Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, April 7, 2009

Gay Marriage and Religious Liberty

By Thomas Berg

With the recent developments in Iowa and Vermont, gay marriage has now been instituted in four state supreme court decisions and one legislative vote (and civil unions are authorized in other states).  One of the court decisions has been overturned narrowly by the voters, but the ease of California's amendment-by-initiative process suggests that may be unlikely to happen elsewhere.  In none of these instances did the decisionmaker simultaneously resolve the significant questions that arise about the effect recognizing gay marriage will have on religious liberty.  Courts, of course, can't do so; they only decide the case before them and leave further questions for another day.  Vermont's bill does not address most of the religious-liberty questions.

The primary religious-liberty concern is not the one dealt with in the Vermont statute: that objecting clergy or houses of worship would have to perform or host same-sex marriages.  That prospect seems extremely unlikely anyway.  Attacks on the tax-exempt status of traditionalist churches are more likely, but still doubtful.  But recognition of gay marriage will definitely make it more likely that religious schools and social services, even those with religious content throughout their programs, will be punished if they refuse to hire openly gay people as teachers or counselors or to pay benefits to their partners.  It may do this in several ways:  (1) Most obviously, directly triggering the obligation to pay spousal benefits.  (2) Depriving religious organizations of the (sometimes successful) argument that they discriminate against all extramarital sex and not on the basis of sexual orientation.  See CLS v. Walker, 453 F.3d 853, 860 (7th Cir. 2006).  (3) Strengthening the gay-rights argument that there is a compelling governmental interest against sexual-orientation discrimination, overriding a constitutional religious freedom claim, in virtually every context -- not just marriage but also hiring and other associational decisions by private religious organizations.  See, e.g., Bob Jones Univ. v. U.S. (allowing stripping of tax exemption on ground that prohibition of race discrimination in numerous other contexts shows a "firm national policy" and a compelling, overriding interest).

It may be time for defenders of traditional opposite-sex marriage to shift some attention from trying to stop gay marriage to trying to secure religious liberty protections, at least in states where there is a significant prospect that the courts or the legislature will recognize gay marriage.  Once that decision of recognition has happened, the traditionalist religious organization is on much weaker strategic ground in seeking protection to continue to pursue its vision of marriage in its employment and other decisions.  As Doug Laycock suggests in the conclusion to the excellent book of essays Same-Sex Marriage and Religious Liberty, there is opportunity at the front end to secure legislative compromises in which any recognition of same-sex marriage is accompanied by significant exemptions.  The exemptions should cover not just churches refusing to perform ceremonies -- symbolically important, in practice not a live issue -- but also religious schools and social services in their employment, leadership, and membership decisions.  But if traditionalists fight all the way to the mat on stopping gay marriage altogether, they may lose opportunities to secure such protection.

Tom

Herein of Intellect/Will, Reason/Prejudice, Provocations, and Civility

By Michael Perry

Sometimes, when provoked, I say things I later regret saying—typically things I don’t even mean.  (I envy you if you don’t often have that experience.)  I like myself least when I realize that, once again, I have succumbed in that way--whether in response to my wife, my children, my friends, or others with whom I have a much less intimate relationship.

Thanks to a gentle, constructive message from an MOJ-reader--with whom I often disagree, but whose important work I greatly admire, and whose good friendship I greatly prize--I realize that I have recently succumbed here at MOJ.  (Actually, the painful realization began to dawn even before this friend’s message arrived.)  Let me explain.

Here is the content of one of my recent posts:

In the immediately preceding post, my fellow Georgetown alum Robert Araujo criticizes the Iowa gay marriage decision--which was unanimous, and in which the court's opinion was written by the Republican-appointed chief justice--by deploying the distinction between "intellect" (good) and "will" (bad). I applaud the decision, and I do so in terms of a different distinction:  between "reason" (good) and "prejudice" (bad).

Now, here is what I should have said:

In the immediately preceding post, my fellow Georgetown alum Robert Araujo criticizes the Iowa gay marriage decision--which was unanimous, and in which the court's opinion was written by the Republican-appointed chief justice--by deploying the distinction between "intellect" (good) and "will" (bad).  That distinction, in the context of Robert’s post, seems to me altogether question-begging and self-serving.  One could just as easily—but no less question-beggingly and self-servingly—deploy a different distinction in praise of the decision:  between "reason" (good) and "prejudice" (bad).  Neither distinction helpfully advances the conversation.  Indeed, both distinctions subvert the conversation.

I am sorry I said what I had to say the first way rather than the second.  In being frank with my interlocutors here at MOJ and elsewhere, I need to do all that I can—of course, we all do—to nourish the conversation, not subvert it.

In Reasoned Defense of Traditional Marriage

By Michael Scaperlanda

In response to my post, Ryan Anderson sends the these helpful links (here, here, here, and here) providing reasons, including the interests of children in having a mommy and a daddy, for defending traditional marriage. 

From the Iowa Supreme Court to the Vermont Legislature

By Michael Perry

April 7, 2009

Vermont Legalizes Gay Marriage

By THE ASSOCIATED PRESS

Filed at 11:17 a.m. ET

MONTPELIER, Vt. (AP) -- Vermont has become the fourth state to legalize gay marriage -- and the first to do so with a legislature's vote.

The Legislature voted Tuesday to override Gov. Jim Douglas' veto of a bill allowing gays and lesbians to marry. The vote was 23-5 to override in the state Senate and 100-49 to override in the House. Under Vermont law, two-thirds of each chamber had to vote for override.

The vote came nine years after Vermont adopted its first-in-the-nation civil unions law.

It's now the fourth state to permit same-sex marriage. Massachusetts, Connecticut and Iowa are the others. Their approval of gay marriage came from the courts.

Post-Metaphysical, Michael Perry, and the Limits of Blogs

By Steve Shiffrin

I too am interested in what Michael Perry means when he says that he is a “post-metaphysical, apophatic  Catholic/Christian.”  It is mainly the post-metaphysical aspect that I am curious about.  I take apophatic  to mean that the nature of God is a mystery.  

But I would like to emphasize that I do not believe that any member of this blog is required to answer the questions of others. It is not just because we all have busy lives and more pressing intellectual interests than those pressed upon us by someone else on the blog.  I share Michael’s view that many of us inhabit different theological universes and those differences are so great that the potential for dialogue is limited. As some others have mentioned, I think this is especially true in the context of a blog the form of which among other things tends toward debate (sometimes heated and nasty) rather than dialogue in part because the person on the other side is not present when the words are typed and in part because the public character of the exchanges lead to defensive reactions. These tendencies are accentuated by the well known capacity of religion to inspire passionate defense of positions rather than open-minded exploration and tempered by the desire to cultivate Christian virtues.

Subsidiarity and the Financial Crisis

By Elizabeth Schiltz

Today's article of the day on the First Things "On the Square" site is my essay "Subsidiarity and the Financial Crisis." In it, I discuss one of the aspects of the debate about legislative responses to the financial crisis that is not receiving much attention in the press coverage of the financial crisis -- federal preemption of state consumer protection laws.  However, preemption questions are at issue in an important case currently before the Supreme Court, Cuomo v. Clearinghouse, and are one of the reasons that the two Republican members of the Congressional Oversight Panel on Regulatory Reform withheld their support from the Panel's recent Special Report on Regulatory Reform, which recommended abolishing federal preemption.  [Incidentally, I highly recommend that report for a succinct explanation of the regulatory failures leading to the current crisis; the dissenting minority includes its own report, providing a nice set of perspectives on these issues.]

In my First Things essay, I argue that the principles of subsidiarity and solidarity might be useful in analyzing this issue.  I write:

In applying the principle of subsidiarity, we are asked to give preference to governance at the most local level at which a government’s purposes can be achieved. To the extent that the government’s purposes in preventing future financial crises include assessing the appropriate limits to greed, or setting an appropriate line between the “hard sell” and outright fraud, perhaps this could be achieved more effectively at the state level, even at the cost of the uniformity and efficiency available at the federal level. The faces and tactics of the greedy and the fraudulent look different in urban areas with large minority communities than in suburban areas with largely white populations. In the urban areas, subprime loans tended to be pushed on borrowers by lenders anxious to lend at rates that are higher than market justified. In the suburban areas, in contrast, mortgage fraud was more likely to involve participation by borrowers themselves, who inflated their incomes and accepted unjustified appraisals. This sort of a differentiated understanding of the different categories of culpability is easier to achieve at the local level. Similarly, judgments about the point at which legislative curbs on greed start to compromise the vitality of credit markets could vary in different states. The way in which greed and fraud affects its victims is also subject to regional variation, perhaps explaining why local enforcement officials have proven to be more adept at recognizing predatory lending earlier than federal officials.

What state governments offer their citizens that is not so readily available at the federal level is the more intimate contact that fosters solidarity, something that the Church insists must moderate the delicate application of subsidiarity to economic activity.

If Women had been Bishops

By Elizabeth Schiltz

I realize that the conversation has shifted to same sex marriage, but I'd like to get back to Michael P's original comments in connection with the recent NYT article about the clergy sexual abuse scandal:  "[These are the men--the men!--whose insights regarding the complexity of human sexuality we are expected to genuflect before.  Gimme a break.  If women had been bishops--indeed, if mothers had been bishops--would this have happened?]"

I've often thought the same thing.  If there had been women with authority in the Church in most of the meetings between bishops and lawyers as the allegations of sexual abuse began to surface, I do think that things would have been handled differently.  I do not think that those women would have needed to be priests, though, to be women with authority in the Church.  Personally, I can accept that there might be a sacramental role in the Church that is uniquely suited to men.  However, I do not understand why such a unique sacramental role should, in itself, preclude women from holding more positions of authority in the Church, as either consecrated or lay women.

I think that if there had been women with authority in the Church in those early meetings between the bishops and the lawyers, and most particularly if those women had NOT, themselves, been priests, then there would have been some people in those rooms who could have identified more with the victims than with the priests.  And I DO think, as Michael P. suggests, that that identification would have been intensified if some of those women in the room were also mothers.  If those women had positions of authority in the Church, I do think this whole scandal would have been handled better.

Monday, April 6, 2009

A clarification

By rstith

One reader thought i was insulting Micheal P. I'm sorry to have given that impression. I in no way wished to denigrate either his arguments or his honesty. Rather, I had gotten the impression from his prior statements like  "I am a post-metaphysical, apophatic Catholic/Christian."  that as a matter of intellectual judgment he might have come to the conclusion that truth does not exist, or at least is not accessible to us.   If that were in fact his view, and I did not reach a conclusion on this point, I would not see how  lengthy conversation could be fruitful. ("De gustibus ..." and all that sort of thing.)

The Profound vs. the Muddy

By rstith

All that Micheal P. has brought up is worthy of deep consideration and reasoned conversation if put forward in the spirit of a genuine search for truth that is in principle accessible, at least in hope (as Josef Pieper put it). None of it is worth talking about if it is not put forward in that spirit.

Same-Sex Couples as Parents: Passages for Thought

By Michael Perry

[This is just the beginning ... a kind of prolegemenon to what is to come.]

The reason produced for condemning the opinion that the earth moves and the sun stands still is that in many places in the Bible one may read that the sun moves and the earth stands still.  Since the Bible cannot err, it follows as a necessary consequence that anyone takes an erroneous and heretical position who maintains that the sun is inherently motionless and the earth movable.

With regard to this argument, I think in the first place that it is very pious to say and prudent to affirm that the holy Bible can never speak untruth--whenever its true meaning is understood.  But I believe that nobody will deny that it is often very abstruse, and may say things which are quite different from what its bare words signify.  Hence if in expounding the Bible one were always to confine oneself to the unadorned grammatical meaning, one might fall into error.  Not only contradictions and propositions far from true might thus be made to appear in the Bible, but even grave heresies and follies. . . .

--Galileo Galilei, Letter to Madame Christina of Lorraine, Grand Duchess of Tuscany (1615), in Discoveries and Opinions of Galielo 175, 181 (Stillman Drake tr. 1957).  See Ernan McMullin, "Galileo on Science and Scripture," in Peter Machamer, ed., The Cambridge Companion to Galileo 271 (1998).

The two types of authority that concern us here (authority to govern and authority to teach) are, of course, distinct and can be discussed separately.  In the Roman Catholic Church, however, we find that they are often intermingled, and sometimes even confused with each other.  Over the centuries governing power has often been used (and misused) to bolster teaching authority.  Such an approach can easily amount to little more than "we are right because we are in charge" or "we give orders, not explanations."  Bernard Hoose, "Authority in the Church," 63 Theological Studies 107 (2002).  See also Bernard Hoose, Authority in Roman Catholicism (2002); Bernard Hoose, ed., Authority in the Roman Catholic Church (2002).

Some Catholics concede that the church admits the principle of doctrinal development, but they accuse [John] Noonan, in Richard John Neuhaus's words, of too often equating development with "a change, or even a reversal, of doctrine."  At a recent meeting of the Catholic Common Ground initiative, Noonan and theologian Avery Dulles had a polite, but sharp, exchange on the subject, with Noonan again insisting that "the record is replete with mistakes--the faithful can't just accept everything that comes from Rome as though God had authorized it."  John T. McGreevy, "A Case of Doctrinal Development:  John T. Noonan--Jurist, Historian, Author, Sage," Commonweal, Nov. 12, 2000, at 12, 17.  See also Thomas P. Rausch, SJ, Reconciling Faith and Reason 45-46 (2000):  "A presentation of the Catholic tradition able to acknowledge not just development, but also change in the doctrinal tradition is a more honest one."  Cf. Robert McClory, Faithful Dissenters:  Stories of Men and Women Who Loved and Changed the Church (2000).

Francis A. Sullivan, SJ, a professor of ecclesiology at the Pontifical Gregorian University in Rome from 1956 to 1992 and now a professor of theology at Boston College, writes:  [T]he hierarchical structure of the church is such that there have always been those who were authorized to act and speak "in the name of the church," and in her name have proclaimed the church's doctrine, enacted its laws and determined its official policy.  The I.T.C. text recognizes the possibility that what was done "in the name of the church" could have been done "in contradiction to the Gospel." . . .  [O]bviously, it is only members of the hierarchy who have been authorized to act and speak "in the name of the church," and only they could be meant as those who, in doing so, have acted in contradiction to the Gospel. . . .  [Those] things in the history of the church that call for repentance and a request for forgiveness are the official policies and practices that were established or sanctioned by those who were authorized to act and speak in the name of the church, but that were objectively "in contradiction to the Gospel." . . .  What is needed is the frank recognition that some official policies and practices of the church have been objectively in contradiction to the Gospel and have caused harm to many people.  Francis A. Sullivan, SJ, "The Papal Apology," America, April 8, 2000, at 17, 19, 22.

A principled rejection of gay sexuality, whether put forward by the church or any other sector of society, is morally indefensible.  It has the same status today as arguments for the inferiority of women.  To remain stuck in that position, as the church for the time being seems likely to do, is not only unfortunate:  it makes the church collaborate in continuing forms of domination.  To put it even more strongly:  it makes the church collaborate in sin.  Robert N. Bellah, "Foreword" to Richard L. Smith, AIDS, Gays and the American Catholic Church xii-xiii (1994).

If one doubts whether real communion implies dissent, imagine a church where dissent had been rendered unthinkable, impermissible, or inexpressible.  Would such a church be likely to resemble the interpersonal, vital, ever-deepening, always outstretching encounter of hearts and minds that is communion?  Or would it be more likely to resemble the bureaucracy of a government, the conformity of a corporation, the discipline of an army, of even the ideological unanimity of a totalitarian political movement? Margaret O'Brien Steinfels, "Dissent and Communion," Commonweal, Nov. 18, 1994, reprinted in Patrick Jordan & Paul Baumann, eds., Commonweal Confronts the Century:  Liberal Convictions, Catholic Tradition 324, 326-11 (1999).

These modern sensibilities affect the way in which we think about the institutions of Christianity, whose vocation clearly sets them apart from bureaucratic structures and from the mechanisms of standardization which are the province of large public administrations.  The nature of Christian institutions ought to favor relationships based on equality and brotherhood/sisterhood and to value attitudes that welcome and liberate. . . .

The democratic spirit builds a new relationship to the truth.  The Church is to proclaim the Gospel in a relevant way.  It is not sufficient to insist that the church is not a democracy, even if that statement is correct.  Integration into the Church in a democratic society leads to a new relation to authority and a different manner of proclaiming the Gospel.  What is required is a certain degree of participation and a careful listening to all the voices that want to be heard.  Nothing can be imposed simply by authority:  there is no single word.  [Rien ne s'impose d'autorit‚ et il n'y a pas de parole unique.]  From a statement issued in 2000 by the Assembly of (Catholic) Bishops of Quebec, which appears pages 1-3 of the Winter 2000 issue of the Canadian journal The Ecumenist.  Some more:

For our contemporaries, truth may come from tradition, but it is also the fruit of their own work of exploration.  It is received, but it is also discovered.  It may remain beyond us, but it comes to us by way of the subject's own activity on a personal journey.  In this view, tradition and teaching may have a role to play in a person's pursuits, in the quest of a subject.  Tradition and teaching are not imposed as a kind of final or definitive word, but function as memory, reference points and markers or as a word which questions and confronts one's own discoveries, a word which evokes a response from the subject.  Statements from tradition are critiqued before being taken up by the subject.  Tradition no longer represents a catalogue of timeless, ready-made answers from which one has only to pick and choose. . .

Tradition is not first and foremost a source for answers.  It puts us in dialogue with the quests and pursuits of individuals from the past, who, in given situations, produced a given faith-filled meaning.  Conceived of in this way, tradition no longer elicits a negative response from many of our contemporaries who see in it something other than an authority which short-circuits our own attempts at discovery by providing, in advance, answers to all our questions, both now and in the future.  Better yet, understood in this way, tradition allows the subject to shift her centre of concern outside the self and enter into a fruitful dialogue with other points of view which find expression in tradition.

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