Over the past several days several of our friends at Mirror of Justice have offered news and insights about Varnum v. Brien, the Iowa same-sex marriage decision. I am grateful to them for their contributions. I most likely agree with the perspectives of some contributors who have spoken and disagree with those of others. But this is not why I write today.
The previous discussions about Varnum has provided the catalyst for my further thought on the processes of law-making and case deciding that raise questions about marriage and other issues (hot button) such as abortion, embryonic stem cell research, and euthanasia, to mention just a few. Varnum, as you may recall, was the opinion of a unanimous state supreme court invalidating on constitutional grounds the Iowa statute limiting civil marriage to the union of one man and one woman.
I have pondered the court’s opinion and find that it represents one way of approaching law that may well represent the prevalent method of law teaching today, i.e., the primacy of the will over the intellect. As one law teacher who is also committed to the development of Catholic legal theory, I find that this approach that emphasizes the will and reduces or eliminates the role of the intellect disturbing. In essence, the will as the basis of law, its making, and its resolution of disputes reflects whatever is the whim or fancy of the law maker or of those in charge of the legal mechanisms. The will’s close relative is totalitarianism. Varnum is punctuated with the exercise of the will and neglects the exercise of the intellect. For example, footnote 26 addresses the question of whether the interests of children are served equally well by same-sex “parents” as by opposite-sex parents. The footnote states in its entirety:
The research [not specified or identified] appears to strongly support the conclusion that same-sex couples foster the same wholesome environment as opposite-sex couples and suggests that the traditional notion that children need a mother and a father to be raised into healthy, well-adjusted adults is based more on stereotype than anything else. In any event, we do not address whether there is a rational basis for the marriage statute, as the sexual-orientation classification made by the statute is subject to a heightened standard of scrutiny.
Would that footnotes like this be subjected to the standard of the intellect rather than that of the will. I wonder if it is a stereotype to conclude that for children to be, it is necessary for them to have a mother and a father? The intellect says this is not a stereotype but a reality of science and human nature, but the will can offer whatever it wishes to the contrary. 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. But the will, not the intellect, can declare otherwise.
Another illustration of the will, not the intellect, being the driving force of this opinion is the court’s discussion about “Religious Opposition to Same-Sex Marriage” in part I. The justices agree that the state (the county) did not raise religious issues in the case. However, the court presumes that religious opposition to same-sex marriage was a motivation for the law; therefore, it challenges (attacks) “the religious undercurrent propelling the same-sex marriage debate.” The court concludes that any religious “reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage.” Ironically, the court then proceeds to identify with some satisfaction those “religious” views that do support the result that the state statute is flawed. Apparently, not all religious views are impermissible when the will rather than the intellect is at the helm of the legal system. As the states, “other equally sincere groups and people in Iowa and around the nation have strong religious views that yield the opposite conclusion.” This critique of some religious views but not others is analogous to Justice Stevens’s criticism in Webster v. Reproductive Health Services wherein he points out in his footnote 16 that some religious perspectives do not agree with the Catholic perspective but, nonetheless, tacitly concur with the view he posits. If it would be wrong to adopt the Catholic perspective as he asserts, why is it not equally wrong to adopt other religious perspectives that happen to coincide with the views of Justice Stevens? Again, the will rather than the intellect is operative.
So, what should Catholic legal theorists make of this, particularly if they are teachers and are attempting to pass on the majesty of the law to succeeding generations of lawyers, judges, legislators, and administrators? Essentially this: the exercise of the will leads to justifying whatever the law-maker wants or is pressured to want. In contrast, the exercise of the intellect provides the mechanism to ensure that the law, its making, its meaning, and its enforcement do not reflect the whim of the most powerful but manifests the truth of the matter and the justice that is due to those whose lives are affected by the law, its administration, and the resolution of disputes over which it presides.
In short, Varnum is an important illustration of what can occur when the will rather than the intellect is in control of the legal institutions of a society that insists that it is a democracy but is quickly morphing into something more akin to a totalitarian state.
RJA sj
Thank you for your response.
You ask: "{A]re you suggesting that women are sinless?" Um, no. Did you think I might be? You also ask: "Or, are you suggesting that women sin differently than men so that
while we might have avoided the abuse scandal, our human frailty
(including the frailty of the bishops) would have manifested in other
ways?" Not that either. Although, for all I know, the brokenness of women may express itself differently, in general, than the brokenness of men. I've not thought about that (interesting) issue.
Next, you ask: "Does the type of civility in dialogue that we are attempting to achieve
on this blog extend to civility toward the successors to the apostles?" "[T]he successors to the apostles"? Michael, 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.
Next: "Your post reads more like a rant against authority rather than a
reasoned argument for - what - women priests and bishops? married
priests and bishops? a change (development?) in the doctrine regarding
human sexuality? All three are implicated in your two line opening but
you don't develop any of he arguments." 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. "[A] rant against authority"? What "authority"? Again, Michael, we inhabit different theological universes. Your theology seems to me to be very much like the theology of my mother (whom I loved, and love, dearly). My theology is rather different: for what it's worth--probably not much--I am a post-metaphysical, apophatic Catholic/Christian.
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. Moreover, after all that has been said in the theological literature--by Mark Jordan and many others--it would be otiose for me to argue against the magisterial position on, say, contraception or homosexuality.
Maybe, Michael, I should just let you say what you have to say from your theological perspective. And I will say what I have to say from my different theological perspective. I won't wag my finger in your face. And maybe you will think better of wagging yours in mine.
Be well.
Michael
With Michael P., I pray that God help us, that He guide our leaders, giving them holiness, courage, and wisdom. A couple of questions for Michael.
1) Michael, are you suggesting that women are sinless? (There is a precedent, but she is currently busy mourning the misguided actions of the male president of her university). Or, are you suggesting that women sin differently than men so that while we might have avoided the abuse scandal, our human frailty (including the frailty of the bishops) would have manifested in other ways?
2) Does the type of civility in dialogue that we are attempting to achieve on this blog extend to civility toward the successors to the apostles? Your post reads more like a rant against authority rather than a reasoned argument for - what - women priests and bishops? married priests and bishops? a change (development?) in the doctrine regarding human sexuality? All three are implicated in your two line opening but you don't develop any of the arguments.
Saturday, April 4, 2009
[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?]
New York Times
April 3, 2009
Early Alarm for Church on Abusers in the Clergy
The founder of a Roman Catholic
religious order that ran retreat centers for troubled priests warned
American bishops in forceful letters dating back to 1952 that
pedophiles should be removed from the priesthood because they could not
be cured.
The Rev. Gerald M. C. Fitzgerald, founder of the order, Servants of the Paraclete, delivered the same advice in person to Vatican
officials in Rome in 1962 and to Pope Paul VI a year later, according
to the letters, which were unsealed by a judge in the course of
litigation against the church.
The documents contradict the most consistent defense given by
bishops about the sexual abuse scandal: that they were unaware until
recently that offenders could not be rehabilitated and returned to the
ministry.
Father Fitzgerald, who died in 1969, even made a $5,000 down payment
on a Caribbean island where he planned to build an isolated retreat to
sequester priests who were sexual predators. His letters show he was
driven by a desire to save the church from scandal, and to save
laypeople from being victimized. He wrote to dozens of bishops, saying
that he had learned through experience that most of the abusers were
unrepentant, manipulative and dangerous. He called them “vipers.”
“We are amazed,” Father Fitzgerald wrote to a bishop in 1957, “to
find how often a man who would be behind bars if he were not a priest
is entrusted with the cura animarum,” meaning, the care of souls.
His collected letters and his story were reported this week by The National Catholic Reporter,
an independent weekly. Father Fitzgerald’s papers were unsealed by a
judge in New Mexico in 2007 and are now becoming public in litigation,
although some letters were public before now, said Helen Zukin, a
lawyer with Kiesel, Boucher & Larson, a firm in Los Angeles. The
letters were authenticated in depositions with Father Fitzgerald’s
successors.
[Read the depressing rest, here.]
Rick’s comments on William M. Daley’s Chicago Tribune editorial responding to Cardinal George’s remarks concerning Notre Dame et L’Affaire Obama are right on point. The really sad thing is that here in Chicago Billy Daley is known as the “smart Daley.” And, frankly, he is a smart man (as is his older brother “Da’ Mayor”) which makes a statement like the one Rick critiques all the more disappointing.
What is the reason behind fatuous statements like this – statements which suggest that it is somehow improper for a Catholic bishop to say that a Catholic university is not fulfilling its Catholic mission?; statements which suggest that the Church, in voicing her opposition to abortion, is in Daley’s word’s, attempting to establish a “theocracy”?
Does a statement like Daley’s reflect a failure to simply understand the issue? That would seem to insult the intelligence of the author, something that, as I said, should not be questioned. Or does it reflect a failure on the part of the Church to clearly articulate her stand on such matters in ways that are accessible to public reason? In the alternative, does a statement like this represent a failure in catechesis? Or since Daley was born in 1948 and so may well have been properly catechized (prior to the catechetical implosion that followed the Second Vatican Council) does a scandalously misinformed opinion like this reflect the corrupting influence of an ecclesial atmosphere that sees everything the Church says on matters of public concern as violating the cherished no-establishment of religion principle? Or does this vigilance on the part of Catholics in manning the wall of separation spring into action only with respect to the Church’s stand on particular issues such as abortion – positions on issues that contradict the orthodoxy of certain political organizations? As such, is it possible that statements like Daley’s reflect not a failure on the Church’s part, or a sincere lack of comprehension or matter of confusion on the part of the author, but a deliberate strategy of obfuscation borne of political convenience? If so, then what is the true source of embarrassment?
Friday, April 3, 2009
Here, at Public Discourse, is a short version of a paper I gave at our own Patrick Brennan's excellent Scarpa Conference, at Villanova, a few weeks ago. A bit:
[H]ow, precisely, do the anti-establishment norm and the “separation of church and state” vindicate the freedom of conscience? We know that Roger Williams—the founder of the colony of Rhode Island and a fierce and fiery critic of the “soule rape” of religious persecution—connected the protection of conscience with the maintenance of a wall between the “Garden” of religious faith and the “Wilderness” of civil power and public affairs. But again, how exactly does this wall, this separation, protect the “soule,” the seat of conscience?
The “separation of church and state,” it turns out, is a powerful structural principle; it is a principle of pluralism, of multiple and overlapping authorities, of competing loyalties and demands. It is a rule that limits the state (not a program of marginalizing or privatizing religion) and thereby clears out and protects a social space, within which persons are formed and educated, and without which the liberty of conscience is vulnerable. The no-establishment rule, then, protects the liberty of conscience primarily by respecting and protecting the independence of non-state authority.
Here is a new (to me) blog dedicated to exploring the "integration of Christian faith and the Law." A matter worth exploring, I'd say! Check it out.
