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.

Thursday, December 4, 2008

Another Response to Sodomy and Civil Rights

By Susan Stabile

MOJ-reader Jonathan Watson sends this response to David Weiss's piece on committed same-sex relationships and sodomy:

" Dear Prof. Weiss,

"I find your piece on committed same-sex relationships interesting, though I think flawed in its reasoning. You begin with the premise that, "Not in this text—nor in any other biblical text—is there a condemnation of committed same-sex relationships. Not one. Not anywhere. There are a small handful of texts that condemn same-sex prostitution in pagan temples, and perhaps military rape and pederasty. But nowhere in the Bible is there a single word that condemns committed same-sex relationships." In your bare assertion, I believe you are correct. Nowhere in the Bible is there a condemnation of committed same-sex relationships, and in fact, the legal use of the term sodomy in our country might be mistaken in the reference to the Sodomites. In fact, I suspect Christ  lauds (for example) two brothers living together, raising an orphan. However, since your email / post specifically refers to homosexual couples and Prop. 8, it is worth noting what the Bible says about same-sex relations. I believe I can safely assume that you do not separate same-sex coupling from sexual activity.
 
"To begin with some examples from the bare text, Leviticus 18:22 states: "'Do not lie with a man as one lies with a woman; that is detestable." Leviticus 18:24 reiterates the command even more strongly. It is even repeated in Leviticus 20:13, which states "If a man lies with a man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads."  Second, the men of Sodom sought to "know" Lot's guests in the Bible. One could argue that he simply sought to defend their guest rights, but the point is very debatable. St. Paul understood this in writing to the Corinthians that "Know you not that the unjust shall not possess the kingdom of God? Do not err: neither fornicators, nor idolaters, nor adulterers, Nor the effeminate, nor liers with mankind, nor thieves, nor covetous, nor drunkards, nor railers, nor extortioners, shall possess the kingdom of God." If that is not enough, St. Paul condemns homosexuality more directly in Romans, saying, "And, in like manner, the men also, leaving the natural use of the women, have burned in their lusts one towards another, men with men working that which is filthy, and receiving in themselves the recompense which was due to their error."
 
"I believe that suffices for a bare textual argument against homosexual acts. It is interesting to note that the New Testament contains more direct condemnation (as in divorce) against homosexual acts. Oddly, there is no mention of pagan temple prostitution, military rape, or pederasty (except as other sins, of course). Turning to some of the earliest Christian writers, we find their understanding that the various texts outlined above DID refer to homosexual acts. For a Catholic, it is impossible to ignore the interpretation of these writers.
 
"So, while I agree that using majoritarian power is unjust to certain ends (sending all homosexuals to live in camps in western deserts, for example), it is not acting as a Sodomite to refuse to enable, or refuse to bless with legal entitlement and recognition, sinful action."

"Sodomy and Civil Rights"

By Michael Scaperlanda

It is a day for law student responses.  Oklahoma law student, Nicholas Bender responds David Weiss' "Sodomy and Civil Rights" posted here:

"David Weiss defines sodomy this way: "Sodomy happens when any group uses their majority or their power to abuse and marginalize another group." He says this is what happened when people in California and other states voted to ban legal recognition of same-sex marriage.

To me, his argument seems faulty on several levels. First, he makes a huge leap in logic. He reasons that if people voted "yes" on Proposition 8, then they were using "their majority power to abuse and marginalize another group." It seems to me that voters could have been motivated by factors other than a desire to abuse and marginalize. For example, voters could have reasoned that the marriage relationship between a man and a woman is an institution that society has deemed valuable for many reasons, including for its ability to form the intimate mini-community on which society is built: the family. Amongst the many relationships in our society that might arguably contend for privileged status, the traditional marriage relationship has been selected as most worthy of promotion. Same-sex couples are, therefore, arguing not to be treated like the rest of the varied societal relationships that exist, but to be given the exceptional status that has traditionally been extended to opposite-sex couples. While certain rights can be granted to relationships that differ in form and function from the traditional marriage relationship, voters may have concluded that only marriage in the traditional sense should be incentivized to a degree greater than all other relationships because of the return to society on the investment. Now, whether one agrees or disagrees that families headed by wedded, opposite-sex couples provide the optimal basic conditions for a successful family is another issue. But certainly, voters could have drawn that conclusion, without notions of abuse or marginalization motivating their decision.

Second, Mr. Weiss' argument seems to attack the democratic project itself. Using Mr. Weiss' sweeping reasoning, one could argue that anytime the majority expresses it's will on a particular subject, then it is abusing and marginalizing another group (i.e. the minority). A democracy necessarily includes winners and losers. Voting decisions based on one's beliefs (even those grounded in religion) are not, and should not be, precluded in a properly functioning democracy. I guess I would ask Mr. Weiss to further define "abuse" and "marginalization."

Naming the Source of Dignity: A Third Response

By Michael Scaperlanda

George Mason law student Mattias Caro weighs in the question: 

"I was intrigued by the Glendon quote you put up, in part because I spent a good deal of the summer working with Glendon's book on Eleanor Rosevelt and the Universal Declaration of Human Rights. Glendon does a masterful job in her book of laying out how individuals from so many different parts of the world could actually come together and approximate a common understanding of the values and truths that must necessarily undergird human society. Taking aside the utility of rights talk itself, which Glendon has also impressively criticized, the Universal Declaration was a moment for humanity in expressing a necessary natural law underpinning to any human, social enterprise. The problem lays here I think: in 1776 our Founding Fathers expressed their natural law theory in one simple phrase "self-evident truths that all men are created equal and endowed with certain unalienable rights which among these are life, liberty and the pursuit of happiness." In 1948, it took the world well over 40 separate points to flesh out the same truth.


Rather than indicate a deeper understanding and appreciation for the natural law, I think it expresses exactly the opposite. The natural law is most operative in the people when its principles are ingrained within custom, habit, and social structure. What's changed? Glendon is right: the competing views of human nature offered by Kant and Rouseau has left political theory profoundly confused: can man have a telos? Is he fundamentally a good creature and evil exits outside of him? Competing in this framework, the imago dei stands no chance because it both asserts that man indeed has an extrinsic, intelligible end (contra Kant) and that indeed man's free choice can be the source of evil (contra Rouseau). But in reading Glendon, I don't think she's making a fideistic argument that faith is the necessary ingredient for belief in the imago dei. I simply think the way things have shaken out in intellectual history, if a person does not have some sort of theistic background, they'll look for other grounds (i.e. enlightenment thinker rationalizations) to confirm their beliefs on human nature. But I'm not so sure a pre-Christian natural law thinker (such as say Cicero) would 100% object to the terms Glendon uses.

So the conversation certainly isn't one about believers vs. non-believers. But there is a lot of intellectual ground to catch up on to even begin to have a conversation on the imago dei."

Naming the Source of Human Dignity: Another Response

By Michael Scaperlanda

This post, by Alabama law student Abe Delnore, responds to this post, which is also discussed here and here:

"I wonder if Rick Garnett's former student--the Bob Jones alumnus--suggests an answer to your student's question.  That is, divine creation not so long ago was considered by some the basis for denying the dignity of some humans.  So while Kant and Rousseau may seem to leave gaping loopholes, it is a historical fact that the divine account has been perverted--and it may be again. 

The alarming implications Glendon reaches from Kant and Rousseau are not conclusions those philosophers reached themselves.  Her characterization of Rousseau's empathy kind of bothers me, actually; his empathy is not a transient emotion.  If Glendon's quarrel is with imaginary Kant-lite (Peter Singer) and Rousseau-lite (?), then she has to deal with the use of Christianity to justify slavery and racism, the Church's centuries of failure to realize the implications of human dignity, etc.  Maybe she does; I haven't read this essay of Glendon's.

I also don't see why she believes we must choose among accounts of human dignity's origin.  Surely if God did create humans with inherent dignity, then what Kant and Rousseau noticed is also true.  Kant and Rousseau made powerful arguments one should not abandon lightly."

Naming the Source of Dignity: A Response

By Michael Scaperlanda

A student posed a question here and Fr. Araujo responded here.  This is a response from Richmond law student John O'Herron:

"Your most recent post and the question it poses are fascinating.  I am a law student at UR so my thoughts on this may be of little more value than your other students.  I did take a good deal of philosophy in college though (Christendom) so I am somewhat familiar with the issue presented.
 
The question obviously has massive implications for life issues: abortion, stem-cell, etc. One cannot claim that human stem-cells and unborn children have human rights (like the right to not be destroyed) if you accept Kant's reading of it.  So, Kant is out the door.  But I don't think the only alternative is faith-based.  Surely it is true that we have human dignity because we are made by God and in His image.  But I think its the case that we also have human dignity because of something distinct, yet related: our souls.
 
To understand the soul in a non-religious way (i.e., it isn't just the thing that shows we are made in God's image) is necessary. If we understand the human soul to be the life-animating thing that gives us our intellect and will, we see that humans alone have this "thing."  It is the very thing that makes us unique and the nature of that capacity make it something to be protected (sacred if you will, though not in the religious sense).  It is the soul that gives us those gifts.  However, not all people with souls have those gifts (the disabled etc.).  But those people still have that "thing" that makes humans special and unique.
 
It is the existence of the thing, and not necessarily the gifts that it imparts, that gives humans their dignity.  Therefore, those people so disabled as to not be able to exercise their intellect or will still retain their human dignity-they still have the very thing that makes them human, their soul. 
 
This isn't a fully developed argument, which would also require a foundation for what the soul is.  But I think that the general answer to your students question is that we can use the human soul as the basis for discussion and the basis for human rights.  We can make this argument to non-believers as well.  They too can (stress can) see that humans have an intellect and will that no other creature has.  Unless they are willing to say that disabled people have a different soul entirely (a different kind of thing that only gives life but not intellect and will), they must recognize that all people have this animating "thing.''  This conclusion has obvious implications for abortion as well (which is why the secular and philosophical argument for life works). 
 
I hope some of this made sense.  At a minimum, perhaps MOJers can discuss how we can discuss human rights in terms of the human soul without arguing faith.

MOJ-fest in my Catholic Social Thought class

By Rick Garnett

Yesterday, in my "Catholic Social Thought and the Law" seminar, we talked about a group of readings having to do not so much with the "what does CST tell us about what law and / or policy should be, in a political community likes ours?" question, but with the "how do I go about constructing and living an integrated life as a Catholic lawyer?" question.  And so, we read my colleague Amy Barrett's 2006 Notre Dame graduation speech; Greg Kalscheur's 'Ignatian Spirituality and the Life of the Lawyer", Lisa Schiltz's "Should Bearing a Child Mean Bearing All the Cost?", John Breen's "The Catholic Lawyer and the Meaning of Success", and (I hearby declare an honorary MOJ-er) Tom Shaffer's "Roman Catholic Lawyers in the United States".  Lots of fun.

A Further Thought on Human Dignity

By Robert John Araujo, SJ

 

 

Thanks to Michael S. for raising the interesting and important question raised by one of his students over Mary Ann Glendon’s valuable analysis of the Kantian and Rousseauian perspectives on human dignity. Ambassador Glendon is right on target in identifying the debilitating fault line that runs through Kant and Rousseau. Although there has been some previous discussion of the subject of human dignity here at Mirror of Justice, I would like to draw attention once again to a point made by Pope John Paul II in his encyclical letter Centesimus Annus where he said there is something “which is due to man because he is man.” Jacques Maritain offered a similar insight into the nature of every human some years earlier. I would like to take this mutual thought of John Paul II and Maritain and suggest that regardless of who anyone is—which takes into account all kinds of physical, emotional, social, economic, age, sentient, and all other statuses—each human is to be accorded the protection of his or her existence because he or she is human. This is not necessarily a religious argument, although it reinforces the Catholic doctrine on the issue of human dignity. It is, however, an argument based on reason, an explanation that transcends the problems with the views of Kant and Rousseau that Ambassador Glendon identifies. As I stated earlier, there is something that is innate to the human and this integral character is the dignity which is the guarantor of everyone’s existence that begins with the moment of their first being. With each’s being there is the commencement of the individual’s dignity that needs to be preserved. If one’s dignity is assaulted, what is to prevent the forfeit of anyone else’s dignity?

 

RJA sj

 

A quick response regarding Eduardo, Kmiec, etc.

By Rick Garnett

I've very much enjoyed not thinking about the election in recent weeks, but . . . with respect to the post by Eduardo, about Kmiec, et al.:

What many of us (and, more specifically, what I) found frustrating and objectionable about Kmiec's arguments in recent months is not merely that they were marshalled in support of Sen. Obama.  I have always been clear that, for me, the issue is not whether or not a faithful, reasonable, informed Catholic could conclude that, all things considered, a vote for a pro-abortion-rights candidate is the way to go.  ("Believe in infant baptism?  Sure.  Hell, I've seen it done.")  First, as I contended (many -- too many? -- times), here and elsewhere, the problem with Kmiec's arguments was not their pro-Obama-all-things-considered conclusion, but their failure (in my view) to correspond with and take account of the relevant abortion-policy-related facts and history.  Second, I do not believe Kmiec provided (and, because he is not a reluctant, "hold my nose" Republican but a longtime conservative public intellectual and partisan, I think it was incumbent on him to provide) an admission that he was changing his mind (on a number of issues) and an account of why he was changing his mind.  (Remember Mitt Romney?)

And with that . . . how about them Irish?

Christianity, Same-Sex Relations and Prop 8

By Susan Stabile

This following thought-provoking piece originated in an e-mail by the author and has been posted on various internet sites.  With the permission of Mr. Weiss, I reproduce it here:

Sodomy and civil rights, David R. Weiss, November 7, 2008

"This country has a sodomy problem. And until we have the wisdom and the courage to be honest about what that means we’re not going to resolve the question of civil rights for homosexuals. We need to be clear about why sodomy is such a threat to the common good of civil society, why it undermines the family, and why it is such an evil when afoot in faith communities. It’s not going to be easy. But it needs to be done.

The word “sodomy” comes from a biblical text (Genesis 19) where the ancient city of Sodom is marked out for divine destruction because its evil ways so angered God. Sodomy names those who act like the inhabitants of Sodom.

Fine. But listen carefully. Not in this text—nor in any other biblical text—is there a condemnation of committed same-sex relationships. Not one. Not anywhere. There are a small handful of texts that condemn same-sex prostitution in pagan temples, and perhaps military rape and pederasty. But nowhere in the Bible is there a single word that condemns committed same-sex relationships.

To vote on Proposition 8 in California, or on any of the other state initiatives seeking to ban same-sex marriage, based on the Bible is the moral equivalent of using biblical texts to support slavery or apartheid. It is obscene.

So having cleared that up, let’s talk about the real problem here: sodomy. Acting like the inhabitants of Sodom.

The prophet Isaiah (1:10-17; 3:9-15) knew something about the reputation of those who lived in Sodom. He says they despised justice, especially for widows and orphans—those at the edges of family structures in the ancient world. And he says they built an economy that stole the goods of the poor. Likewise, the prophet Ezekiel (16:49) was also acquainted with the sodomy “lifestyle.” He rails against them because in the midst of their abundance they were indifferent to the needy.

Even Jesus, some 2000 years after its destruction, can employ a reference to Sodom with full effect. Twice (Matthew 11:19-24 and Luke 10:12) he invokes the memory of Sodom as a city condemned for its treatment of the marginalized and its lack of hospitality to sojourners.

For both the Hebrew prophets and the Christian Messiah sodomy is not about acting on same-sex attraction; it is clearly and unequivocally about social injustice and horrendous breeches of hospitality, of which the attempted gang rape of Lot’s guests is simply one final bit of damning evidence.

Sodomy, understood biblically, is the sin of creating social structures that systematically isolate those already at the margins of society. It is roundly condemned by the prophets and by Jesus. And for good reason. It destroys the fabric of families by teaching even the youngest children to dehumanize persons simply because of difference.

It undermines the common good of society by scape-goating a minority in ways that contradict the very ideals we claim to hold in a democracy. And it is simply an unforgiveable evil in faith communities where it betrays the very messages of justice, mercy, and compassion that are at the heart of religious faith.

So let’s be clear: the desire to close off the protections afforded by marriage to persons living in committed same-sex relationships (and to their children) is itself an act of sodomy and it has no place in civil society or in communities of faith.

Further, when African-Americans and Hispanics vote in large numbers alongside conservative white Christians to ban same-sex marriage they ally themselves with the same strand of Christianity that in the past quoted other biblical texts just as effectively to justify genocidal policies toward Native Americans, xenophobic laws toward immigrants, and abominations like slavery, Jim Crow, and apartheid.

So, yes, this country has a sodomy problem. But so long as we think it has anything to do with gay sex we’ve missed the point of God’s outrage. Sodomy happens when any group uses their majority or their power to abuse and marginalize another group. That’s what happened in California, Arizona, Florida, and Arkansas on November 4. And it’s time for us, as citizens and as Christians, to stop acting like the inhabitants of Sodom.

David Weiss is a theologian, writer, poet and hymnist committed to doing “public theology” around issues of sexuality, justice, diversity, and peace. His first book is To the Tune of a Welcoming God: Lyrical reflections on sexuality, spirituality and the wideness of God's welcome (2008 / www.davidrweiss.com). He lives with his wife and children in St. Paul, MN."

Wednesday, December 3, 2008

This looks very interesting indeed ...

By Michael Perry

The Sexual Person
Toward a Renewed Catholic Anthropology
 Todd A. Salzman, Michael G. Lawler
$29.95
ISBN: 9781589012080 (1589012089)
LC: 2007046198
Book (Paperback)
6 x 9
352 pages
May 2008



"Salzman and Lawler are accomplished theologians with the stature to confront questions that have become highly inflammatory in the too-often polarized Catholic environment. The result is a piece of extensive, well-researched, and carefully argued scholarship. The authors are respectful, intelligent, honest, thorough, and courageous. They will alarm a few people, enlighten many, and hold all to a new standard of rigor in approaching this very personal and politicized subject."—Lisa Sowle Cahill, J. Donald Monan Professor of Theology, Boston College

"[A] carefully reasoned, nuanced, well-informed, often inspiring, and innovative book. Bound to be controversial for proposing an alternative to the primarily procreationist, traditionalist sexual anthropology in 'official' or 'tradionalist' Catholic treatments, The Sexual Person mounts a cogent and compelling account for a renewed genuinely Catholic sexual ethic, one widely informed by the social sciences. [This book] represents Catholic theological anthropology and ethics at their very best."—John A. Coleman, SJ, Casassa Professor of Social Values, Loyola Marymount University, Los Angeles

"[T]he most comprehensive, critical analysis of the Catholic debate on sexual ethics over the past fifty years. Its interpersonal and experiential approach points to a thorough revision of Church teaching on birth control, reproductive technology, premarital sex, and homosexuality."—Edward C. Vacek, SJ, professor, Department of Moral Theology, Weston Jesuit School of Theology

"This superb volume courageously explores Catholic teaching on sexual ethics. The authors' exploration of the biological, relational, and spiritual dimensions of human sexuality engages Catholic teaching respectfully, critically, and creatively. The book is a significant contribution to both sexual ethics and moral theology generally."—Paul Lauritzen, director, Program in Applied Ethics, John Carroll University

"This book is a much needed contribution to the contemporary Catholic discussion of sexual ethics. The authors utilize the most recent sociological and psychological data to supplement their careful parsing of the Catholic theology of sex, gender, and embodiment. It is a work that manages to be highly theoretical while at the same time addressing everyday concerns about premarital sex, contraception, homosexuality, divorce and reproductive technology.

Lawler and Salzman embrace the model of theology as dialogue and as a result their treatment of both traditionalist and revisionist views about human sexuality is constructive and helpful. They succeed in moving a seemingly stalled conversation forward."—Aline Kalbian, associate professor, Department of Religion, Florida State University

"A bold and brave book! Tightly argued and well-documented, this book lays out an understanding of human sexuality that expresses the profound work that theologians do on behalf of the Church in order to find ever better understandings of what the Church teaches in light of the witness of Scripture, the tradition, and our understanding of human experience."—Richard M. Gula,SS, The Franciscan School of Theology, Graduate Theological Union

Two principles capture the essence of the official Catholic position on the morality of sexuality: first, that any human genital act must occur within the framework of heterosexual marriage; second, each and every marriage act must remain open to the transmission of life. In this comprehensive overview of Catholicism and sexuality, theologians Todd A. Salzman and Michael G. Lawler examine and challenge these principles. Remaining firmly within the Catholic tradition, they contend that the church is being inconsistent in its teaching by adopting a dynamic, historically conscious anthropology and worldview on social ethics and the interpretation of scripture while adopting a static, classicist anthropology and worldview on sexual ethics.

While some documents from Vatican II, like Gaudium et spes ("the marital act promotes self-giving by which spouses enrich each other"), gave hope for a renewed understanding of sexuality, the church has not carried out the full implications of this approach. In short, say Salzman and Lawler: emphasize relationships, not acts, and recognize Christianity's historically and culturally conditioned understanding of human sexuality. The Sexual Person draws historically, methodologically, and anthropologically from the best of Catholic tradition and provides a context for current theological debates between traditionalists and revisionists regarding marriage, cohabitation, homosexuality, reproductive technologies, and what it means to be human. This daring and potentially revolutionary book will be sure to provoke constructive dialogue among theologians, and between theologians and the Magisterium.

Todd A. Salzman is a professor of Catholic theology and chair of the Department of Theology at Creighton University. He is the coeditor of Marriage in the Catholic Tradition: Scripture, Tradition, and Experience and author of What Are They Saying about Roman Catholic Ethical Method?

Michael G. Lawler is professor emeritus of Catholic theology at Creighton University. He is the author of What Is and What Ought to Be: The Dialectic of Experience, Theology, and Church and Marriage and the Catholic Church: Disputed Questions.

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