I encountered Thursday two hopeful items on one of the most famously (or infamously) contentious “social issues” of the day.
The first, A Pastoral Plan for the Support and Holistic Development of GLBTQ and Heterosexual Students at the University of Notre Dame, judging from the URL, is at least semi-official.
Follow the obligatory mind-numbing bureaucratic palaver is some good stuff (CCC is Catechism of the Catholic Church):
[N]umerous GLBTQ students seek additional support as they come to understand and live out their sexual orientation and gender identity during such a critical phase of their holistic development …
Lives of self‐giving love are not possible without “the long and exacting work of self‐mastery” (CCC, 2342), the self‐mastery that is “ordered to the gift of self in witness to God’s fidelity and loving kindness” (CCC, 2346). The University in its mission statement also references this self‐mastery when it states that it “prides itself on being an environment of teaching and learning that fosters the development in its students of those disciplined habits of mind, body, and spirit that characterize educated, skilled, and free human beings.” All must learn to govern their passions in disciplined ways on the road to lasting freedom …
… In beautiful terms, the Catechism proclaims that the virtue of chastity, “blossoms in friendship” and “leads to spiritual communion.” Indeed, “chastity is expressed notably in friendship with one’s neighbor. Whether it develops between persons of the same or opposite sex, friendship represents a great good for all” (CCC, 2347).
In framing this pastoral plan for the support, holistic development and formation of students who identify as GLBTQ, as well as their heterosexual friends and allies, the University of Notre Dame states that its goals and objectives, as well as its programs and initiatives, are consonant with the teachings of the Roman Catholic Church. The University calls all Notre Dame students, regardless of their sexual orientation or gender identity, to the disciplined development of the theological virtue of charity, the cardinal virtue of justice, and the moral virtue of chastity in lives of self‐giving love …
With the Church, the University continues to note “the distinction commonly drawn between the homosexual condition or tendency and individual homosexual actions” (The Pastoral Care of Homosexual Persons, 1986, #3) …
At the same time, the University also adheres to the Church’s teaching concerning homosexual actions. As a result, “Homosexual persons are called to chastity” and to “friendship,” and should cultivate “the virtues of self‐mastery that teach them inner freedom” (CCC, 2359). Indeed, each and every student at Notre Dame is called to nothing less. All Notre Dame students are urged to understand and live the teachings of the Church relative to their lives and expressions of sexual intimacy. The University recognizes that these teachings are in harmony with the longstanding position of the natural law tradition of the Church that, “Sexuality is ordered to the conjugal love of man and woman. In marriage the physical intimacy of the spouses becomes a sign and pledge of spiritual communion” (CCC, 2360). Consequently in its exhortation to all its students, the University echoes Church teaching that “the deliberate use of the sexual faculty, for whatever reason, outside of marriage is essentially contrary to its purpose” (CCC, 2352) …
(Emphasis added; H/T Lindsey Nelson on FaceBook) This is not going to be acceptable to those who’ve bought the idea that the Church needs to stay out of the bedroom (just as it’s to stay out of the parking lot during the self-indulgent ritual of tailgating), but it’s hopeful that Notre Dame can make a balanced and unapologetic statement that tacitly assumes the Lordship of Christ over that room as well as all others.
The second item is an excellent blog at First Things from Matthew J Franck of the Witherspoon Institute.
Franck summarizes standard equal protection jurisprudence, in a manner accessible to any intelligent reader who’ll make the effort, and then points out the irony that with its gain of political power a cultural cachet, the gay rights movement loses, not enhances, its judicial edge, and thus is likelier to have to fight for its desiderata through the ordinary democratic processes.
I cannot summarize it any better than that or any better than the author, whose offering I commend to you. I find it very hopeful that demands for judicial creation of SSM may be met with instructions to take it up with the various legislatures.
So, maybe these questions are, perhaps, going to be relegated to the nasty realm of politics, which has not been notable for its rationality of late. But I had begun drafting some thoughts appropriate to the political realm before I encountered the Franck article and the cases applying a rational basis standard to opposite-sex marriage laws. I apologize if what follows seems to jump around a bit. The timing nevertheless seems right.
My readership is small, but some readers may howl in derision or rage at the idea that gendered marriage is rational. The Massachusetts Supreme Court did so, but they’ve been known to be dead wrong (according to SCOTUS) in their bien-pensant derision, as when they required private citizens who organized an annual parade to include among the marchers a group with a homophile message they did not wish to convey.
But even such pugnacious progressiveness evokes a real question: What does one do with a longstanding law that rests on premises that today are so forgotten that their very rationality can be denied by brainy Judges? That, I think, is what faces the United State Supreme Court in cases about marriage that it entertained hearing last Friday.
What premises of historic marriage laws am I talking about? Things like:
- That in the marital act, a new organism of a sort is formed – the beast with two backs – which organism alone is capable of naturally propagating the human race. No man or woman can procreate without an opposite-sex counterpart. In this sense, marriage is “fundamental to the very existence and survival of the [human] race,” Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942)
- That the state has an interest in procreation, the ancillary issues it introduces, like inheritance, custody when a relationship ends, and so forth.
- That “long before marriage was a civil institution regulated by any of the . . . States, it was a religious contract . . . . [M]arriage as an institution owes its origins to religious roots . . . .” Ctr. for Inquiry v. Marion Circuit Court, 2012 U.S. Dist. LEXIS 170243
So I reject the argument that traditional marriage laws “rest on an irrational and invidious hatred, enshrined in law.”
On the other hand, Federal Courts have taken up the technique of striking down state constitutional amendments when opponents adduce some ineffable critical mass of hateful proponents. There’s no dearth of what reasonably can be heard as invidious hatred, inarticulate if not exactly irrational, when referenda are on the ballot to up the ante by freezing gendered marriage in the amber of state constitutions, not just statutes (which nobody would have thought necessary until the last 2-3 decades).
Striking down such referenda leaves open the validity of laws that simply assumed the gendered nature of marriage when there was nothing invidious or hateful about that assumption. I think those laws meet the “rational basis test” Matthew Franck describes, as also thought the Indiana Court of Appeals and as have now some Federal District Courts. It also leaves open that the politically powerless subjects of invidious hatred in one decade may become a virtual juggernaut in later decades, having no need of court intevention should the court think rationality a close call.
So what happens if the political debate starts. Defenders of “traditional marriage” may have some answering to do, because – and I’m going to generalize pretty broadly here – they:
- seem indifferent to couples who are supposedly married but permanently and intentionally “child-free;”
- are perfectly sanguine about out-of-wedlock births and child-rearing (a phenomenon to which even we conservatives have succumbed since legal abortion came along as an alternative);
- consider getting civilly divorced while remaining “religiously married” to reduce income taxes;
- shack up in their golden years, after the death of a spouse, to keep household social security benefits higher;
- divorce as often or oftener than those of those more frankly secular; and
- define marriage in terms of erotic attraction and the net government benefits.
All of this, and probably more, buttresses the case for same-sex marriage.
What’s to be done?
- Throw open the doors to same-sex couples? Why only couples? Why not extend those “net benefits” to threesome, foursomes, or entire communes full of “family”? You know, if you have a brain in your head and can concentrate on the logic for just a moment that someone will be arguing, sooner rather than later, that polyamory/polygamy is the subject of irrational and invidious hatred enshrined in law. On what principle will we deny their demands, having opened the door to same-sex couples in contravention of all real historic precedent?
- Better, I think, to step back and have a discussion on what we think marriage is, and given whatever consensus we can reach on that topic, what benefits government should be extending. In other words, if the traditional rationale poorly fits the contemporary iteration of marriage, tailor the government response instead of throwing open the door to the first of several groups demanding access to (i.e., redefinition of) the devolved institution. If a couple is intentionally child-free, for instance, what benefit does government derive from their pairing off? Why should their taxes be any lower than the unmarried childless cohabitants next door? Why should either neighbor be promised social security survivor benefits based on the other’s earnings rather than getting out and earning some benefits of their own? Are we to the point that government benefits should be tied to support of dependents who can’t support themselves, like children, aged or disabled people, rather than to the status of “married persons”?
Domestic Partnership and Civil Union laws – laws that give the benefits of marriage without the name – hold little appeal for me insofar as they beg the questions I’ve suggested we need to discuss. And in at least one case, the courts flipped the civil union compromise over by saying “if you give the benefits, only invidious discrimination can withhold the name.” You can’t win in Orwell’s world.
I don’t know political discussions would end up. I doubt that the conversation will ever even start because the SSM fans have momentum and are apt to demand unconditional surrender.
But maybe we can have the conversation if the Supreme Court says “Baker v. Nelson is hereby ratified and reaffirmed,” or if it goes into a bit more detail and says:
Gays and lesbians are not politically powerless, unable to make headway in the normal channels of democratic decision-making at the polls and in legislatures, thus needing the aid of the judiciary. The president of the United States opposes the Defense of Marriage Act and favors same-sex marriage. Legislatures in some states have established same-sex marriage, and in other states, civil unions. The people of four states went to the polls in November to decide this question—and we know what the result was. There is thus no constitutional basis for us to strike down DOMA, let alone decree SSM as the law of the land. We went down that road with abortion in ’73, and we’re not going there again.
If “truth is what nobody bothers arguing against any more,” then I intend to keep arguing against SSM as long as it seems to me to be folly.
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