget to take those values with them as they enter the world.
With the recent tippings of the hands of the Vice President and President (by relying on his Christian faith) to support the initiative to legalize same-sex marriage (a matter traditionally within the jurisdiction of the states), former Speaker of the House, Representative Nancy Pelosi [HERE], has thrown her support in favor of this “evolving” concept. Not only did she endorse the President’s views and embrace his rationale, she offered her own perspective in response to the related questions, “Do you believe that religion and the idea that you can support gay marriage should be separated? And how do you grapple with the idea that you support gay marriage as a Catholic?”, by stating that,
My religion compels me, and I love it for it, to be against discrimination of any kind in our country. And I consider this a form of discrimination. I think it is unconstitutional on top of that. So, I think that yesterday was a great day for America because the President in a very personal, as well as presidential way, made history.
Once again, with the greatest respect to the representative and her leadership post in Congress, I suggest that she does not understand very well what her religion—which happens to be mine as well—says about discrimination.
The first point is that the Church to which she and I belong does not condemn “discrimination of any kind” but, rather, it condemns unjust discrimination. If I interpret her statement correctly, she asserts that the Church is “against discrimination of any kind.” As she says, her religion “compels her” to be “against discrimination of any kind.” But even Rep. Pelosi discriminates, and her discriminations for the most part are probably not unjust—some may even be objectively reasonable and, therefore, perfectly acceptable and be in accordance with American and Christian values. For example, when she chooses a clothing ensemble, by selecting a red, or blue, or tan outfit, she discriminates. When she contrasts the policies and platform of her party and distinguishes them from the opposition party, she discriminates. When she is at a fundraiser and selects one beverage or no beverage, she discriminates. When she calls upon one questioner at a press conference when time is running out but there are many hands in the air or many voices calling out, she discriminates. Surely all these forms of discrimination, while understandable and widely practiced, are not unjust.
Of course, some who claim the office of theologian say that the Church and her bishops are wrong on the issue of same-sex marriage initiatives by opposing them and argue that the Church’s position on this subject is “not really an argument that has theological justification.” [HERE] Really? How remarkably astonishing! What is all the more surprising is that one of the theologians quoted in the link just cited argues that the bishops “are misrepresenting ‘Catholic teaching,’” and are “trying to present their idiosyncratic minority views as the ‘Catholic position,’ and it is not.” To ask again: Really? The justification upon which this person relies seems to be polls as he indicates by referring to “most Catholic theologians”, so if fifty-one percent of the Catholics in this country were ready to bring back slavery or mandatory sterilization of “imbeciles”, would that make the Church’s teachings against these policies additional “idiosyncratic minority” views? Another theologian who is quoted in the previous link claims that the Church’s position on marriage and the institution of civil marriage are distinct (but he fails to acknowledge that Catholic priests and deacons perform marriages which are recognized by the civil authorities), so the Church should declare: “It’s none of our business.” But if it is not any of the Church’s business, why does this Catholic theologian have on or around his office door (at a Catholic university) posters endorsing same-sex marriage? He might argue that this is his personal view. But if it is, why is he, who has influence over the intellectual and moral formation of young Catholics, underscoring his support to his students and anyone else who passes by his office at a Catholic university? Maybe that’s one reason why younger people who claim to be Catholic are increasingly inclined to support same-sex marriage: they haven’t been exposed to reasoned views to the contrary in institutions which claim the moniker “Catholic”.
But I must return to Representative Pelosi’s position before concluding this post. When people discriminate about who can marry whom, the discrimination that results need not be unjust and, therefore, not contrary to the religion of Rep. Pelosi. When the civil law (and the Church) prohibit minors from marriage, the discrimination is not unjust. When the civil law (and the Church) prevent marriages within certain degrees of consanguinity, the discrimination is not unjust. When the civil law (and the Church) do not permit marriages of several partners, the discrimination is not unjust.
Now that the President and Representative Pelosi have brought religion into the realm of the state vis-à-vis the question of marriage and what constitutes marriage, I wonder if we shall see Americans United for Separation of Church and State launching their latest legal crusade against such unconstitutional establishment, knowing that if Bishop Jenky should not bring religion into public policy issues, why should public officials be permitted to do this without objection?
RJA sj
Friday, May 11, 2012
Michael Gerson writes on millennials in general shifting toward acceptance of same-sex marriage; Christianity Today summarizes the shifts among young evangelicals. I agree with what I take to be Gerson's overall message (albeit one he appropriately qualifies and hedges): this trend is likely to continue rather than reverse. Part of the shift on gay marriage may be due to a decline in religious commitment among millennials compared with people of the same age in years past (although the causation could run the other way too: Gerson cites a study suggesting that millennials may be leaving religion in part because they perceive it as "anti-gay"). But even significant conversions to traditionalist/conservative Christianity don't seem likely to stop the trend, given the ongoing changes in the attitudes of young evangelicals that CT reports.
I know that some others on the blog think that traditionalist Christians must succeed in stopping same-sex marriage altogether--and must elevate that strategy over appeals to pluralism to protect their own religious-liberty rights--because once SSM is established, appeals to pluralism and religious liberty will be hopeless. But Gerson thinks, and I agree, that conservatives will have to shift toward the pluralism/religious-liberty emphasis:
And the generational shift will inevitably influence the fights conservatives choose to make. Even a significant portion of millennials who regard homosexuality as immoral support gay marriage out of a commitment to pluralism. And arguments in favor of pluralism have a tremendous advantage in America. In much of the country, social conservatives may need to choose a more defensible political line — the protection of individual and institutional conscience rights for those who disagree with gay marriage. It is also a commitment of genuine pluralism to allow those with differing moral beliefs to associate in institutions that reflect their convictions.
As a member of the board of Democrats for Life of America, I encourage interested readers to sign this petition. It calls on the party to change its platform language to express greater openness to pro-life positions and voters. As the accompanying DFLA press release notes, former President Carter recently made an exhortation along similar lines.
Thursday, May 10, 2012
At Catholic Moral Theology, Tobias Winright has a really good post up, responding to Charles Lane's recent argument that the death penalty is sometimes -- as in the case of Anders Breivik -- justified. (HT: Distinctly Catholic.)
I have admitted several times over the years here at MOJ to some reservations -- notwithstanding my view that capital punishment should be rejected -- about the way the Church's (relatively) recent criticisms of / reservations about / limitations on / possible justifications for capital punishment are expressed in the Catechism and elsewhere. These reservations, in a nutshell, reflect a worry that punishment-theory talk is collapsing into self-defense / legitimate-killing / double-effect talk.
As Winright writes, "the Catholic Church today has a principled moral stance that no longer accepts the death penalty as a form of retributive punishment." And because (as I see it) the only satisfactory justification for punishment is meaningful retribution (understood correctly, not merely as "revenge") by legitimate public authority, then I would think that this means the death penalty is not justified as punishment at all. (Winright notes that the 1992 Catechism was revised to remove mention of the "death penalty" from the discussion on criminal penalties.) That is, the death penalty is not permissible, at all. What is (possibly) permissible, I gather, is killing someone -- whether or not that person has been convicted of a capital crime? -- when such killing "is the only possible way of effectively defending human lives against the unjust aggressor." But, to say (and teach) that the death penalty -- understood as a penalty -- is not permissible at all is, I think, to say and teach something (non-trivially) different from what, it seems to me, the Church said and taught for a long time. And, I cannot help thinking that the sharpness of this break is, sometimes, being softened by suggestions that "the death penalty" is permissible in extreme ("practically non-existent") circumstances.
