Professor Robin West has recently published a short article in the current alumni magazine Georgetown Law which borrows from her recent book, Marriage, Sexuality, and Gender. The article entitled Civil Union Law: A Modest Proposal is available [HERE].
Her take on civil unions is very interesting to read; however, her proposal is not a modest one.
She begins her “modest proposal” with a critique of the institution of marriage and the traditional laws that regulate it by suggesting that marriage “poses a political question requiring democratic resolution.” I don’t think she specifies what the question (or problem) is that requires resolution. While her effort is cast as a noble one, it appears that the objective toward which she labors and the justification for it pose challenges not only to democratic resolution of underlying issues, as she identifies them, but to the common good of society and the posterity of its members. Her fascinating understanding of traditional marriage misunderstands that it is, by its nature, a covenant, which in vows and exchanges of consent expresses a complementary commitment of love. Her counterproposal to replace it is an appropriation of the problematic dicta of Casey that there is “a realm of personal liberty which the government may not enter… At the heart of liberty is the right to define one’s own concept of existence, of meaning of the universe, and the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Because of her subscription to this kind of exaggerated freedom, she sees 19th century marriage as “a patriarchal institution” and marriage of the mid-20th century as “a purely traditional institution, widely viewed as delineating gender roles, sexual mores, and a conception of the good life that jointly constitute the natural foundation of civil society.”
For her, marriage was transformed after 1970 and became something different in the early 21st century mind: the product of Casey’s understanding of liberty—less of an enduring institution and more of personal choice. As she asserts in her critique, “Parties [now] enter marriage when and if they want to and with partners of their own choice”, and it is a “custom design” institution of their own making. Cohabitation may or may not lead to marriage, and Professor West, unlike myself, is not troubled by either path to which cohabitation may lead. But, she should be. The reason she is not is because she suggests that persons should be able to “contractually mimic the benefits of marriage without entering the legal relationship.” [Emphasis mine] I think this contention of hers overlooks the fact that marriage is supposed to remind individuals not only of self-established rights freely chosen but also freely embraced responsibilities they owe to the other spouse, their children, and the society that does or should encourage them in their spousal, parental, and societal obligations.
Professor West intimates early in her “modest proposal” that marriage has “become a much better deal for both sexes, but most profoundly, for women.” Her rationale for this appears to be largely based on the notion that potential or existing parties to marriage now have the right to be left alone without much, if any, sense of duty, and can take the relationship to wherever they choose to go with it. As she states, the marriage partners “have the power to avoid marriage altogether, if they so desire, or to exit it, if need be.” These points apply particularly to women, who are also free to become mothers “outside of marriage” and can do so “with very few legal impediments”, such as the right to abort their children. Once again, Casey’s formula for liberty has played a prominent role in her “modest proposal.” The good that has been achieved for Professor West in the institution’s evolution is presented in her declaration that marriage “has become a more liberal institution, and women are somewhat more equal, and much freer, as a result.” Yes, indeed, members of both sexes appear to be very free of any expression of responsibility to themselves, to their spouse, to their children, or to society as one follows the explication of her “modest proposal.” But I do not view this as a good as does Professor West; rather, I see it as a tragedy or one in the making.
At this point she professes that marriage “has become a political question, and hence a matter for public deliberation.” The tribute that she has paid to marriage now begins to evaporate. I would not disagree that marriage has surely been the subject of laws made by most state, and previously colonial, legislatures. However, I think what the author has in mind is that marriage can remain a “political question” insofar as the political and legal mechanisms of American society reflect her views of marriage and what it should be and by what it should be replaced. When these mechanisms do not concur with her position, let us use the example of the legislative efforts to restrict or prohibit same-sex marriages or civil unions or to define marriage as the union of one man and one woman, I think she would not allow for this sort of public deliberation.
In support of my interpretation of her “modest proposal” I consider her statement that marriage is not only an issue of “individual choice” (such as terminating a pregnancy) but something that reflects and supports her views on what is normative and what is not. While she seems to assert the contrary in her statement, “it is the need for political judgment, not individual choice, which now presses upon us,” it is clear from the rest of her “modest proposal” that civil unions—be they heterosexual or homosexual—will become the substitute for marriage and the obligations marriage has entailed for so long. As she states,
My long-range goal…is to redirect the movement for same-sex marriage in a way that will not compromise its commitment to formal equality, but that will also address directly definitional and normative questions about the nature and point of marriage. I want to fashion a proposal for political reform of marriage that will turn the debate away from that of who may enter, and instead toward the question of the value of the house then occupied.
Her immediate goal is to place into the “public debate” the “reform” of marriage—which for her is the establishment of civil unions, as she defines them, as the new norm. While she professes that she is not in the camp that wants to eliminate marriage, her “modest proposal” will do just that because, as she states, her understanding of civil union will “over time, become the legal mechanism by which any two people—regardless of sexual orientation—who wish to commit themselves to the lifelong care of each other and their shared dependents, formalize and sanctify their intention and desire to do so.” She notes that this “modest proposal” would provide the sanction and protection of the state by material and moral support. Her justification for this state role is founded on undefined “desirable social ends” in which the state has “a not inconsiderable interest in promoting.” My skepticism of this portion of her “modest proposal” is founded on her earlier recitation of the expression of liberty she wants associated with civil unions minus the responsibilities that traditional marriage incurred. Here she asserts that civil unions would be permanent; but is this really her objective? I think she has put aside her earlier concerns about traditional marriage that focused on what might constitute needs to end the traditional marital bonds by retaining the power “to exit it [the civil union], if need be.” What is permanent in an early assertion becomes temporary in a following one. The nature of her proposal is not so modest when one considers that, if accepted, it will replace marriage with a “mimic”, to use her word, that will make its partners “fully entitled to all the privileges, rights, and benefits currently given to married couples.” As she states, “There would, ideally, be no practical or legal difference between the two legal regimes, except that civil union would be considerably more ‘open’ in terms of who might enter.”
It is vital to the survival of marriage, as American society has long embraced it, to realize that Professor West’s “modest proposal” is a wolf in sheep’s clothing: it opens the door to many combinations and permutations, such as multiple-member “civil unions”, that take little regard of anything else other than the parties’ desires. While she appears to insist that a civil union will be restricted to a partnership of two, what would prevent those persons seeking equality for, let us say, polygamous unions to join in the “public debate” so that their claims to “equality” are satisfied too? Building upon Professor West’s “modest proposal,” why should these citizens who have a role in the “public debate” have any less equal interest in Professor West’s conclusion that there “just isn’t any good reason for the state to take an interest in whether that couple’s sexual activity is contracepted or not; or whether it is coital, digital, anal, oral, or missionary; or whether it is masturbatory, coupled, or involves multiple partners; or whether it is monogamous, polygamous, polyamorous, or open; and so on.” Since the state has no legitimate interest in these matters, why should it have a legitimate interest in the number or the age of the parties to the civil unions that are at the core of her “modest proposal”?
In short, Professor West’s “modest proposal” is a recipe for whatever an association of people want the union to be because it “expand[s] choice” by intensifying “the cumulative effect of many individual choices [that are] in turn guided by evolving social and cultural norms.” She is open to her “modest proposal” defining the civil union “so that it is available not only to same-sex conjugal couples, but also as an option for straight couples, couples consisting of ambiguously sexed individuals, and nonconjugal couples of any combination of sexes and sexual orientations, as well.” And when this is accomplished, who knows where this new “norm” would go after it has been accepted as a parallel institution that would not complement but would compete with marriage?
But Professor West suggests that this is not the case when she states,
A heterosexual couple could either civilly marry, or civilly unite — the difference at the point of licensing might be (as Chai Feldblum has helpfully suggested in private conversation) nothing but the color of the form filled out. The choice between them also might, however, reflect the couple’s view regarding the nature of the state’s interest in their union.
But, I ask, what happens when the public debate, the political process, and the state conclude that there is no need for different colored forms when one will do, regardless of its color? While Professor West again suggests that civil unions in conformity with her “modest proposal” would be more durable than marriage, she offers nothing that will justify this bold assertion. Moreover, she concedes that civil unions will be no more durable than conventional marriage when she concludes that a civil union “is open to change; it is intentionally malleable.” And this would include the change and the malleability afforded by dissolution. She concludes her article by stating that a civil union should not be viewed as transitional; however, under her “modest proposal” we ought to consider marriage as the “transitional institution” since it is “historically rooted in irrational traditions, imposed for centuries on unreflective boys and powerless girls, serving rarely explicated and never well understood state needs for eugenics, population control, female subordination, and sexual discipline.” I fear that she does not see that it is her “modest proposal” which is far more transitional since there is nothing to anchor it other than human caprice.
Professor West has crafted a fascinating proposal, but it is by no means a modest one. RJA sj
Tuesday, April 22, 2008
Last Friday morning I had the opportunity to hear Pope Benedict deliver his address to the UN General Assembly. My remarks today are designed to explain the contributions I believe the Holy Father has made so far to the continuing development of Catholic legal thought. It is relevant to point out that Pope Benedict expanded on themes dealing with international society, law, and organizations treated by his predecessors such as Benedict XV, Pius XII, Paul VI, and John Paul II. One of these themes that Pope Benedict XVI identified early in his intervention is that the UN is a “family of nations” rather than simply an organization of States. As he said in quoting from John Paul II’s 1995 address to the General Assembly, the UN should be “a moral center where all the nations of the world feel at home and develop a shared awareness of being… a ‘family of nations.’” The foundation for making this claim is his acknowledgement that the work of the UN, by implicit and explicit provisions of its Charter, is to advance the common good of the entire human family rather than the interests of specific groups or States.
While he spoke about many of the issues on which the UN was founded to address, he offered specific focus on concerns with which the social doctrine of the Church is particularly concerned in the present age. In this context, he emphasized the connection between the role of rules and structures that promote the common good and the protection of human freedom. This theme was initiated at the White House welcoming ceremony a few days earlier when the Pope spoke of the exercise of freedom and the responsibilities is carries. This nexus if founded on the reality that genuine human freedom belongs to all and can only be guaranteed by the common good which exists to protect the dignity of everyone rather than just some. In his own words Benedict stated that,
In the name of freedom, there has to be a correlation between rights and duties, by which every person is called to assume responsibility for his or her choices, made as a consequence of entering into relations with others. Here our thoughts turn also to the way the results of scientific research and technological advances have sometimes been applied.
In this regard, I recall the particular efforts of the Holy See during the human cloning debates that led to the adoption of the UN Declaration on Human Cloning in 2005. The Holy Father stated that the scientific and other gains made in recent years must be geared to serving all members of the human family. If this is not the case, it is possible to develop new forms of servitude that denigrate the inherent human dignity that belongs to every member of the human race. As he said, “This never requires a choice to be made between science and ethics: rather it is a question of adopting a scientific method that is truly respectful of ethical imperatives.”
The Holy Father spoke at some length on an issue that is receiving increasing attention in international legal discussions, i.e., the responsibility to protect. This responsibility has two dimensions. The more obvious one involves the rights of nations to protect their own populations from “grave and sustained violations of human rights” and from the consequences of natural and man-made humanitarian crises. However, if a State is incapable or unwilling to meet this responsibility, then the international community has an obligation to intervene. But this latter duty is not without limit for the proper sovereignty of peoples and their governments must be respected. The preferred means of addressing these needs is through diplomatic channels; however, other means, presumably including the use of necessary and proportionate force, may be considered if negotiations and diplomatic efforts fail.
It would have been surprising if the Holy Father did not address the role of the natural law that has been crucial to the growth of international legal norms. Pope Benedict began this portion of his discourse by reminding the audience of the contribution of the Dominican, Francis de Vitoria, to the foundation of international law. (I am sure that the question of time necessitated the deletion of the equally important contributions of the Jesuit, Francis Suárez!) It is within their noteworthy treatises on legal theory that both developed the idea of the “responsibility to protect” that is the product of natural reason that exists among all peoples. At the foundation of this “natural reason” is the principle that everyone bears the image of the Creator, the reality of which is at the core of human rights and the recognition of the dignity of the human person. The Holy Father lost no time in connecting this point with the sixtieth anniversary of the Universal Declaration of Human Rights that will be celebrated later this year. Benedict emphasized that the Universal Declaration was the product of different cultural and religious traditions that were nonetheless capable of recognizing certain fundamental principles about human nature and the corresponding rights and responsibilities that were discovered through the application of natural reason, the bedrock of the natural law. As he said,
the universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the Declaration apply to everyone by virtue of the common origin of the person, who remains the high-point of God’s creative design for the world and for history. They are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights.
The Holy Father continued his examination of the foundational relevance of human rights by noting that their source is not of human origin, including the actions of the State and international organizations, but from the author of life, Himself. Otherwise, rights become impoverished ideas, subject to human caprice, that are separated from their essential ethical and rational foundations and objectives. This is why the Universal Declaration was established on an eternal rather than a utilitarian form of justice.
One human right given particular attention by the Holy Father is religious liberty. Even in the present day western democracies of the United States and Europe, religious liberty and its inevitable partner, conscience, are under assault. One important reason for protecting religious freedom is that it promotes dialogue between and among peoples that is founded on certain commonly held principles. But it is necessary to keep separate from government control and protect religious belief and practices that concern the common good from the oversight of political action. It is also the further duty of the UN to draw from the truth, coexistence, rights, and reconciliation that emerge from religious beliefs and their exercise.
The Pope expressed his concern over the efforts of civil society and State mechanisms which attempt to regulate or suppress religious beliefs and actions in order to “preserve” other “rights.” This is evident in the U.S. and some western European States today when “abortion rights” are being allowed to trump the conscience of doctors, nurses, and pharmacists who are opposed to participation in the termination or prevention of nascent human life. The suppression of religion, including belief and practices based on belief, should never be the price individuals and religious communities must pay to enjoy the right of participation in public life. As Benedict said, “It should never be necessary to deny God in order to enjoy one’s rights.” In this regard, there should never be a preference for secular ideology over religion nor the partiality of one religion over another. It is vital that both religious worship and the public role of religion in building the social order are protected. I am certain the Holy Father had in mind that contributions made by universities, schools, hospitals, members of professions, and charitable organizations that have a foundation in religious belief also need to be protected when the State, including western democracies, attempt to dictate how these contributions can and cannot be offered to society.
It was no coincidence that Pope Benedict concluded his address by encouraging “Peace and Prosperity with God’s help” to the representatives of all God’s peoples. As we are reminded in scripture when the question who can be saved is raised, Jesus answers, “With men this is impossible, but with God all things are possible.”
RJA sj
