Mirror of Justice

Monday, February 15, 2010

On religious objections to granting access to civil marriage to same-sex couples

Same-sex sexual conduct—and therefore same-sex unions—are “in direct opposition to God’s truth as He has revealed it in the Scriptures.” So said the Rev. Ron Johnson, Jr. on Sept. 28, 2008. See Peter Slevin, “33 Pastors Flout Tax Law with Political Sermons,” Washington Post, Sept. 29, 2008.

This is what the Supreme Court of Iowa had to say--not the Massachusetts Supreme Court, not the California Supreme Court, but the Iowa Supreme Court--in Varnum v. Brien (2009):

Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.

While unexpressed, religious sentiment most likely motivates many, if not most, opponents of same-sex civil marriage and perhaps even shapes the views of those people who may accept gay and lesbian unions but find the notion of same-sex marriage unsettling. Consequently, we address the religious undercurrent propelling the same-sex marriage debate as a means to fully explain our rationale for rejecting the dual-gender requirement of the marriage statute.

It is quite understandable that religiously motivated opposition to same-sex civil marriage shapes the basis for legal opposition to same-sex marriage, even if only indirectly. Religious objections to same-sex marriage are supported by thousands of years of tradition and biblical interpretation. The belief that the “sanctity of marriage” would be undermined by the inclusion of gay and lesbian couples bears a striking conceptual resemblance to the expressed secular rationale for maintaining the tradition of marriage as a union between dual-gender couples, but better identifies the source of the opposition. Whether expressly or impliedly, much of society rejects same-sex marriage due to sincere, deeply ingrained—even fundamental—religious belief.

Yet, such views are not the only religious views of marriage. As demonstrated by amicus groups, other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 (“The general assembly shall make no law respecting an establishment of religion . . . .”). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.

We, of course, have a constitutional mandate to protect the free exercise of religion in Iowa, which includes the freedom of a religious organization to define marriages it solemnizes as unions between a man and a woman. See Iowa Const. art. I, § 3 (“The general assembly shall make no law . . . prohibiting the free exercise [of religion] . . . .”). This mission to protect religious freedom is consistent with our task to prevent government from endorsing any religious view. State government can have no religious views, either directly or indirectly, expressed through its legislation. This proposition is the essence of the separation of church and state.

As a result, civil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals. This approach does not disrespect or denigrate the religious views of many Iowans who may strongly believe in marriage as a dual-gender union, but considers, as we must, only the constitutional rights of all people, as expressed by the promise of equal protection for all. We are not permitted to do less and would damage our constitution immeasurably by trying to do more. “The only legitimate inquiry we can make is whether [the statute] is constitutional. If it is not, its virtues . . . cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be abandoned.”

In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views. A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

John Allen and Expanding Lay Roles

By Elizabeth Schiltz

This post continues our discussion of John Allen’s top ten trends revolutionizing the Church. (See these links for the first, second, third, and fourth trends.) The fifth trend that he identifies is one in which most of us MOJ bloggers and readers are participating – the expanding role of the laity in the Church. Allen starts by justifying labeling lay activism as a “trend”, given that lay activism has always been a part of the Church’s history, from its earliest days of the house churches of Rome. The Second Vatican Council’s challenge to the clericalism that increasingly marked the Church in the intervening centuries has led to what Allen identifies as the current “trend”: “That the laity are emerging as protagonists both inside and outside the Church. Internally, laypeople are occupying ministerial and administrative positions once held almost exclusively by priests. Externally, laypeople are taking it upon themselves to evangelize culture and to act on Catholic social teaching. It’s the one-two punch, lay ministers inside the Church and lay activists on the outside, that constitutes the trend.”

Allen attributes the expansion of lay activism as being so ubiquitous as to be almost unremarkable, encompassing everything from organized movements such as Focolare and Sant’Edigio, to the informal, grassroots leadership being provided by ‘lay pundits’ and ‘bloggers’ – that’s us! Among the forces driving this expansion are practical forces, such as priest shortages creating gaps in pastoral care that have been filled by laity, and theological developments, namely, contemporary theological understandings of the role of the lay apostolate articulated at the Second Vatican Council in documents like Aposticam Actuositatem (“The lay apostolate is a share in the Church’s mission of salvation.”).

The most visible sign of the expanding lay roles is the explosion of organized lay movements. Allen describes three of them as representative of the wide range of outlooks and activities represented by these movements: L’Arche, consisting of small communities of friendship between people with disabilities and people without, creating “little places . . . where love is possible”; Focolare, (about which Amy can – and I hope will – say much more than either Allen or me) focusing on ecumenism and interreligious dialogue and sponsoring a network of businesses adhering to the “Economy of Communion”, with 4.5 million adherents over 182 countries living different levels of affiliation to the movement ; and the Community of Sant’Egidio, the “UN of Trastevere”, focusing on international conflict resolution.

Equally dramatic is the growth in lay ecclesial ministry. Allen documents the growing imbalance between lay ministers and priests in the U.S. Between 1990 and today, the number ecclesial lay ministers working in Catholic parishes grew by 9,000; the number of Catholic priests, diocesan and religious, decreased by almost 6,000. There are currently more than 20,000 people in the U.S. in programs of formation to become lay ecclesial ministers, roughly six times the number of graduate-level seminarians. The same trend can be documented in Europe. While it’s more difficult to document the growth of lay ministry in the rest of the world, Allen suggests the same imbalance is present, and growing, globally.

Ken Starr to Baylor

By Michael Scaperlanda

The Waco Tribune reports that Ken Starr, currently the dean at Pepperdine Law School, has been named President of Baylor University.

Sunday, February 14, 2010

Why I am in the debt of Richard Albert of Boston College Law School

By Michael Perry

Perhaps, after "over three decades", I should quit while I'm ahead: Book Review.

Many Thanks, Fr. Araujo

By Kevin P. Lee

Many thanks to Fr. Araujo for his comments on the textbook issue here in North Carolina. I just want to add one note of clarification.

As it turns out, the phrase, "oppressive government" was used by the Department of Public Education. The Department issued a statement (in the idiom of the educational bureaucracy ) on the proposed changes to the Civics textbook that explains the "assessment prototype" for the "Civics unit" on Constitutional rights "derived from the founding documents." The statement explains the "formation goal" for the unit this way:

"Using three Supreme Court Cases (e.g., Brown v Board, Roe v Wade, Korematsu v US) as support, explain how the US Supreme Court has upheld rights against oppressive government."

Presumably, this means that after completing the unit, the student should be able to explain how the "founding documents" guarantee a right to abortion, against "oppressive government."

On the question whether same-sex couples should be granted access to civil marriage

By Michael Perry

Thanks again to Rob Vischer for his thoughtful response to my post.

Now, in response to Rick, some hasty thoughts:

Rob raised some questions—important questions, in my view--about the argument, and then concluded with this: “Does SSM represent changes to marriage beyond the gender of the participants, and if it does, are the changes likely to impede the essential social functions of marriage? In my estimation, that's the crux of the argument that needs to be engaged by both opponents and proponents of SSM.”

I don't know whether "SSM represent[s] changes to marriage beyond the gender of the participants …” It may. What change of changes? Perhaps, inter alia, this: marriage as a less patriarchal--less sexist--institution. ("The husband is 'the head' of the family; wives, submit to your husbands.") Whatever the answer, marriage has long been an evolving social institution. Happily so: Many women who are married today—and many men, too--understandably would not be interested in being part of the institution of marriage as it existed hundreds of years ago.

“[A]re the changes likely to impede the essential social functions of marriage?”

What are "the essential social functions of marriage"? Was there a consensus about the precise contents of the then-set of “essential social functions of [civil] marriage” before access to civil divorce became the norm? Did granting access to civil divorce impede some—one or more—of those functions? Which one(s)? (Did it change some of those functions? Some for the better?) If so, was granting access to civil divorce, all things considered, a mistake? Is there a consensus about the precise contents of the now-set of “essential social functions of [civil] marriage”? Would granting access to civil marriage to same-sex couples impede one or more of those functions? Which one(s)? (Would it change some of them? Some for the better?) If so, would granting such access, all things considered, be a mistake?

Will anyone not already strongly opposed to granting access to civil marriage to same-sex couples think that the argument Rob sketched (but did not affirm) is a good reason to oppose granting such access? In particular, will anyone who does not believe that same-sex sexual conduct is immoral think that the argument Rob sketched is a good reason to oppose granting access to civil marriage to same-sex couples? Who but one who believes that same-sex sexual conduct is immoral will think it is legitimate, that it is just, to deny access to civil marriage to the same-sex couples who intend for their unions to be lifelong, monogamous unions of faithful love, because there are other same-sex couples who do not so intend?

South Carolina Governor Sanford’s wife tells us that the governor refused to take a vow of fidelity when they got married (but that she married him anyway). Should couples be denied access to civil marriage unless both members are willing to take a vow of fidelity?

Is the argument Rob sketched a good reason for refusing to create “civil unions” for same-sex couples—civil unions that are not called “marriages”?

Saturday, February 13, 2010

Thoughts on the Needle Exchange Program adopted by the Diocese of Albany

By Robert John Araujo, SJ

I should like to thank Bob Hockett for his bringing to our attention the Washington Post article published earlier today on the Albany Diocese’s needle exchange program. In short, the thrust of the argument appears to be: it is a choice between the lesser of two evils. Is it really? Is there any guarantee that once the addict leaves the distribution center or centers administered by the Diocese he or she will use it once and then return it prior to the time the next “fix” is required? It is apparent that there will be no supervision by Safe Point in how the new needle is used and for how long by the addict of illegal drugs. Moreover, there appears to be no recognition that at some point, all hypodermic syringes are new—even the used one being returned for an exchange was new at one time. There is some agreement with the program as Susan’s comment to Bob’s posting suggests: she states that the Diocese has made the correct decision. I cannot endorse this view; furthermore, I am troubled that some in the Diocese believe that the United States Conference of Catholic Bishops ought to now reconsider its position against needle exchanges. Since reason is an underlying principle of the law and, therefore, legal theory—including that which employs the label Catholic—, let us test the various propositions put forth in the Post article with reason. Jonathan’s comments to Rob’s posting help us begin this task.

First of all, let us consider the contention that, while illegal drug use is bad, the spread of deadly disease is worse. Let us test the soundness of this proposition. I begin with the distinction that this statement makes that blood-borne diseases are deemed a greater evil than drug addiction and the addictions essential surrounding issues. It is false. Illegal drug use is no lesser an evil because without appropriate medical treatment, the spiral of the addict will progress downward until the day that the addict’s body can no longer sustain the chemical abuse, and he or she dies from an overdose or other complications. There is no good ending to untreated drug abuse with serious and illegal drugs that require injection by hypodermic syringes. The addict is constantly hanging over a pit of destruction started by himself or herself and then sustained, as Jonathan points out, by drug lords who have little interest in anything but more profit. By providing a needle exchange program, any institution is at a minimum turning a blind eye to the profit driven motivations that prey on human life without mercy and the destruction of life that this chemical dependency generates. Are there alternatives? Of course there are. Treatment programs, job counseling programs, and other projects that could be substituted for needle exchange programs help the addict far more than assistance that will only sustain the addict’s dependency but do nothing about it. By providing a needle exchange program, the addict’s life remains over the pit of destruction without any hope of rescue other than trying to reduce infections from blood-borne diseases. But as I have already mentioned, there is no guarantee how the new needle is used once the addict departs with it. How “public health authorities” referred to by the Post article can assert that needle exchange programs can “even lead drug abusers to treatment and recovery” makes no appeal based on reason. If the destructive habit is being sustained by “well intentioned programs,” how can the addict turn to the path of treatment and recovery? The craving that is an inevitable part of drug dependency will not vanish with new needles. I fail to see the logic in the arguments offered by the proponents of needle exchange as presented and only recognize an unsupportable claim. The addict remains enslaved to a self-destructive habit which robs him or her of human dignity and life. There is no charity or solidarity or mercy extended to this victim of chemical dependency, only abandonment is offered so that the dependency increases while the drug lords grow richer. Somehow this fact which ought to be inescapable escapes those who support needle exchange programs.

The Diocese then asserts that the Safe Point program “is based upon the church’s [sic] standard moral principles.” In theory, it may be possible to argue in the proper contexts “double effect” or “choosing the lesser of two evils” or, for some moralists, “proportionalism” or “consequentialism.” But these justifications do not apply here. [The latter two, i.e., proportionalism and consequentialism, are plagued with their own problems which I won’t go into today since they have not been raised by any of the moralists quoted in the Post article.] Why? I suggest these elements of “the church’s [sic] standard moral principles” cannot overlook the spectrum of the constitutive elements of both evils, i.e., drug addiction and infectious disease that is generated by drug abuse. In the final analysis, they are both evil in their own right, and it would be unsound to suggest that one is less problematic than the other. While they may intersect the life of the same person, one is not disproportionate to the other.

In the preparation of its article, the Post consulted with a variety of individuals in demonstrating the spectrum of views that favor and that object to needle exchange programs administered by the Church’s corporal works of mercy. I begin with the remarks attributed to Dr Edward Peters, who is both a canonist and a civil law lawyer. He has addressed the Albany Diocese exchange program at his own website, and I believe his in depth reflections need to be studied carefully because he is on to something vital regarding these issues and the debate surrounding them.

The Post then turns to three priests, yes, all are Jesuits, and yes, I am familiar with them and their work. My comments in no way reflect a lack of fraternal concern of or respect for them; however, on the issue of supporting needle exchange programs by relying on their versions of Catholic moral principles, I must state my disagreement and explain why. Unfortunately for Fr. Bretzke, a professor of moral theology at Boston College, the Post merely states that by relying on the “lesser evil” argument, the Diocese of Albany is relying, in part, on a Thomistic principle. But as I have stated earlier, the issues involved here are much more involved than giving “safe” needles versus risking infection from blood-borne diseases and assuming that one evil is lesser than the other. Let us understand the distinction clearly: the rational agent must conclude that he or she is not simply giving an addict a clean needle so that the addict will be free from a contaminated needle. As already stated, there is no guarantee that the new needle will be used only once and only by the addict to whom it is given. No one, including the addict, can predict if this needle will not be used again by the addict or anyone else. The hope that this will not happen is misplaced. In addition, the purported “lesser evil” is a complex one with many tentacles that ensnare the unwary and the unthinking. There is no promise of treatment and cure with a needle exchange program without something more being offered to assist the addict; the inexorable potential is that the chemical dependency without further intervention will therefore be sustained indefinitely. The other thing that will be sustained is the boldness of the dealers whose desire it is to keep the addict addicted. And with their business uninterrupted, will they not look for new markets to sell their poison? These are surely elements of the “Safe Point” program that lurk in the side wings but have not been addressed by the needle exchange proponents. Fr. Bretzke further states if: “you cannot reasonably expect a person to avoid the moral evil itself [i.e., illegal drug use], you can counsel them or mitigate the potential damage of their action and can even help them in doing that.” If the concern he expresses is only mitigation through needle exchange, his conclusion is wrong. If the needle exchange program were substituted with counseling and medical treatment that assists the addict in overcoming the chemical dependency, then yes, Fr. Bretzke would be on the correct track because the addict would then be given assistance to overcome the moral evil of illegal drug dependency.

The aspiration that “Safe Point” will decrease or eliminate infections of blood-borne diseases by the addict who exchanges the needle or by other addicts is wishful thinking but little else. Blood-borne diseases of any kind are an enormous problem, and deaths caused by such diseases are avoidable. Dependency on illegal, potent drugs is also an enormous problem, and it, too, causes deaths. So, is death by drug dependency or death by blood-borne diseases any different? No. But can we as a society and Church that cares about people through our exercise of Christian charity avoid both? To borrow from a high-level public official, “yes, we can!” And we can do so if we recognize that both are evils that can be avoided and, at the same time, acknowledge that one is not the lesser evil than the other.

Rev. Fuller, a well-known Boston physician, is quoted as saying, “If we know programs are scientifically validated to save lives, then condemning them can be more scandalous than the possibility of being seen to condone drug use.” I suggest that this “if” is a pretty big one. Let us be clear about the distinction he makes: does the program that is “scientifically validated” ensure that no needle from a needle exchange program is ever used more than once? He does not mention this. I wonder if there is an assumption that no needle is used more than once. It may be that the needle is used by the exchanging addict only once, but does the “scientifically validated” program take stock of the possibility, perhaps probability, that someone else may use the needle, since it is “almost new,” before it is exchanged? I wonder. Fr. Fuller does speak about a possibility elsewhere, but it is only in the context that there is a possibility that needle exchange programs may condone the use of drug use. No, the scandal is more than “possibly condoning drug use.” The scandal is that it, at a minimum, constitutes material cooperation with a distinct, but not lesser evil. I am prepared, along with Dr. Peters, to demonstrate that a needle exchange program is, in fact, formal cooperation with evil that can be and must be avoided. A needle exchange program’s officials cannot overlook the fact that drug addicts are destroying their lives while drug dealers and distributors and manufacturers of controlled substances increase their profits and are then encouraged to look for new markets. To provide needles in an exchange program and overlook these undeniable realities of drug addiction is a scandal of enormous magnitude that is independent of scandals of denying addicts clean needles in the hope of avoiding life-threatening blood-borne illnesses.

The Post also quotes Fr. James Keenan, also another professor of moral theology at Boston College. The article mentions that he “successfully pushed...a nondenominational association of scholars, to pass a resolution in support of needle-exchange programs.” I wonder what the resolution states and the reasoning used to justify it? Did those voting in favor of it consider the points I have addressed demonstrating the problems inherent in the justifications given for the Albany Diocese’s program? I agree with Fr. Keenan that the Church and her corporal works of mercy must be about love of neighbor, the common good, human dignity, and responding to human suffering. But, as I have demonstrated, mercy, love of neighbor, the common good, human dignity, and responding to human suffering are not well served when problems are intensified rather than remedied for those addicts whom the Church is attempting to help. I must unfortunately disagree with Fr. Keenan’s assertion that the Albany Catholic Charities “just gave us the answer.” They gave no answer but have, I believe, made a serious problem worse for the intravenous illegal drug user.

Let me conclude this lengthy posting with a reference to Dr. Germaine Grisez’s discussion in the Post article. There is far more involved with needle exchanges that just needle exchanges. I hope to have demonstrated that. Dr. Grisez states that the Church has a care-taker role in the betterment of the human person and should not be involved in needle exchange programs. By way of illustrating my point, let us say that the Albany Diocese were not involved in a needle exchange program but a project designed to help alcoholics. If the Diocese’s Catholic Charities offered counseling and medical treatment for the alcoholics, I think most would agree that this would be a meritorious project supported by the Church’s moral teachings and social doctrine. But what if, instead, the Diocese took a different tack and set up cocktail lounges that catered to alcoholics and operated under the project name “Safe Pint.” What would be the reaction then? You would be correct in labeling this project indefensible. So, too, is the needle exchange program.

“Safe Point” is not something to celebrate. It is not something to promote. It is not something to rationalize as the lesser of two evils. It is, ultimately, something to lament because of what it is and what it does to human life. Complicating the lament that makes it a tragedy is the fact that the Diocese of Albany, through its Catholic Charities, had and still has alternatives that do not require the cooperation—formal or material—with drug dependency. Sadly, and for the time being, the Diocese has not chosen the better and moral path. Let us pray that it will be corrected, and soon because human life, human dignity, the common good, and alleviating human suffering remain at risk.

RJA sj

A request to Michael P. for views on the "plausibility" of an argument

By Rick Garnett

in a recent post, Michael asked what a particular argument -- i.e., an argument that the facts recounted in a New York Times story describing the non-monogamous practices of some same-sex copules tell us something about the merits of the case for same-sex marriage -- would look like, and whether -- when presented -- it would be "plausible."

Rob Vischer then sketched out, in some detail, a possible argument. Michael thanked Rob for his post, noting that it was "helpful."

Well, it's been a few days -- don't leave us hanging, Michael . . . is the argument sketched by Rob plausible? If not, where and how does it misfire? Let's keep the conversation going . . .

What kind of citizens?

By Robert John Araujo, SJ

Thank you, Kevin, for your important posting on the North Carolina bishops’ request for assistance concerning the campaign to arrest the insertion into high school civics and economics textbooks that the Roe decision is one illustration of how the Supreme Court has upheld rights against “oppressive government.” I realize that this is the bishops’ phrase, but I must also point out an important question that their solicitation for assistance raises: what kind of citizens do the authors of the amendment to the textbooks think they will be educating? Another question follows: must government regulation of all citizens’ conduct be viewed as “oppressive”? Might government conduct be designed in some cases to preserve the common good by ensuring that the liberty of its citizens is ordered?

I shall offer a response to the latter questions first. If a government, state or Federal, makes it a crime to kill, maim, or injure another, it intrudes into the liberty of the feasor of these acts, but its intrusion is not oppressive. The criminal law and their attending sanctions restrict liberty so that liberty is and remains ordered and does not harm the public, and therefore, the common good. I submit that laws regulating abortion do not constitute oppressive government action. My argument, I suggest, is reinforced by the fact that the “privacy” claim that undergirds Roe has since been abandoned by abortion advocates and courts and has been substituted with alternative claims such as “equality.” Do the textbook revisers understand this? Moreover, are they willing to concede the fact that the house-of-cards foundation upon which Roe is built has already collapsed? This would be important to the education of the students who will be reading these textbooks.

This brings me to the first question I have posed: what kind of citizens do the authors want to educate? The young men and boys reading the text will be further encouraged into irresponsible acts when temptation comes their way knowing, falsely, that the “oppressive government” cannot tell them would to do in the physical expressions of their sexuality. And, young women and girls will not necessarily be informed that their protection from “oppressive government” gives them a license to destroy another human. Furthermore, if both of these constituencies of students are led to believe that there exists an unqualified “right to abortion” and protection from “oppressive government,” and all of them exercise this “right,” will there be any future citizens in North Carolina attending schools in thirty years? In fifty years? In a hundred years? And, if there will be no future citizens in these schools, who will read these textbooks then?

RJA sj

NC Bishops Seek Assistance with Textbook Issue

By Kevin P. Lee

The North Carolina Bishops are requesting assistance with a proposeed insertion into the high school Civics and Economics textbook. As explained by the Raleigh Diocese:

The proposed text asserts that Roe v. Wade, the 1973 decision by the U.S. Supreme Court that legalized abortion and struck down state and federal laws that regulated and limited access to abortion, is an example of how the Supreme Court has upheld rights against oppressive government. The implication of this proposed text is that opposition to Roe v. Wade is wrong.

Use this form to provide feedback. [email protected]. (instructions on form) The deadline for comments has been extended to March 1. While comments of NC residents are sought, the opinions of Constitutional law experts are particularly relevant.