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.

Monday, April 6, 2009

Will v. Intellect and SSM

I've been trying since this morning to find some time to respond to Robert Araujo's post of this morning, criticizing the Iowa decision invalidating a ban on same-sex marriage.  I have difficulty understanding the distinction he draws between will and intellect as saying anything other than it is will he disagrees with the arguments raised in the decision.  In my view, the support he gives for his distinction is more than a little questionable.

His post suggests two things he labels products of the will rather than products of reason.  The first is his criticiam of the court's "conclusion that same-sex couples foster the same wholesom environmnet as opposite-sex couples."  It is not clear why he calls that conclusion a product of will rather than reason except for his disagreement with it.  I'm guessing it has something to do with his suggestion that the research relied on by the court is not "specified or identified."  Yet, interestingly, his subsequent post replying to Rob's response to his earlier post offers no evidence for why "it is clear from [his] point of view, [that] same-sex couples cannot offer, in spite of all best efforts, what the opposite-sex couple can to children."  I'm finding it difficult to understand why his conclusion here is any more a product of intellect (or less a product of will) than the court's conclusion on this issue.

His second piece of evidence is the court's discussion of "Religious Opposition to Same-Sex Marriage."  He characterizes the court as suggesting that "not all religious views are impermissible."  However, the court does not say, as he suggests it does, (a) some religions oppose; (b) religion is not a permissible basis; but (c) some religions reach the opposite conclusion and we rely on those.  Instead, the court says (a) some religious groups oppose; (b) some relgious groups reach the opposite conclusion; and (c) this contrast of opinions supports not using religious based rationales to test a statute's constitutionality.  I agree that Robert's characterization of the opinion makes it sound silly; it is, however, not an accurate characterization.

 

Prejudice Exemplified (in support of Fr. Araujo)

One reason for opposing adoption by same-sex couples is this: Virtually all of us agree that at most only a small minority of persons are genetically predisposed to homosexuality. Ten percent or less is commonly accepted. So the chances are overwhelming that any child placed with a same-sex couple is going to turn out to be a heterosexual in a family where the only sexual role models are homosexual. This extremely likely incongruity does not mean that every adoption by a same sex couple is worse than any possible adoption by a different-sex couple, but it is at least a negative factor, possibly a strong one. Of course, the homosexual child growing up with heterosexual parents may be in a similar plight, but this will happen far less often. (If a “gay gene” or the like could be identified in an infant before adoptive placement, this objection would clearly disappear, for in that case each child could be matched with the appropriate sort of parents.)

 

If social science research can find no negative effects where kids grow up without congruent models for sexual relatedness, for themselves and for their potential partners, then I count that as clearly prejudiced social science research.

Prejudice Exemplified?

Just a quick response to Michael P.'s latest post with an understanding that my points need further elaboration.  If others have the facts at their finger tips, please email.  Four points:

1.  Is Michael P. correct on the facts?  Are there, in fact, studies that indicate that the male/female parenting unit is ideal over other forms of parenting arrangements?  Have some courts ignored or dismissed as irrelevant these reports?

2.  To examine whether the traditionalist is "prejudice exemplified," don't we need to know the biases and prejudices of those who funded and conducted the studies to which Michael P. points?

3.  To examine whether the traditionalist is "prejudice exemplified," don't we need to know what the social scientiest studying the parent/child relationhsip considered "quality parenting" and "good for the child."  The questions asked likely effect the conclusions drawn.

4.  To examine whether Michael P. is correct that the traditionalist is "prejudice exemplified," don't we need to know the biases and prejudices of the court writing the opinion?

As Michael P. says, "facts are pesky things," but rigorous engagement with the facts requires a lot more thans we have so far, IMHO.  I vote for not prematurely shutting down the conversation!

Prejudice Exemplified

Robert Araujo writes that when a child is a candidate for adoption, an opposite-sex couple can serve as fitting parents but that a same-sex couple cannot. ("But, again in my view, it is impossible for the same-sex couple to provide this substitution.")  I have lost count of the number of courts that have looked closely at the social-scientific data and concluded that there is not even a "rational basis" for the proposition that same-sex couples are inferior to opposite-sex couples in terms of the quality of their parenting.  This is not theology.  Facts are pesky things.  Take a stand against extending the benefit of law to same-sex unions, if your moral theology leads you to do so.  But don't pretend that the claim about the inferior quality of same-sex parenting is anything more than a prejudice.

One's point of view...

I would like to thank Rob for his critique of my last posting. As you say, Rob, a lot depends on one's point of view regarding this and other hotly debated issues. I think it is clear that from my point of view, same-sex couples cannot offer, in spite of all best efforts, what the opposite-sex couple can to children. The ideal situation from my point of view is that the child's natural parents have the primary care for raising their child. I also realize that this may not be possible in cases where one of the parents predeceases the child. But at least one of the birth parents remains to assist the child in his or her development. 

I further acknowledge that the child may be abandoned by his or her parents; moreover, in the case of a single mother, the child may be offered for adoption early in the child's life. So, I am most grateful that when these situations occur, an opposite-sex couple may wish to adopt the child. Their adoption becomes a rational and welcome substitute in my view that provides the child with a natural alternative to what has been lost. But, again in my view, it is impossible for the same-sex couple to provide this substitution. 

Rob mentions that gender roles have become "fuzzier." Perhaps they are "fuzzier" in some views, but they are not in mine.

RJA sj 

Bishop Gene Robinson at Emory Law

Last week, Bishop Gene Robinson spoke at Emory Law, in a lecture sponsored by the Center for the Study of Law and Religion.  John Witte, who directs the Center, introduced Bishop Robinson, and Mark Jordan, formerly at Emory's Candler Divinity School but now at Harvard Divinity, asked Bishop Robinson some questions.  The title of Bishop Robinson's lecture:  "Why Religion Matters in the Quest for Gay Civil Rights".  Some MOJ readers may be interested in the web cast, here.

Will vs. Reason and SSM

I think that judicial invalidation of same-sex marriage bans may actually be a disservice to the cause of SSM by allowing opposition to SSM to focus on political legitimacy concerns, rather than the straightforward merits of the cause.  That said, I'm not sure how helpful Fr. Araujo's reason vs. will criticism is because, as Michael P. points out, those labels become very slippery depending on one's view of the underlying merits.  Here is the crux of Fr. Araujo's argument and, in my view, the crux of the entire SSM debate:

While it is true that marriages of the opposite-sex parents of children (who are crucial for the children to be) break up and that many children are born out of wedlock, these facts do not deny the reality that the couples of the opposite sex can do something that couples of the same-sex cannot: i.e., make children. Children need their fathers and their mothers. The fact that this does not always occur because of the dissolution or the absence of marriage does not make the result of single-parent households a desirable one. To assume, therefore, as the majority conclude, that children will be well-served by a same-sex couple which has not brought the child into this world and can provide someone else’s offspring with everything that the child needs is presumptuous. While the same-sex couple may labor very hard at trying to duplicate what the opposite-sex couple can provide on many fronts if they remain committed to one another and the child upon whom they conferred life, they cannot because for the same-sex couple, it is factually impossible.

It could be "factually impossible" for two reasons: 1) because the same-sex couple are not the biological parents of the child; or 2) because both genders are not represented in the same-sex couple.

The first possibility seems to be a very difficult, even dangerous, argument to make to the extent that it marginalizes adoptive parent-child relationships.  Would anyone (especially pro-life advocates) want to tell a birth mother or prospective adoptive parents that the fact of "making the child" is meaningfully relevant to the quality of the care-giving relationship?  I have never observed any distinctions in the quality of the parenting experienced by members of my extended family by birth and members by adoption, and I'm guessing that other families would affirm that observation.

The second reason is a much stronger possibility, in my view, but it is very rarely fully articulated.  It is one thing to recognize that, yes, women as mothers tend to bring different caregiving qualities to the family than men as fathers do, and that this is a good thing.  But as socially grounded gender roles become fuzzier, our confidence in biologically grounded distinctions between the caregiving functions of men and women has become a bit shakier (as has our confidence in the constitutional validity of such characterizations).  

The strongest argument against SSM seems to be, "Look, we're messing with the definition of a very important social institution that has served us well for many years.  Because the idea of two men or two women beings parents together is relatively new, we do not have enough empirical data to say whether children will be better or worse off.  We should not take that risk."  But if people acknowledge the risk, count the cost of excluding an entire class of committed couples from the stabilizing and identity-affirming institution of marriage, and conclude that gender differences are no longer a sufficient basis for that exclusion, does that really represent the triumph of will over reason? 

One further thought: I'm not sure that conservatives should always be afraid of "will" as a prime mover in judicial or political discourse, especially when social "progress" is so frequently hitched to the exercise of enlightened "reason."  Arguments based on history seem to be subtle appeals to will.  United States v. Reynolds (the polygamy case) reads like a discourse grounded in will.  Niebuhr, I would guess, might in some cases be a fan of will over reason.  Isn't it a question, at least in part, of whether the will is tethered to social change or social continuity? 

Why be Catholic?

As probably seems evident by now, Michael P.'s recent posts have raised many questions for me.  In his blog letter to me, he said that he does not "interpret the 'apostolic succession' narrative literally."  Later he gives us an insight into his theology:  "I am a post-metaphysical, apophatic Catholic/Christian."   

Before I state this series of questions, I need to attempt to carefully articulate what I am NOT saying or suggesting.  I am not saying or suggesting that Michael P. is not Catholic, is not Christian, is not the right kind of Catholic or Christian, or should not be within our community.  It is not my position to put such labels on others or make such judgments about them.

My questions are sincere and geniune - I truly want to attempt to understand Michael P.'s theological universe. So, here goes.  Michael P.:

What do you mean when you say that you do not interpret apostolic succession literally?

What is the source of Catholic/Christian unity in the absence of apostolic succession?


What do you mean by a post-metaphysical Catholic/Christian?

What do you mean by an apophatic Catholic/Christian?

Is Episcopalian bishop Shelby Spong representative of (maybe a leader of) post-metaphysical apophatic Christianity?

What keeps you in the Catholic Church? Why not join a Christian community (the aforementioned Episcopal Church?), which more closely (I think?) shares your theological universe?

Michael, thank you in advance for your answers.

Pax, Michael S.

Dialogue and the Closed Mind

I was deeply saddened and disturbed by parts of Michael P.'s blog letter to me.  Michael P. wrote: 

Michael [S.], you and I live in very different theological universes.  I'm guessing, for example, that you interpret the infancy narratives literally.  I do not.  Anymore than I interpret the "apostolic succession" narrative literally.  I doubt it would be productive for you and me to try to bridge the chasm between those universes. 

I wasn't engaged--nor do I have any interest in engaging in--a dialogue with those bishops who were sinfully complicit in the immoral, ugly, outrageous, disgusting abuse of children.

I see no more need to argue *for* women priests and bishops--or *for* married priests and bishops--than I see a need to argue *against* the proposition that the earth is flat.  (Or *against* the position of young-earth creationists.)  What a pointless, tiresome endeavor that would be. 

Michael P., if I am reading these sentences correctly, I draw two conclusions.  First, you are not interested in dialogue - whether with me, other members of the blog, the hierarchy, or others - on many of the issues that have presented themselves in our day.  With me, it wouldn't "be productive."  With the bishops, their sin seems to preclude dialogue.  And, with respect to some of the issues (human sexuality and who ought to be eligible for the priesthood), you suggest that dialogue would be "a pointless, tiresome endeavor."  Second, you seem to be incredibly close-minded on these issues.  With respect to gay marriage, you label those who oppose it as "prejudiced" without (so far) giving reasons for your conclusion.  And, if I read you correctly, those who think that women are theologically ineligible for the priesthood and those who for prudential reasons favor a celibate priesthood (note, Michael, that I am not taking a position on either of these issues because those questions are above my pay grade) are no different than people who believe the world is flat.  By your analogy to the flat earth, I take it that you are not open to the possibility that the magisterium, as it presently understands these issues, could possibly be right.

Is the world we inhabit so post-modern and post-rational that two people (the two Michael's in this case)who claim the same Church as their home cannot engage in rational productive dialogue about the important issues of the day? 

If I have misinterpreted anything you have said Michael, please correct me.  If not, I have an honest and sincere question:  What issues are worth the attempt to engage in productive dialogue with people who inhabit very different theological universes from your own? 

News about the D.C. school-choice program . . .

. . . in the Washington Post, here.  I want everyone to picture me wagging my finger, angrily, at those in Congress and in the Administration who are trying to kill the D.C. experiment (and, in so doing, undermine the hopes of poor children in D.C.).  Of course, they have to kill the program, in order to prevent studies like the one described in the article.