Rob, thank you for sharing with us your struggle with what I will call “the marriage problem.”
Marriage – as a public institution – is in deep trouble, there is no doubt about it. And, to be perfectly clear, the trouble has nothing to do with the debate over SSM. Traditionally marriage has had one quantitative and three qualitative elements: two people; man and woman; monogamous; and permanent. Culturally and legally (no fault divorce), the idea of permanence has disappeared. An article in the June 15, 2008 Our Sunday Visitor cites a statistic that over 70% of Catholics don’t think divorce is immoral. Two quick anecdotes. First, I had a receptionist many years ago who changed her mind about her fiancé but decided to go through with the wedding because to her it was easier to get divorced than suffer the embarrassment of sending out notice of wedding cancellation. Second, I had a student in my Catholic Perspectives Seminar this past spring who had never heard that marriage was supposed to be a life-long union until reading for my class. In other words, Fr. Coughlin – in his chapter – was the first person to propose to my student that marriage was permanent.
Marriage is in deep trouble, and the question is what to do about it. Some propose privatizing marriage by getting the state out of the business of privileging marriage. And, if marriage is merely about two (or more) people’s current and transitory preferences, then I’m not sure why the state ought to privilege it. Others argue that it should be opened up to SSM either as a matter of equality and/or as a matter of possibly strengthening the institution itself. As Rob indicates, arguments against this position have a hard time gaining traction in our culture, especially with the use of all sorts of reproductive technology. Several years ago I gave a CLE at the Christian Legal Society annual meeting entitled “Sex, Marriage, and Procreation.” In that talk, I argued that the gay marriage is a logical extension of Griswold v. Connecticut. (As an aside, advocates of SSM are not advocating for equality but for the privileging of SSM along with traditional marriage above all other forms of intimate association).
Biologically, 1 + 1 = 1 when it comes to the coupling of one man and one woman, but 1 + 1 = 0 when it comes to the coupling of two men or two women. In nature, one man and one woman make one reproductive unit. Does this biological fact signify a deeper reality about the nature of man and woman and the relationship between the two or is it merely a fact of nature that has been overcome by technology? Since I believe that the biology signifies a deeper reality – the complementarity of the sexes, and I further believe that the marriage is, as Fr. Araujo said, the foundation of the basic unit of society, I come to the conclusion that we must work to strengthen this wounded institution. But, strengthening it will not come about, IMHO, by extending its privileges to those who are categorically unqualified by reason of biology and what it signifies.
Will this argument be successful? Can it gain traction? Will it even get a hearing in our culture? Can it be articulated in a way that may be persuasive? I don’t know the answers to these questions, and I must confess doubt. One thing is clear, the argument cannot be successful in a secularist culture that sees nothing beyond the biological fact and our ability to overcome the biology. But, I do think that we can make the argument (whether successfully or not) in secular terms in a culture that is open to a deeper meaning.
My thoughts on this subject became clear to me once I understood (it took decades) why the unitive aspect of the marital act could not be separated from the procreative aspect. But, that is even a hard sell among Catholics who can talk in theological terms. But, that is for another day...
Tuesday, June 10, 2008
Elizabeth Brown’s answer to Susan’s question sums up my reasons eloquently. I am not necessarily advocating for an “Intimate Partnership Act,” but I do think there are good reasons for society to promote such bonds. When I said, it is "irrelevant to the state as to why someone would want to form such an association," what I had in mind was an analogy to the law of charitable deductions.
The charitable deduction imposes costs on society, including the cost of less tax revenue. The imposition of those costs is justified by the desire to promote a certain type of giving. But, it is irrelevant to the state why someone forms a non-profit organization or why someone gives to organization “A” rather than organization “B.” In short, the community has decided that promoting charitable giving by privileging such expenditures is in the common good. Employing principles of subsidiarity, the community allows individuals to form their own charitable organizations and to decide which, if any, organizations will receive their money. The same rationale could be employed with respect to state promotion of friendships; the state provides a broad form, leaving individuals free to decide whether to seek the benefits and burdens that this form of friendship entails.
Monday, June 9, 2008
Two questions in response to Rob's post, "Friends with Benefits."
First, philosphically (setting aside the practical problems and costs for the moment), what would be wrong with the state adopting an "Intimate Associations Act." These associations would be situated on a continuum between business associations and marriage (privileged domestic associations). This form of partnership could be used by any two or more persons who decided to form intimate friendship (with unspecified rights and duties) whether sexual or not. It could be used by two single brothers who want to share their lives in common. It could be used by two sisters raising their dead brother's child. It could be used by two or three friends who want to share life together. And, it could be used by homosexual partners who don't have the benefit of marriage. It would be irrelvant to the state as to why someone would want to form such an association and whether or not sex is involved (at least between consenting adults).
Second, you say "It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible." Why?
Saturday, June 7, 2008
Michael Perry, your post did warm my heart at many levels: Texana, the care of immigrants, radical orthodoxy, the Houston Catholic Worker, Casa Juan Diego, and much more. For further reading, see this 11 year old article on the Zwick's and their Catholic Worker community. The article is by my favorite author. The Zwick's also have a book, The Catholic Worker Movement: Intellectual and Spiritual Origins.
Friday, June 6, 2008
In reflecting on Fr. Coughlin's chapter, "Family Law: Natural Law, Marriage, and the Thought of Karol Wojtyla," in Recovering Self-Evident Truths: Catholic Perspectives on American Law, one of my seminar students expressed disappointment in the Family Law curriculum:
I do think that family law classes in law school should discuss ethical and emotional issues more. I was very disheartened to study family law and learn [primarily] how to boil down marriages to monetary values. I don't even think that we necessarily need [formally] to inject natural law [into the course], but even if we simply discussed the impact of divorce on people in more general terms we would learn to better serve our clients.
The Tulsa World Reports:
A federal judge on Wednesday halted one of the final implementations of House Bill 1804, Oklahoma new immigration law aimed at decreasing the use of illegal workers while addressing other immigration concerns.
U.S. District Judge Robin Cauthron granted a preliminary injunction in a case that has pitted the U.S. Chamber of Commerce and several Oklahoma chambers against the state.
The injunction prohibits two sections of House Bill 1804 from taking effect July 1. One section would require an employer to verify a worker's eligibility for employment within the United States before the employer could be eligible for state contracts. The other would require businesses to verify the work authorization status of individual independent contractors to avoid state tax penalties.
The U.S. Chamber of Commerce filed for an injunction in the state's Western District of federal court on Feb. 1. The lawsuit alleges that the challenged sections of the law are pre-empted by federal law and are unconstitutional under the Supremacy Clause of the U.S. Constitution.
For the rest of the story, click here.
Thursday, June 5, 2008
One of my 3L students, Ivan London, a non-Catholic, wrote an interesting paper (title above) applying – as an academic exercise – Catholic perspectives to questions surrounding the environment and economic growth. He focused on the controversy surrounding Sunflower Electric’s plan to build new coal-fired plants (the Holcomb Expansion) in western Kansas. Kansas’ governor three times vetoed legislative action to approve the project. His paper
focuses on the difficult decisions facing legislators and adjudicators who seek to regulate or to willfully refuse to regulate the pollution caused by energy production. Legislators and adjudicators not only will make many tough decisions, but also they must make these decisions. On the one hand, modern society demands production and consumption of energy and energy should not only be available to the wealthiest members of society. On the other hand, the processes that create energy often also create pollution. This paper will provide a decision framework that is founded upon “the transcendent and common nature of humanity,” giving primary consideration to the Catholic Church’s recent commentary.
* * *
The Catholic Church has frequently commented on economic development and environmental protection in the past two years. In October 2007 and February 2008, Archbishop Celestino Migliore addressed sustainable economic development before the United Nations General Assembly. Pope Benedict XVI included a discussion of environmental protection in his “Papal Message for ’08 World Peace Day.” … Recently, Pope Benedict Addressed the General Assembly of the United Nations on his apostolic journey to the United States, and the Holy See submitted a Note to the United Nations Trade and Development Conference in Accra, Ghana. While not exhaustive, this list shows that environmental protection and economic development stand at the forefront of modern Catholic dialogue.
A fundamental approach to solving [the Holcomb Expansion question] pervades the Catholic Church’s commentary. The approach requires that the parties involved remove the antagonism from the problem. Too often, as illustrated in Kansas, parties embrace either economic development or environmental protection as warring opposites. “Protecting the environment implies a more positive vision of the human being, in the sense that the person is not considered a nuisance or a threat to the environment, but one who holds oneself responsible for the care and management of the environment.” Statement by H.E. Archbishop Celestino Migliore Apostolic Nuncio, Permanent Observer of the Holy See, 62nd Session United Nations General Assembly ¶2 (Oct. 29, 2007). Legislators and adjudicators must approach economic development and environmental protection in human terms.
Economic development and environmental protection do not compete solely to the battlegrounds of reason; they are matters of love for humanity. See Randy Lee, Epilogue, in Recovering Self-Evident Truths: Catholic Perspectives on American Law, supra 341.
More specifically, environmental protection and economic development reflect integral components of the human being, the family, and the community. In the Catholic legal tradition, legal analysis should start with the proposition that “the infinite value of the human person” is the keystone self-evident truth. Lorenzo Albacete, A Theological Anthropology of the Human Person, in Recovering Self-Evident Truths. In this light, “economic development” is a misnomer. “Economic development” is not about developing an economy. Rather, economic development “is about the development of the human being” in the families and communities in which the human lives. Holy See Secretariat of State, Note to U.N. Trade and Development Conference 5 (Apr. 24, 2008). “[D]evelopment is not a target to reach; it is rather a path to follow: we can say that there is true development when persons are put in a position to follow their most important desires and ends.” Id.
London continues his analysis applying the doctrines of solidarity and subsidiarity, recognizing the need for state-wide and regional coordination while rejecting the Kansas legislature’s unsuccessful attempt at a cram-down. In his view Rod Bremby’s (Secretary of the Kansas Department of Health and Environment) “decision, after long deliberation with the Holcomb Expansion’s proponents, the KDHE staff, the Kansas governor, and the Kansas attorney general, represents the careful weighing of economic development and environmental protection urged by both the Catholic Church and the U.S. Supreme Court [Mass. v. EPA, 127 S.Ct. 1438, 1463 (2007)]. The Kansas legislature’s kneejerk, bullying reaction is the opposite.”
Any reaction?
