Doug Kmiec offers this response to my criticism of his op-ed supporting the federal marriage amendment:
On FOX News Sunday recently with Chris Wallace, John McCain said something similar, though less well anchored in the Catholic tradition. McCain proclaimed his opposition to the amendment, explaining it as deference to the states, and secondarily, on the ground that it is legally unnecessary. There are reasons -- unfortunately -- to question both propositions.
McCain rightly wants his home state of "Arizona [to] make [its own] decisions about the status of marriage . . . just as the people in Massachusetts and other states should make their decisions." Fair enough, local decision making is a core principle of federalism (and Catholic subsidiarity), but judges, not the people in local or even state-wide communities, seem to be getting the last word. By contrast, the very process of considering a constitutional amendment returns the issue to the people. Before a single word can be added to our federal charter, three-fourths of the states must agree. So while I agree with you that the perfect case would have been "bottom-up" without any federal intervention, I think four justices in Massachusetts and regrettably more to come have no intention of letting the people back into the conversation. The proponents of the amendment are merely asking for Congress - by a two-thirds vote of both houses - to let the people in their individual states engage in civil discourse and decide for themselves.
As for legal necessity, Senator McCain is under the misimpression that the Massachusetts mistake can be confined to the Bay state. That is unlikely. Similar litigation by gay activists from New Jersey to California is underway. If the activists prevail even in one or two venues, same-sex couples will migrate in greater numbers and press the courts of other states to recognize these judicially-invented licenses, and that, too, is another potential blow to localism. The Constitution's "Full, Faith and Credit" Clause was recently construed to require something comparable when an Oklahoma federal court invalidated a state constitutional amendment restricting recognition of out of state gay adoption. Congress in the 1990s passed the Defense of Marriage Act to allow individual states to maintain traditional marriage as a matter of public policy, but the federal judge in Oklahoma at least held there is no "roving public policy exception" to another state's legal judgments. The FFC clause is enigmatic and under-interpreted on this question, and, in my judgment, it simply cannot be counted on to protect the local voice.
Senator McCain is a thoughtful man, and I bet he, like you, is sincere when he raises the associational good of deferring to local discernment. Most in opposition to the federal marriage amendment, however, do it on a less reasoned basis; typically, out of a mistaken "live and let live" toleration. The witness of the Catholic faith, I believe, requires more of us. Subsidiarity does not deny the occasional help of the higher order, and this is one of those times. There is nothing intolerant in joining with one's neighbors assembled in state ratifying conventions -- a pretty decent approximation of the "marketplace of ideas" -- for the purpose of affirming, with the Bishops of the Church, that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife.
Rob
Texas law prof Brian Leiter has posted his paper, Why Tolerate Religion? Here's the abstract:
Religious toleration has long been the paradigm of the liberal ideal of toleration of group differences, as reflected in both the constitutions of the major Western democracies and in the theoretical literature explaining and justifying these practices. While the historical reasons for the special “pride of place” accorded religious toleration are familiar, what is surprising is that no one has been able to articulate a credible principled argument for tolerating religion qua religion: that is, an argument that would explain why, as a matter of moral or other principle, we ought to accord special legal and moral treatment to religious practices. There are, to be sure, principled arguments for why the state ought to tolerate a plethora of private choices, commitments, and practices of its citizenry, but none of these single out religion for anything like the special treatment it is accorded in, for example, American and Canadian constitutional law. So why tolerate religion? Not because of anything that has to do with it being religion as such—or so this paper argues.
Rob
Pepperdine law prof Doug Kmiec has an op-ed in today's Chicago Tribune arguing that a federal marriage amendment is needed to protect the autonomy of churches who oppose same-sex marriage:
With the states being so vigilant in defense of traditional marriage, is there really a need for the people to act? Yes. Activists are deployed across the country challenging traditional marriage, and it is more than likely that some additional judges will compound the Massachusetts mistake. This increased judicial approval of same-sex marriage will metastasize into the larger culture. Indeed, an insidious, but less recognized, consequence will be a push to demonize--and then punish--faith communities that refuse to bless homosexual unions.
While it may be inconceivable for many to imagine America treating churches that oppose gay marriage the same as racists who opposed interracial marriage in the 1960s, just consider the fate of the Boy Scouts. The Scouts have paid dearly for asserting their 1st Amendment right not to be forced to accept gay scoutmasters. In retaliation, the Scouts have been denied access to public parks and boat slips, charitable donation campaigns and other government benefits. The endgame of gay activists is to strip the Boy Scouts (and by extension, any other organization that morally opposes gay marriage) of its tax-exempt status under both federal and state law.
I agree with Prof. Kmiec that it would be a very bad thing for churches to lose their tax-exempt status for opposing gay marriage. But I disagree with his suggestion that the prudent solution is to enforce a top-down resolution of the issue, effectively shutting down any sort of localized marketplace of ideas, simply because we don't like the potential outcome(s). I'm a full supporter of the Supreme Court's ruling in Dale protecting the Boy Scouts' associational autonomy, in part because the ruling facilitated a localized, bottom-up approach to the issue. It's a good thing that other associations have staged boycotts and encouraged local governments to withhold support of the Boy Scouts -- that's how civil society should work. (I've made this argument elsewhere.) I think we're a long way from having traditional faith communities get the Bob Jones treatment from the IRS for not performing same-sex marriage. But more broadly, if we want to keep associational life in this country vibrant, we should be very hesitant to start handing contested moral issues over for one-size-fits-all collective solutions.
Rob
Thursday, May 25, 2006
Wisconsin's Catholic governor has rebuffed the bishops over his support of embryonic stem cell research, acknowledging the deep moral economic dimension of the issue:
Gov. Jim Doyle broke with Wisconsin's two most prominent Catholic bishops on Wednesday, bluntly telling them he would not rethink his strong support of embryonic stem cell research.
"While I appreciate your thoughts on this important issue, I also feel a responsibility to promote vital research which holds the potential to save countless lives and bring thousands of jobs to our state," Doyle, a Catholic, wrote in a letter to Milwaukee Archbishop Timothy Dolan and Madison Bishop Robert Morlino.
Finally, a politician who's willing to speak with some candor: yes, we'd like to save lives, but when it comes down to it, embryonic research is just another job creation package. The gold rush continues.
Rob
Wednesday, May 24, 2006
A New York Times editorial suggests that the Catholic Church has threatened to excommunicate the judges on Colombia's Constitutional Court who have granted limited abortion rights. Is this true? If so, is this the first time that the abortion/excommunication fracas has extended from politicians to judges?
Rob
UPDATE: Chris Green points out that a Southern Baptist version of a judge's excommunication resulted from the Schiavo case.
Judge John Jones, who struck down the Dover, Pennsylvania school board's intelligent design policy, gave the commencement address at his alma mater last weekend. (HT:CT) Basking in the limelight of his ruling, apparently he has now turned to setting the record straight on the founders' view of religion:
"The founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry," said Jones, who was thrust into the national spotlight by last year's court fight over the teaching of evolution in the Dover school district.
The founding fathers - from school namesake John Dickinson to Alexander Hamilton and Thomas Jefferson - were products of the Enlightenment, Jones said.
"They possessed a great confidence in an individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason," he said.
It seems a bit strange that, after criticizing the Dover school board for setting up a false conflict between religious belief and rational inquiry, Judge Jones is using a woefully simplistic characterization of the founders' beliefs to set up a false conflict between rational inquiry and "something handed down by a church or contained in a Bible."
Rob
Tuesday, May 23, 2006
My colleague Lisa Schiltz suggests that my frustration with Catholic singing might be remedied by spending some time in ethnic parishes:
The church where I was married was a tiny, old traditionally Polish parish church in the tiny steel town of Carnegie, Pennsylvania, outside of Pittsburgh. The church itself has since been consolidated, but in the years I attended those masses with my father, the music was, I think, one of the most important parts of the worship experience for most of the older parishioners of Polish heritage. The American hymns were sung dutifully, but when the organist cranked out an old Polish hymn, the (somewhat screechy, usually not any where near in tune) older parishioners would raise the roof. Over the last couple of nights I found myself finally watching the network miniseries on Pope John Paul II that we recorded months ago, and I was struck by how many of the Pope’s most emotional moments of communication with crowds involved the Polish people singing various Polish hymns – often as much an expression of ethnic, political identity as an expression of faith, but in these situations Catholic hymns clearly had as much power as the words that were being spoken around them.
One of the most incredible Mass experiences Pat and I ever had was at a tiny Catholic church in a predominantly Black parish in Mississippi, where the music was absolutely transporting – probably reflecting evangelical influences, I’ll grant you that. With respect to parishes closer to home, Fr. Kevin McDonough tells stories of the music at St. Peter Claver parish, where the Ethiopian immigrants have positively electrifying Masses in which the music is key. And even in our own pretty bland, white, suburban parish, some of the most beautiful music, the tunes that really get our entire parish singing and sometimes even clapping along, tend to be the ones (from the same, rather-bland song-book that has “On Eagles Wings”) with notations indicating they come from a Spanish or African (or sometimes even Irish) traditional songs.
Rob
Continuing our (distinctly non-legal) discussion on Catholics and singing, a reader takes issue with the opinion of the reviewer I cited below:
I think he is mistaken regarding the purposes of Catholic liturgical music. Apart from the Kyrie, Catholic liturgical music is oriented toward praise (Gloria, sanctus, benedictus), not some sort of works-oriented atonement theology.
Further, much of the difference in liturgical/sacred/religious music is cultural and linguistic. The Reformation, as you know, was largely a cultural break as well as a theological one, as the boundary of the Reformation fits nicely with the boundary of the old Roman empire. . . . And sacred music was shaped by the language it was set to. As Latin is orderly, monotonous, and consistent, its music is much the same. However, German is more of an emotionally-charged language with more forceful sounds. Thus, the classic German hymns are a natural outgrowth of the language.
This raises yet another thorny question: Do I love Protestant hymns because I love German drinking songs, or do I love German drinking songs because I love Protestant hymns?
Rob
