Jody Bottum's Commonweal piece has attracted a fair bit of attention, criticism, praise, raised eyebrows, etc., during the last few weeks. I gather that he has tried to clarify or re-state a few things that, in the essay itself, were not said so well (e.g., his off-the-cuff and unwarranted dismissal of the argument that the Constitution does not require including same-sex relationships in the legal category of marriage).
I have read the essay twice. It is, as many have pointed out, very long and I think it is fair to say that it meanders and that its arguments are, at times, difficult to follow. Although the piece was billed as a "case for same-sex marriage," it's not clear to me that the essay was actually crafted or intended to make such a "case."
Initially, it seemed to me that, for purposes of this blog, what might be of particular interest in the piece is the connection between (what I think was) the author's point (i.e., those who embrace what the Church teaches about marriage should nevertheless accept, and abandon efforts to resist, revisions to the law's definition of marriage) and the longstanding debate / conversation about "legal moralism" and about the extent to which the demands, prohibitions, definitions, and categorizations of the positive law should track those of morality. (See generally, e.g., G. Kalscheur, "Moral Limits on Morals Legislation", here.) On this topic, I took Jody to be saying that because of certain things about our contemporary culture in the United States (including our views about sexuality and marriage generally), it no longer makes sense -- it will not, for much longer, be possible -- to insist or even expect that the positive law regarding the legal category of marriage track what the Church teaches (and, I think, Bottum still believes is true) about marriage.
So, is this true? I take it that Bottum believes that even if popular opinion swings dramatically toward the legalization of euthanasia, he (and the Church) should continue to oppose the legalization of euthanasia and should resist this legalization even after it happens. Why, in Jody's view, is this "case" different? Because of a distinction between "public" and "private" matters? Because euthanasia's legalization endangers the vulnerable while legal recognition of same-sex marriages does not? Because the Church and her bishops have credibility on dignity-of-life issues but not on matters relating to marriage and sexuality? For other reasons?
Bottum also suggested, I think, that, given all the cultural givens (the lack of "enchantment," etc.), it is almost anomalous for the law *not* to recognize same-sex marriages, that those who embrace the Church's teachings cannot reasonably expect this anomaly to continue, and that perhaps they should, instead, work on changing these cultural givens and -- thereby, eventually -- changing our practice of marriage. A question, though, is whether accepting, resigning to, or even endorsing the move toward legal recognition of same-sex marriage is actually likely to change these cultural givens or prompt changes in the practice of marriage -- to "re-enchant the world," as Bottum puts it. Or, as some fear, will this move be accompanied by intrusions on religious freedom, by unforeseen consequences, and by additional cultural changes that make the practice of marriage even more difficult?
As I thought and talked about the issue more, it started to seem to me that my "ah, we're talking about legal moralism!" reaction was itself a mistake. After all, as a friend pointed out, we are (almost) *always* talking, when we talk about what the content of the positive law should be, not about *whether* the positive law should reflect, teach, and / or enforce "morality," but about *which* views regarding the true, good, beautiful, and right the law should reflect, teach, and / or enforce. If this is right, Jody's essay is not of a piece with the misguided "you can't legislate morality" assertion that we often (oddly) hear in law-school classrooms, but is instead a call for "conservatives" to accept the fact that positive law of marriage is moving to reflect more accurately the moral views that, he thinks, are the ones that (for better or worse) increasingly, and perhaps already, animate our culture and practices. And, if *this* is really what Bottum was arguing -- and not that what the Church teaches about marriage and sexuality is wrong -- then it seems to me that the two primary counter-arguments will be (a) No, the positive law's apparent movement in that direction will not necessarily continue, in part because that movement is not, actually, consistent with the moral views that most people hold and want the positive law to reflect and / or (b) the positive law's movement in that direction should be resisted, even if it is consistent with the moral views that increasingly hold sway, because those moral views are misguided and need to be (charitably, effectively, etc.) challenged. Or . . . I could (still) be misreading the essay!
Thursday, September 5, 2013
The third analytical index entry for "Law" in the Compendium of the Social Doctrine of the Church points to no. 33. This appears in chapter one ("God's Plan of Love for Humanity"), section II ("Jesus Christ the Fulfilment of the Father's Plan of Love"), subsection b ("The revelation of trinitarian love"). Among other things, no. 33 grounds human solidarity in a particular kind of unity that reflects the Trinity:
33. The commandment of mutual love, which represents the law of life for God's people[32],must inspire, purify and elevate all human relationships in society and in politics. “To be human means to be called to interpersonal communion”[33], because the image and the likeness of the Trinitarian God are the basis of the whole of “human ‘ethos', which reaches its apex in the commandment of love”[34]. The modern cultural, social, economic and political phenomenon of interdependence, which intensifies and makes particularly evident the bonds that unite the human family, accentuates once more, in the light of Revelation, “a new model of the unity of the human race, which must ultimately inspire our solidarity. This supreme model of unity, which is a reflection of the intimate life of God, one God in three Persons, is what we Christians mean by the word 'communion'”[35].
[32] Cf. Second Vatican Ecumenical Council, Dogmatic Constitution Lumen Gentium, 9:AAS 57 (1965), 12-14.
[33] John Paul II, Apostolic Letter Mulieris Dignitatem, 7: AAS 80 (1988), 1666.
[34] John Paul II, Apostolic Letter Mulieris Dignitatem, 7: AAS 80 (1988), 1665-1666.
[35] John Paul II, Encyclical Letter Sollicitudo Rei Socialis, 40: AAS 80 (1988), 569.
In tomorrow's (Friday's) Wall Street Journal, I offer some reflections on how my late friend and collaborator Jean Bethke Elshtain might advise us to think about whether to support or oppose President Obama's proposal for limited military strikes against the Assad regime in Syria. I don't know, nor would I presume to guess, how Jean finally would have come down on the question. She was a subtle and therefore often upredictable thinker. But I have a pretty good idea of what kinds of arguments she would have regarded as morally serious and what kinds she would have regarded as morally irrelevant or, worse still, immorally cynical.
Wednesday, September 4, 2013
The second analytical index entry for “Law” in the Compendium of the Social Doctrine of the Church points to no. 24. This appears in chapter one (“God’s Plan of Love for Humanity”), section I (“God’s Liberating Action in the History of Israel”), subsection a (“God’s gratuitous presence”). Among other things, no. 24 points to two examples of divine positive law, “legislation … designed to ensure that the salvific event of the Exodus and fidelity to the Covenant represents not only the founding principle of Israel's social, political and economic life, but also the principle for dealing with questions concerning economic poverty and social injustices”:
24. Among the many norms which tend to give concrete expression to the style of gratuitousness and sharing in justice which God inspires, the law of the sabbatical year (celebrated every seven years) and that of the jubilee year (celebrated every fifty years) [27] stand out as important guidelines — unfortunately never fully put into effect historically — for the social and economic life of the people of Israel. Besides requiring fields to lie fallow, these laws call for the cancellation of debts and a general release of persons and goods: everyone is free to return to his family of origin and to regain possession of his birthright.
This legislation is designed to ensure that the salvific event of the Exodus and fidelity to the Covenant represents not only the founding principle of Israel's social, political and economic life, but also the principle for dealing with questions concerning economic poverty and social injustices. This principle is invoked in order to transform, continuously and from within, the life of the people of the Covenant, so that this life will correspond to God's plan. To eliminate the discrimination and economic inequalities caused by socio-economic changes, every seven years the memory of the Exodus and the Covenant are translated into social and juridical terms, in order to bring the concepts of property, debts, loans and goods back to their deepest meaning.
[27] These laws are found in Ex 23, Deut 15, Lev 25.
Tuesday, September 3, 2013
At "Public Discourse," Shaykh Hamza Yusuf and I reinterate our plea to hotel executives to break their companies' links with the pornography industry, and we praise the exellent moral example set by the CEO of the Scandinavian hotel chain "Nordic Hotels":
www.thepublicdiscourse.com/2013/09/10850/
Chris Ferrara, whose work I've admired previously, here on MOJ and in other venues, hits the nail on the head yet again, this time with respect to Syria and that which is really driving the American engines of what is sometimes called "intervention." Please consider Ferrara's argument and facts in this brief
editorial. As Bernard Lonergan asked (in one of my very favorite of his lines): "Is everyone to use force against everyone to convince everyone that force is beside the point?" Force represents a failure both of intelligence and of grace. The acephalous United States of America cannot think intelligently enough to see the need for grace in order to solve the world's problems.
