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.

Friday, June 13, 2008

Interracial Marriage, Same-Sex Unions, and Statism

In the immediately preceding post, Rob writes:

Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.

Consider the following, and imagine its being said circa 1967, when Loving v. Virginia was decided:

Interracial marriage, because it largely lacks the social, cultural, and religious reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose interracial marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, and religious obstacles to interracial marriage that are not as formidable in the case of same-race marriage.

"Marriage" as pre-political?

In a recent post (here), Rob Vischer writes (quoting an article in the National Catholic Register):

"[H]ere's an insightful snippet about the the tendency of SSM to come with a more statist orientation than traditional marriage:  'Marriage between men and women is a pre-political, naturally emerging social institution. . . . .  By contrast, same-sex 'marriage' is completely a creation of the state."

In what I am about to say, by "marriage" I mean heterosexual marriage.

When one refers to a "right", one may be referring to a legal category (i.e., a legal right) or to a non-legal category (e.g., a moral right).  Similarly, when one refers to "marriage", one may be referring to a legal category or to a non-legal category.  "Marriage" as a legal category is obviously not pre-political, any more than "a right to ..." as a legal category is pre-political.  Whether the law should recognize and protect marriage, understood as a non-legal category--and thereby make marriage (also) a legal category--is a political decision.  Whether the law should recognize and protect same-sex unions, understood as a non-legal category--and thereby make same-sex unions (also) a legal category--is no more (and no less) a political decision than the decision whether to recognize and protect marriage, understood as a non-legal category.  So it isn't clear to me what Rob means when he says "the tendency of SSM to come with a more statist orientation than traditional marriage."

In any event, I take it that both Rob and I agree that one can simultaneously support the state's extending the benefit of law to same-sex unions and oppose the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.  There are three choices, not just two:

1.  No to the state's extending the benefit of law to same-sex unions.

2.  Yes to the state's extending the benefit of law to same-sex unions, and no to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.

3.  Yes to the state's extending the benefit of law to same-sex unions, and yes to the state's abridging one's religious liberty to take up an oppositional stance to same-sex unions.

Two Problems with Robert Miller's Statement

Thanks to Rob Vischer for linking us (here) to Robert Miller's statement (here), which I just read.

The fundamental problem with Professor Miller's statement is that it does not support the constitutional amendment it purports to support.  The constitutional amendment the statement purports to support would prevent the Pennsylvania legislature from recognizing--by extending the benefit of law to--same-sex unions, should the legislature want to do so, whether now or ten years from now.  Yet, Miller's statement is an argument in support of the proposition that a political majority, and not the courts, should decide whether to recognize same-sex unions.  The constitutional amendment Miller's statement purports to support would prevent a political majority in Pennsylvania, should it want to do so, say, ten years from now, from recognizing same-sex unions.  The constitutional amendment Miller's statement actually supports is different from the one it purports to support.  The constitutional amendment the statement actually supports is one that prevents the courts from requiring Pennsylvania to recognize same-sex unions.  Such an amendment would state simply that the Pennsylvania constitution shall not be construed by any court to require Pennsylvania to recognize same-sex unions.

Here is another problem with Miller's statement:  In the course of his statement, Miller says that a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions "would for all practical purposes have roughly the same effect as . . . passing the amendment proposed in S.B. 1250."  That claim is plainly false.  The proposed amendment would prevent the Pennsylvania legislature from recognizing--should it want to do so, say, ten years from now--same-sex unions.  By contrast, a decision by the Pennsylvania Supreme Court to the effect that the Pennsylvania Constitution does not require the Pennsylvania legislature to recognize same-sex unions would not prevent the  Pennsylvania legislature, now or later, from recognizing same-sex unions should it want to do so.   

Tuesday, June 10, 2008

Traditional Marriage ... from a Woman's Perspective

THE BOTTLE OF WINE


For all of us who are married, were married, wish

you were married, or wish you weren't married, this

is something to smile about the next time you see a

bottle of wine:


Sally was driving home from one of her business

trips in Northern Arizona when she saw an elderly
 

Navajo woman walking on the side of the road.


As the trip was a long and quiet one, she stopped

the car and asked the Navajo woman if she would like a ride.

With a silent nod of thanks, the woman got into the car.

Resuming the journey, Sally tried in vain to make

a bit of small talk with the Navajo woman. The old

woman just sat silently, looking intently at
 

everything she saw, studying every little detail,

until she noticed a brown bag on the seat next to Sally.

"What's  in the bag?" asked the old woman.   

Sally looked down at the brown bag and said, "It's

a bottle of wine. I got it for my husband."   

The Navajo woman was silent for another moment or two.

Then speaking with the quiet wisdom of an elder, she said:

"Good trade."
 

Friday, June 6, 2008

Michael Scaperlanda: This Will Warm Your Heart!

[From John Allen's report, in today's NCR:]

In a recent NCR cover story I described a phenomenon in Texas I called "Evangelical transfer," meaning ways in which the state's strong Evangelical Protestant ethos shapes the Catholic experience.  This week, I want to describe another "evangelical" face of Texas Catholicism, this time in the sense of lives lived in radical witness to the values of the Gospel.

Meet Mark and Louise Zwick, founders of the Casa Juan Diego on Houston's West side, a remarkable center of welcome and advocacy on behalf of the city's mushrooming immigrant population.

In Catholic circles around the world, Mark and Louise Zwick are probably best known for the Houston Catholic Worker, a newspaper and labor of love in which they blend deep Catholic piety with keen social analysis. The paper is legendary for tweaking American Catholic neoconservatives, and anyone sucked into their orbit; in 2004, for example, the Zwicks lampooned the work of a certain Rome correspondent for the National Catholic Reporter, who, they felt, had been overly influenced by lunches in the Eternal City with prominent Catholic neo-cons. (In charity, they wrote at the time, they would refrain from saying that I was "out to lunch.")

On the streets of Houston, however, the Zwicks are famed not for literary production, but for love in action. One Wednesday morning in mid-February, Mark was showing me around the property when a mini-mob scene developed. A group of Hispanic men had clustered outside awaiting "Marco," and one by one they came forward to ask him, in polite Spanish, for various kinds of help. I watched as Mark found a jacket for one of the men to wear against the cold, a pair of shoes for another, and explained to a third how to get eyeglasses from Casa Juan Diego's free medical clinic.

Louise told me that this experience of living alongside the poorest of the poor, struggling daily to help meet their material and spiritual needs, fuels Casa Juan Diego's social advocacy.

[Read the rest of this remarkable, inspiring story, here.]

Newly Catholic Tony Blair ... and His "Faith Foundation"

[John Allen reports in today's NCR:]

In so many ways, Tony Blair is not your typical Anglican convert to the Catholic church.

For one thing, of course, Blair is the former British prime minister. Almost as atypical these days, however, is the fact that Blair does not belong to the traditionalist wing of Anglicanism, meaning Anglicans disenchanted with the ordination of women and homosexuals, the blessing of same-sex unions, and other liberalizing currents, and hence usually most likely to contemplate the "Roman option."

Instead, Blair espouses a theologically moderate, socially engaged Christianity. By the standards of British politics, Blair is a social moderate, and his largely permissive positions on abortion, birth control and embryonic stem cell research have drawn strong Catholic criticism over the years. (Some outraged English Catholics have gone so far as to charge that Blair should not have been received into communion with the church, at least until he recants.)

Last Friday, I attended a press conference at the Time-Warner Center in New York to present Blair's new "Faith Foundation," a global inter-faith coalition designed to mobilize religious leadership to achieve social good. Most immediately, the Faith Foundation intends to enlist religious believers in global efforts to eradicate malaria, estimated to kill one million people each year, primarily in the developing world, and the vast majority are children. A related aim is to combat extremism and terrorism carried out in the name of religious belief.

Interestingly, Blair's Faith Foundation counts a slew of prominent religious leaders among its advisors - Sir Jonathan Sacks, for example, Chief Rabbi of England, as well as Reverend Rick Warren, Senior Pastor of Saddleback Church in Lake Forest, California. Yet there's not a single Catholic, though promotional materials say that Cardinal Cormac Murphy-O'Connor of England will join the advisory council after he steps down as Archbishop of Westminster.

To call Friday's press conference "high-profile" is an exercise in under-statement. It was hosted by CNN's Christiane Amanpour, and featured opening remarks from former U.S. President Bill Clinton, who said he had come to "wish my friend well." Richard Levin, President of Yale University, where Blair will be a visiting professor, was also on hand.

Eboo Patel, founder and director of the Interfaith Youth Core in Chicago and another advisor to Blair's Faith Foundation, provided the day's sound-bite.

"The worst mistake would be to think that the fault line of the 21st century runs between Christians and Muslims, or between theists and secularists," said Patel, a Muslim. "It's between pluralists and totalitarians."

That line was picked up by other speakers, so much so that it almost became an anthem - with Blair and his admirers clearly on the side of the pluralists.

Blair was careful to say that his foundation does not seek "to subsume different faiths into one universal faith of the lowest common denominator." Nevertheless, it seemed clear that Blair's Faith Foundation reflects what one might call a "center-left" religiosity, with emphasis on tolerance, dialogue, and cooperation in the pursuit of humanitarian objectives.

What future the foundation may have is tough to handicap. From a purely Catholic point of view, however, it's at least worth noting that the church's most high-profile recent convert also seems a natural spokesperson for a more "progressive" or "liberal" form of Catholicism, at a moment when that constituency appears to be, in many other ways, on the ropes.

Thursday, June 5, 2008

You've Heard about the "Religious Right" ... But What about the "Religious Left"?

MOJ readers may be interested in this Pew Forum Q & A on "Assessing a More Prominent 'Religious Left'", here.

Wednesday, June 4, 2008

Call for Papers: Religion and Governance

Call for Papers

Sixth Baha’i Conference on Law

Exploring the Intersections of Religion and Governance

 October 10-11, 2008

American University, Washington College of Law

Washington, D.C.

 This Call for Papers invites submissions on the question of what contributions religion can make to governance (broadly defined as the traditions, institutions, and processes by which authority is exercised in a given society).

Under what conditions are religion or faith relevant to questions of “good governance”? Since the mid-1990s, the World Bank, the International Monetary Fund, and the United Nations, as well as developed country governments, have advocated good governance as a condition for development aid. Criteria for good governance have been variously said to include accountability, responsiveness, transparency, public participation, and the rule of law, among other elements.

Many have highlighted the roots of these concepts in Western democratic culture. One might recall, for example, James Madison’s widely quoted aphorism that “a popular government without popular information or the means of acquiring it … is but a prologue to a farce or tragedy or both.” This Conference seeks to consider religious dimensions of these concepts. This may shed light on whether modern characterizations of “good governance” are uniquely Western, either in origin or present applicability.

More broadly, the Conference will ask what faith and religion can continue to teach us about good governance and its features. What do various religious traditions emphasize as the essential elements of good governance? From the perspective of the Baha’i Faith, for example, one might argue that processes of good governance must simultaneously pursue the interdependent principles of justice and unity, with an ultimate orientation to the achievement of universal peace. Along such lines, we hope to explore what ultimately is the role of “faith” in identifying and developing criteria for good governance.

Please send an abstract of your paper proposal via e-mail to Professor Padideh Ala’i at [email protected], with a copy to Nicolas Mansour, at [email protected], no later than June 30, 2008.

Conference Organizers:

 Padideh Ala’i (American University, Washington College of Law)

Robert B. Ahdieh (Emory Law School)

Neysun Mahboubi (Yale Law School)

Bill Stuntz on Obama's Nomination

[From the Stuntz/Skeel blog, Less Than the Least:]

June  4, 2008

Obama--Stuntz

I’m a registered Republican and will probably vote for McCain in November. Even so, yesterday seems to me one of the great days in American history. And it’s a great day in part because it all seems so ordinary: two candidates battled for a major-party nomination, and one of them came out on top, barely. That has happened before (mostly in Republican races—since, for most of its history, the Democratic Party required that its presidential nominees win two-thirds of all delegate votes, not a simple majority). But this time, the candidate who came out on top is a black man, and that hasn’t happened before.

I remember when Doug Wilder was inaugurated Virginia’s governor in January 1990: the first elected black governor in American history, inaugurated in the city that once served as the capital of a nation founded to preserve black slavery. Former Supreme Court Justice Lewis Powell, scion of Richmond’s white establishment, administered the oath of office. When Wilder had taken that oath, Powell leaned into the microphone and said: “It’s a great day for Virginia.” It was. Just as yesterday was a great day for the United States.

Tuesday, June 3, 2008

Paul Baumann, Editor of Commonweal

Do yourself a favor:  Sit back, relax, and read Paul Baumann's wonderful article, here, in this weeks' Commonweal:

Among the Catholic Commentariat

My Seven Hours of Fame