Last month Jonathan Turley filed a complaint challenging Utah's criminalization of polygamy. I hadn't even heard about it until a reporter called to ask about it, but now that I've had to give it some thought, I find it an extremely interesting and challenging case. Turley is not challenging the exclusion of polygamy from the state's definition of marriage; he's simply challenging its criminalization. Not surprisingly, he relies heavily on Lawrence v. Texas, and there is something to be said for this argument -- just as the state cannot intrude on the privacy of two individuals' intimate same-sex sexual relationship, so (Turley says) is the state forbidden from intruding on the privacy of multiple adults' intimate plural sexual relationships. The potential distinction lies in Turley's characterization of "plural families" as "private conduct between consenting adults." I agree that, if a group of adults decided to engage in multiple sexual relationships within the group in the privacy of their home(s), the state would have a hard time prosecuting them in the wake of Lawrence. But Utah is only threatening to prosecute adults who are living openly (and very publicly, given the television reality show, "Sister Wives," that is based on the lives of Turley's clients) as a polygamous family in fact, if not in law. Crucially (in my view), they are also raising children within that polygamous family. When we're talking about raising children, we're not talking about strictly private conduct and we're not under Lawrence. That doesn't settle the matter, though. Three lingering questions:
1) Assuming that the state portrays its interest in criminalizing the conduct as relating to the well-being of children, who bears the burden of proof to show the link between polygamous families and children's well-being? Does the state have to come forward with empirical evidence to support its interest, or is enough to say, "We believe that there is a plausible basis for enshrining in law the importance of having parents equally committed to each child within the family?" In the SSM context, it appears that courts are becoming more inclined to give the states the burden of proof, and I'm not sure if Utah would be able to produce evidence to satisfy the burden here. Of course, it's very difficult to come up with empirical evidence justifying a prohibition unless the prohibition is lifted.
2) Should advocates of parental rights be concerned if the state is permitted to criminalize parental conduct based on assertions of children's well-being absent demonstrable evidence? Assuming that straight moral condemnation is taken off the table by Lawrence, if courts interpret children's well-being loosely, could that create problems down the road for families who rear their children based on other sorts of counter-cultural norms?
3) Though Turley claims to have no interest in challenging the marriage laws, if he wins this suit, will there be a state interest sufficient to justify polygamists' exclusion from state-recognized marriage? Of course there is a conceptual difference between throwing someone in jail for their relationships and giving their relationships official recognition, but is there an articulable difference in the state's interests in this context? We've seen Lawrence invoked in some SSM cases (as Scalia predicted); if there is no good reason for the state to criminalize polygamy, is there any good reason for the state not to recognize polygamy?
Monday, August 8, 2011
John Stott died recently (while I was on vacation), and his passing should not go unnoticed on MoJ. David Brooks explained, back in 2004:
[I]f evangelicals could elect a pope, Stott is the person they would likely choose. He was the framer of the Lausanne Covenant, a crucial organizing document for modern evangelicalism. He is the author of more than 40 books, which have been translated into over 72 languages and have sold in the millions. Now rector emeritus at All Souls, Langham Place, in London, he has traveled the world preaching and teaching. . . .
It is a voice that is friendly, courteous and natural. It is humble and self-critical, but also confident, joyful and optimistic. Stott's mission is to pierce through all the encrustations and share direct contact with Jesus. Stott says that the central message of the gospel is not the teachings of Jesus, but Jesus himself, the human/divine figure. He is always bringing people back to the concrete reality of Jesus' life and sacrifice.
Nicholas Kristof wrote another tribute after Stott's death. Christianity Today has much more information on his life here. If you're looking for a nice example of the clarity of Stott's thought and writing, you can start with a classic: Basic Christianity.
Monday, July 25, 2011
Reading The Washington Post's profile of late-term abortion provider LeRoy Carhart, I was struck by this line:
Most doctors will not perform abortions beyond 22 or 24 weeks for various reasons, including legal concerns, social stigma, inadequate training or inexperience.
Lots of reasons, but one glaring omission. I guess personal moral convictions play no role here?
Helen Alvare has posted a two-pronged critique of the coming HHS contraceptive coverage mandate.
First, the problematic premise of the mandate:
Women’s well-being suffers under a system operating according to the maxim “unprotected sex makes babies.” The Church predicted as far back as 1968 in the encyclical Humanae Vitae that such an ideology would lead to the devaluation of sexual intimacy and of women’s sexual dignity, in particular. For decades, and to the present day, a robust literature—economic, sociological, and psychiatric—indicates that the complete separation of the idea of sex from the idea of procreation does not in fact favor women’s preferences about sex, dating, or marriage. . . . the rates of every outcome harmful to women—uncommitted sexual encounters, sexually transmitted infections, nonmarital births, and abortion—have climbed precipitously during the decades that the federal government has escalated both public and private support for contraception.
Second, the implications for institutional conscience:
Even if its warning about women’s health goes unheeded, however, conscientious health care providers, especially religious ones, ought not to be forced to participate in HHS’s plan to heighten the profile of contraception in women’s health care. Catholic medical institutions are the largest providers of health care to women and men in the United States. Catholic employers serve vast numbers of poor and immigrant and other vulnerable populations. In fact, their social services, health care, and educational facilities regularly pick up the pieces of lives injured by the prevailing sexual marketplace, a marketplace that the federal government is preparing not only to affirm but to exacerbate. At the very least, religious entities ought not to be forced to become complicit in such a plan.
The first argument is a very tough sell today; the second one should not be unless we've lost sight of the value of institutions.
Friday, July 22, 2011
A couple of days ago I criticized William Jeynes for making an unsubstantiated leap from evidence that single parenthood and broken homes create economic hardship to the assertion that families other than those headed by two biological parents create economic hardship. Today he has a follow-up essay, and thankfully he focuses primarily on single parenthood. He still, however, throws in some other arguments in an effort to bring all nontraditional family structures into the picture (e.g., citing research that parents are less likely than stepparents or other sexual partners to abuse children in the household), but none of those arguments advance his initial thesis that two-biological-parent families are essential for economic flourishing. And then there's his conclusion:
Americans would do well to substantially reduce the extent to which they rely on government for economic solutions to the nation’s struggling GDP and instead rethink their definition of a healthy family based on eternal principles that have stood the test of time.
These arguments really make me squirm. I'm all in favor of reducing the size of government, and I'm encouraged by the tentative signs that folks in DC are finally talking seriously about taking on the entitlement programs. I'm also all in favor of supporting the culture of marriage, recognizing both the economic and non-economic costs of single parenthood and broken homes. But these are two separate arguments, and they need to be carefully laid out because either one can easily escape the boundaries of reality-based recommendations and enter the realm of ideological trump cards. When we essentially say, "Let's stop relying so much on the government to help people and return to families headed by two biological parents," that tends to come across as cold-hearted to those who could be helped by government intervention, and it can provide an easy excuse for folks to blame the poor for their own predicament. As Archbishop Nienstedt (no shrinking violet on marriage) recently argued in the context of Minnesota's budget battle, "Government and other institutions have a shared responsibility to promote the common good of all members of our society, especially families who struggle to live with dignity during difficult economic times."
Wednesday, July 20, 2011
Does a Catholic innkeeper have the right to decline to host a same-sex wedding reception? At least in Vermont, the answer will undoubtedly be "no." My own view is that the innkeepers may properly be subject to boycotts, protests, etc., for staking out such morally contested positions, but I do not believe that they should be subject to the coercive power of the state for such positions absent a showing that they have blocked meaningful access to a good or service deemed essential by the political community. Note that the couple had no difficulty booking another venue.
Over at Public Discourse, William Jeynes argues that "the surge of non-traditional family structures has unleashed deleterious forces upon the American economy for nearly five decades." The essay's title and intro emphasize the relationship between economic prosperity and "the two-biological-parent family." The essay itself, though, focuses on broken homes and the rise of single parenting. The essay reflects, in my view, a recurring flaw of many anti-SSM arguments, as there is a tendency to be a little too quick to use evidence of ills associated with single parenthood as evidence of ills associated with all non-traditional family structures. There is no dispute that single parenthood creates economic hardships for the kids and the broader society. But we need additional evidence to make the jump that families headed by a same-sex couple create the same economic hardships.
I'm wondering if the new mandatory contraceptive coverage for health insurance plans creates even starker requirements than I contemplated in my earlier post. The California and Massachusetts statutes mandating contraceptive coverage included exemptions for religious organizations, but the exemptions weren't broad enough to cover Catholic Charities. If the new health care law mandates coverage of contraceptives for all health insurance plans not "grandfathered" under the law (i.e., pre-existing plans with no major changes), then won't every employer, including any Catholic Archdiocese, eventually be covering contraceptives? Is there any mechanism by which to opt out? Doesn't the health care law apply to self-insured plans as well? I hope that my concerns are misplaced -- could someone identify the path by which a church could avoid covering contraceptives five years from now?
