Mirror of Justice

Friday, July 19, 2013

Garnett on Same-Sex Marriage and Religious Freedom

Rick's got a thoughtful and measured piece up at Commonweal about the effects of the recent same-sex marriage decisions, and particularly the DOMA decision, on various issues relating to religious freedom. You should read it all (I had no idea about Dixville Notch--showing my first generation American colors). Here's the conclusion, which is an interesting reflection on the nature and psychology of claims for exemption generally:

It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”

However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.

Thursday, July 18, 2013

"The pursuit of happiness"

By Patrick McKinley Brennan

My new paper, "'The Pursuit of Happiness' Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality," published as part of a symposium on "Whether Legalization of Same-Sex Marriage is Constitutionally Required" in The BYU Journal of Public Law, is available here.

Here is the abstract for the paper:

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being "the first creedal nation" in history are, when they come to oppose same-sex marriage, hoist of their own creedal petard; "the pursuit of happiness" leads, for some people, to same-sex union. Locke followed his own logic to a defense of polygamy, and the same logic leads to same-sex unions. The paper concludes that truly principled opposition to same-sex marriage requires the embrace of politics rooted in man's summum bonum, the very project modernity has been out to eradicate. The Catholic Church would be a help to the state in leading man to achieve his summum bonum, but Locke's tolerance does not extend to the liberty of the Church (libertas Ecclesiae), nor, not accidentally, does the U.S. Constitution recognize the liberty of the Church per se.

This paper originated as an invited contribution to a symposium on "Whether Legal Recognition of Same-Sex Marriage is Constitutionally Required," held at BYU's J. Reuben Clark School of Law in November, 2012. The Lockean logic of Justice Kennedy's majority opinion in United States v. Windsor is unmistakable (if unnamed), even if the Court stopped slightly short of taking that logic for all that it is worth. Given Justice Kennedy's Lockean principles, there is no principled basis for not announcing a constitutional right to same-sex marriage, as Justice Scalia recognized in dissent.

Tuesday, July 16, 2013

On the Claim That Separation Strengthens Religion

By Marc DeGirolami

George Will has a long essay in National Affairs on religion and the American Republic. It's interesting in parts: as a self-professed "None," Will reflects on the importance (but also the non-necessity) of religion as a support for American public and political life. Here's a fragment:

[E]ven the founders who were unbelievers considered it a civic duty — a public service — to be observant unbelievers. For example, two days after Jefferson wrote his famous letter endorsing a "wall of separation" between church and state, he attended, as he and other government officials often would, church services held in the chamber of the House of Representatives. Services were also held in the Treasury building.

Jefferson and other founders made statesmanlike accommodation of the public's strong preference, which then as now was for religion to enjoy ample space in the public square. They understood that Christianity, particularly in its post-Reformation ferments, fostered attitudes and aptitudes associated with, and useful to, popular government. Protestantism's emphasis on the individual's direct, unmediated relationship with God and the primacy of individual conscience and choice subverted conventions of hierarchical societies in which deference was expected from the many toward the few.

Beyond that, however, the American founding owed much more to John Locke than to Jesus. The founders created a distinctly modern regime, one respectful of pre-existing rights — rights that exist before government and so are natural in that they are not creations of the regime that exists to secure them. In 1786, the year before the Constitutional Convention, in the preamble to the Virginia Statute for Religious Freedom, Jefferson proclaimed: "[O]ur civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry."

In fact, religion is central to the American polity precisely because religion is not central to American politics. That is, religion plays a large role in nurturing the virtue that republican government presupposes because of the modernity of America. Our nation assigns to politics and public policy the secondary and subsidiary role of encouraging, or at least not stunting, the flourishing of the infrastructure of institutions that have the primary responsibility for nurturing the sociology of virtue. American religion therefore coexists comfortably with, but is not itself a component of, American government.

Religion's independence of politics has been part of its strength. There is a fascinating paradox at work in our nation's history: America, the first and most relentlessly modern nation, is — to the consternation of social scientists — also the most religious modern nation. One important reason for this is that we have disentangled religion from public institutions.

One hears this kind of "fascinating paradox" claim frequently, but what's much more fascinating is that one hears it from both conservative and progressive quarters. For conservatives it reinforces the myth of special American religious vigor that Americans like to tell themselves is a vital source of their collective civic health. For progressives it represents a distinctively American and putatively "pro-religion" argument for keeping religion as far away from politics as possible. American exceptionalism may be out of favor in elite circles, but this particular strain of it dies hard.

The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It's an argument that Madison made famous in his "Memorial and Remonstrance" and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris) and that now George Will makes. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough--an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense "twice-born."

Notice also the individualistic current on which the claim rides. It isn't just that the state is "likely to get it wrong"; that is an argument for disestablishment (although one not available to secularists, since "it" is completely "wrong"). The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones "likely to get it right"--that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of "bad" religion was group religion-- and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations. (On Roger Williams's views on this score, see Philip Hamburger's extended discussion; the claim's full-throated adoption by secular philosophers like Martha Nussbaum has seemed anachronistic to me, but it makes far more sense viewed from the perspective of an autonomous spiritual "seeker" peering through an anti-institutional lens. Andrew Koppelman has a long piece attempting to update it for modern times). Many have made the claim; surely many will continue to do so.

But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable (or "logical," as George Will might put it) about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: "Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?" And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.

I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own--reasons unrelated to, or at least independent of, strict separationism.

If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States--circumstances in which the Puritan evangelicalism represented by Roger Williams's particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.

At any rate, the action of separation on religion's strength in America was situational and circumstantial; it was hardly causal or inevitable; and it is hardly inevitable that a policy of more stringent separationism at this juncture in the country's history and cultural circumstances will result in a more vibrant religious life. Countries with other backgrounds and other histories who look to the United States as a model in this respect may well be misled. The pre-existing evangelical bulwark made church-state separation look like a real shot in the arm for religion, not the other way round.

It is a distinctively lawyerly foible to believe that the weakening or strengthening of broad and entrenched cultural phenomena is caused, or even substantially affected, by a government policy or a court-imposed legal rule. This is not to say that legal policies do not have social effects; of course they do. But the degree of influence often is neither unidirectional nor especially significant. There are signs that traditional forms of religiosity are weakening in the United States: the rise of the "Nones" of which George Will counts himself a member is only one such sign. The gathering strength of the Nones is occurring when religion is as a general matter more "disentangled from public institutions" than at any point in the country's history. Perhaps the Nones and other religio-cultural movements augur new forms of religiosity in America, forms that will eventually supplant the traditional varieties of religious experience. On these matters, see several posts by my colleague Mark Movsesian, who is studying this issue. But however these changes may go, government policies relating to church and state are likely to have nothing more than an unpredictable and largely incidental effect on these developments.

Libertarianism and Catholic Social Teaching

By Rick Garnett

Prof. Patrick Clark (University of Scranton) has a worth-reading essay up, over at the Catholic Moral Theology blog. It's called "Libertarianism and Catholic Social Teaching: Convergence and Divergence." I appreciated, among other things, the fact that Prof. Clark acknowledged and explored the thematic "convergences" between (some forms of) libertarianism and the Catholic Social Teaching tradition, en route to recalling and expounding the dissonance. It's disappointing, to me, when Catholic intellectuals and scholars settle for name-calling ("Randian!") as a response to the important points that libertarians make about, e.g., the importance of constraining the ability of the political authority to infringe on the (ordered) liberty of persons and of resisting statist utopianism. (We are, of course, familiar with the various ways in which some forms of philosophical libertarianism, or some policies supported by libertarians, are inconsistent with the Catholic tradition's emphases on community and solidarity.) Here's a bit:

Leo XIII’s path-breaking encyclical Rerum Novarum is often portrayed as a proposal of a “middle way” between Marxist socialism and the unfettered capitalism of the industrial revolution. Yet both sides of this twofold critique emerge from a common root, namely the denunciation of those political philosophies that warrant the modern state’s claim to absolute sovereignty over their citizenry. Put more positively, Leo XIII sought to protect the genuine autonomy of those intermediary human communities (such as trade unions) from the encroachment of governmental structures whose authority over such communities rested not upon any “general will” but rather upon abstract ideological commitments. These ideological commitments, both in their Marxist and capitalist forms, are built upon the presumption that the social realm is most fundamentally an arena of violence. From the Marxist perspective, this violence takes the shape of the great ongoing “class struggle,” while from the capitalist perspective, this violence is the natural basis for the competition that fuels the market and so ultimately produces ameliorative ends. Either way, political organization amounts to an extrinsic (and wholly benevolent) intervention upon “the way things are.” Both inevitably lead to forms of totalitarianism in so far as the lives of individual citizens and their proximate associations become subordinated to the ideological abstractions that justify modern regimes. In this sense, the entire project of modern Catholic social teaching emerges from a suspicion of the modern state’s claim to absolute sovereignty that bears remarkable resemblance to the libertarian suspicion of government today. Both suspicions are about the corrosive effects of unchecked, centralized power. Yet Catholic social teaching would diverge from libertarianism in claiming that this corrosive potential is not so much about the essential nature of power itself but about the contingent conditions under which power is in fact being wielded here and now.

Monday, July 15, 2013

Some marriage revisionists think it's now politically safe to tell the truth

By Robert George

Confident that they have now secured their victory in both law and public opinion, marriage revisionists are increasingly willing to admit that key arguments made by their opponents--arguments they were themselves until recently ridiculing and even denouncing as "scare mongering"--were right all along. Evidently, they think that honesty and candor about the logical implications and future legal consequences of redefining marriage are now politically safe. The latest example is Kent Greenfield, a Boston College law professor and supporter of marriage revisionism, writing in no less mainstream and respected a journal of left-liberal opinion than The American Prospect. Here are his opening sentences:

"It’s been a few weeks since the victories in the marriage cases at the Supreme Court, and maybe it’s time for the political left to own up to something. You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right."

Read the entire article here: www.prospect.org/article/slippery-slope-polygamy-and-incest.

The amazing Ryan Anderson

By Robert George

OK, OK, he is my co-author (of What is Marriage? Man and Woman: A Defense) and my former research assistant---so maybe I'm biased. BUT, I think Ryan Anderson is quickly establishing himself as his generation's most impressive Catholic public intellectual. I give you as Exhibit A Ryan's banquet speech at the Alliance Defending Freedom summer academy (posted today by First Things): http://www.firstthings.com/onthesquare/2013/07/calling-and-witness-holiness-and-truth

Relationship as the Antidote to Stereotype

By Greg Sisk

In our recently-published empirical study of religious freedom cases brought in the federal courts, Michael Heise and I found that American Muslims have been at a distinct and substantial disadvantage in raising free exercise claims. Gregory C. Sisk & Michael Heise, Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts, 98 Iowa Law Review 231 (2012) (here). Holding other variables constant, the likelihood of success for non-Muslim claimants in religious free exercise claims was 38 percent, while the probability of success for Muslim claimants fell to 22 percent. In sum, Muslim claimants had only about half the chance to receive accommodation that was enjoyed by claimants from other religious communities.

Turning from statistical analysis to interpretive evaluation, we suggested that the most likely explanation for the Muslim disadvantage was the often subconscious perception by many of us that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Sociologist Stanley Cohen originated the term “moral panic,” defined as when a “condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests [and] its nature is presented in a stylized and stereotypical fashion.” We fear that we have been experiencing such a "moral panic." Indeed, we argue that the persistent uneasiness of many Americans about Muslims poses a new threat to religious liberty.

The negative image of Islam and its followers in America, sadly accepted by a substantial segment of our society, bears little resemblance to reality. As reported by the Pew Research Center in 2007 (here):

A comprehensive nationwide survey of Muslim Americans finds them to be largely assimilated, happy with their lives, and moderate with respect to many of the issues that have divided Muslims and Westerners around the world. Muslim Americans are a highly diverse population, one largely comprised of immigrants. Nonetheless, they are decidedly American in their outlook, values, and attitudes. Overwhelmingly, they believe that hard work pays off in this society. This belief is reflected in Muslim American income and education levels, which generally mirror those of the general public.

A larger percentage of Muslims (71 percent in 2007, 74 percent in 2011) than the general American public (64 percent in 2007, 62 percent in 2011) has adopted a strong work ethic and believes people can move ahead through hard work. (Pew Survey 2007; Pew Survey 2011). Muslim American women are highly educated, second only to Jewish women in that regard, and Muslim Americans have the highest level of gender pay equity. Overall, more than three-quarters of Muslims in the United States report that they are happy or satisfied with their lives. A more recent poll found that, among all religious groups, Muslim Americans are the most optimistic about their future.

Nonetheless, negative stereotypes persist. Why? Poll results and statistics -- knowledge divorced from relationship -- are unlikely to bring us all the way home.

As psychology Professor Seymour Epstein explains, each of us “apprehends reality in two fundamentally different ways, one variously labeled intuitive, natural, non-verbal, narrative, and experiential, and the other analytical, deliberative, verbal, and rational.” Psychology Professor and Nobel laureate in economics Daniel Kahneman describes “System 1” as “operating automatically and quickly, with little or no effort and no sense of voluntary control,” while “System 2,” which is our “conscious reasoning self” gives “attention to the effortful mental activities that demand it.”

Despite being an integral and often beneficial side of our personality, Epstein warns that the experiential system is “[m]ore crudely differentiated” and lends itself to “stereotypical thinking.”

But while a tendency toward stereotypical thinking about our fellow human beings may be somewhat hard-wired into our brains, psychology Professor Albert Bandura emphasizes that “[t]he capability to reflect upon oneself and the adequacy of one’s thoughts and actions is [an] exclusively human attribute.” In rough terms, while our animal instincts may prompt us to be suspicious of others who are different than we are, our human capacity grants us the gift of reflection and reconstruction and empathy.

Epstein advises that a person may “improve [the experiential system] by providing it with corrective experiences.” A group of law and psychology scholars in a recent article with Professor Jerry Kang as lead author urges us to counter harmful subconscious prejudices by “engage[ing] in effortful, deliberative processing.” Professor Kang and his scholarly associates refer to this “potentially effective strategy” to reduce the impact of implicit biases as “expos[ing] ourselves to countertypical associations.”

In sum, we are talking about “relationship.” When we are making decisions about people, fundamental fairness and respect for human dignity demands that we make individual and rational judgments. And we are more likely to do so when we know people, when we expand our circle of friends and neighbors and associates and students.

As lawyers, law professors, and law students, our professional work is about relationships. I just returned weekend before last from an important conference on professional formation hosted by the Holloran Center at the University of St. Thomas School of Law. A key theme was that clients are not problems to be solved but people to be served. Moreover, as legal educators, we must remember that the most effective instruction is one built on relationships in a diverse classroom community.

In his first encyclical this past month, Pope Francis reminds us that relationship is at the heart of our Catholic faith. In the Old Testament, God reveals Himself to Abraham by calling him by name: “God is not the god of a particular place, or a deity linked to specific sacred time, but the God of a person, the God of Abraham, Isaac and Jacob, capable of interacting with man and establishing a covenant with him. Faith is our response to a word which engages us personally, to a ‘Thou’ who calls us by name.” In the New Testament, we are called to a relational faith through “the person of Christ himself, who can be seen and heard.”

These words of Pope Francis should resonate all of us who are saddened by societal divisions and the stain of harmful stereotypes: "Persons always live in relationship. We come from others, we belong to others, and our lives are enlarged by our encounter with others.”

My "Fortnight for Freedom" talk

By Rick Garnett

Here's a short story about a talk I gave, at the local Cathedral, in connection with the Fortnight for Freedom. A taste:

“Religious freedom is a human right — not a concession — grounded in human dignity, fundamental and essential for human flourishing. Every person, because he or she is a person has the right to religious liberty.”

This was the message University of Notre Dame law professor Richard Garnett brought to an audience in St. Matthew Cathedral on the eve of July 4, the night before the official closing of the U.S. Bishops’ Fortnight for Freedom. Garnett is an expert on the U.S. Constitution and is a consultant to the United States Conference of Catholic Bishops’ Ad Hoc Committee for Religious Liberty.

“Our founders put religious liberty at the heart, the core, not the periphery, of their bold new project,” he continued. “They knew that, unless our most sacred things are protected, all our other freedoms — press, speech, conscience, privacy — are vulnerable. Religious freedom was widely seen not as a gift, but, as it should be, as part of the very structure of a free society.”

Sunday, July 14, 2013

Another Observation about Hollingsworth

By Robert John Araujo, SJ

I have been reading again the two marriage decisions issued by the Supreme Court recently, i.e., United States v. Windsor and Hollingsworth v. Perry. Previously, I offered several remarks on Hollingsworth on this site, but now I see a reason to add another thought about the Proposition 8 case, its influence on Windsor, and what Justice Alito said in his dissenting opinion in Windsor.

In Windsor, Justice Alito notes at page 15, footnote 7 of his dissenting opinion that the Brief of the Constitutional and Civil Procedure Professors, amici curiae, asserted in their Hollingsworth brief that Judge Walker’s “factual findings are compelling and should be given significant weight.” This brief continued by stating that “Under any standard of review, this Court [the Supreme Court of the United States] should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts.” [Italics added by RJA sj] Several of these claims by law professors cited by Justice Alito are untenable. Why do I make this observation?

First of all, one of Judge Walker’s findings (with references to the supportive testimony; in particular one deponent’s statement that the “Catholic Church views homosexuality as ‘sinful’”) was that: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Fact Finding, N. 77, p. 101.

The more I consider what these colleagues in the teaching profession have indirectly said about religion (Catholicism, in particular) by urging adoption of Judge Walker’s findings and the shadow that their arguments about his findings cast, I appreciate all the more what Justice Alito said regarding these contentions: “Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.”

I will put aside the issue of sinfulness mentioned in Judge Walker’s findings since I do not think Federal judges or other civil officials should decide whether any act is sin or sinful. Making this determination falls outside of the civil official’s competence. Catholic teaching informs us that any sexual activity—be it hetero- or homosexual—outside of marriage that is the union of one man and one woman is also sinful. But whether this religious belief harms co-habiting male and female partnerships is a dubious claim to make. There are occasions where sin and wrongful doing under the law coincide. For example, lying is a sin. We had a discussion about this at the Mirror of Justice some time ago. But lying, e.g., perjury, is also an offense under the law. In such a case, a court dealing with lying is not looking at the act of lying as a sin but, rather, as an offense against the civil code or common law. While not having the authority to address the sin, the court has the jurisdiction to address the purported crime and civil wrong.

Consequently, judges do have the competence to decide if something is right or wrong, i.e., consistent or not, with human behavior that is a subject of the law. In this context, let me parse the rest of the Judge Walker’s finding, relevant to this posting, that “Religious beliefs that gay and lesbian relationships are… inferior to heterosexual relationships harms gays and lesbians.” The issue of considering inferiority may well fall within the competence of a court as the judge(s) may raise the question of equality, equal protection under the law, and due process when one status may be considered inferior to another. So the next issue to consider is this: how does this matter of “inferiority” harm homosexual couples? Should we consider whether there is a qualitative and objective distinction between the two? Making this consideration is essential to whether or not there really is harm that needs to be addressed by the law.

In order to assess the merits or lack thereof of the inferiority argument, it is essential to consider whether the heterosexual couple and the homosexual couple are different in any meaningful, substantive way. Why? Well, one indisputable fact that did not make it into the findings of fact of the District Court helps shed understanding on the nature of this distinction: the complementarity of the sexes which is manifested in their sexual activity. This is a relevant fact upon which Judge Walker did not comment or recognize in this finding, but there is an implicit assumption in his finding that hetero- and homosexual couples are the same in every respect. But they are not.

But then, one might next ask: why should complementarity matter? It matters because two persons of the opposite sex (and who are of physical, biological maturity) have the capacity or the potential for the capacity to do something which the same-sex couple cannot do. In this regard, the same-sex couple is, in fact, “inferior.” It does not mean that they are necessarily less human or less deserving of legal protection on matters where the fact of complementarity of the sexes is not relevant (e.g., can they be denied the right to register to vote? No.), but when it comes to the issue of sexual complementarity having a bearing on marriage, there is a difference which makes one couple “inferior to”, i.e., different from, the other. As I have argued at the Mirror of Justice and elsewhere before, the accuracy and the truth of this distinction can be demonstrated with the following hypothetical: planet A and planet B are respectively colonized by humans; opposite-sex couples are sent to planet A, and same-sex couples are sent to planet B. I shall assume that neither group has the means of assisted reproductive technologies. In one hundred years we return to both planets. Will both still be populated? The answer is clear: No, only planet A will be. Why? The answer remains in the fact of the distinction between the two kinds of couples. While both kinds may have love and commitment, only those sent to planet A will be able to sustain the human race due to the complementarity of the sexes.

The religious person relying on faith alone might not make this observation; but the religious person who pays attention to objective reason can, does, and must contend that this distinction bears a vital difference between the two kinds of couples. But so can any other person, lay or expert, who makes the distinction based on objective reason that is crucial to rigorous and exacting applications of collecting data and evidence reach the same conclusion about this important difference between same-sex and opposite-sex couples. To contend, as the law professors cited by Justice Alito, that Judge Walker’s finding results “from rigorous and exacting application of the Federal Rules of Evidence, and [is] supported by reliable research and by the unanimous consensus of mainstream social science experts” is suspect, to say the least. While I tend to shy away from language employed by Justice Alito, I do not shy away from the logic and truth that undergirds his point.

The criticism and condemnation of religious persons for asserting that there is a difference between opposite-sex and same-sex couples is wrong; objective reality, which is the subject of “rigorous and exacting” fact-finding, demonstrates without question that those who make this distinction are making a truthful statement that is not only relevant but also vital to the law. To say otherwise is the real harm.

RJA sj

Saturday, July 13, 2013

Reflections on a Challenging Time

By Mary G. Leary

Helen Alvaré from George Mason has an insightful piece over on Public Discourse discussing many of the major legal actions of the Supreme Court, Department of Health and Human Services, and Texas State Legislature during the past month. Placing them in a larger context, her reflections are well worth the read.