Proposition 8 and a Good America
Yesterday, California joined a handful of other states in overturning their ban on same-sex sexual relationships being legally identified as "marriages." Many commentors and I are sure that this means that this controversy will make its way to the Supreme Court.
In the interim, lobbyists and lawmakers will be scrambling to preserve the interests of their constituencies. What are these interests? The cool timbre of legal explanations will hold forth various arguments.
Proponents of same- sex "marriage" will argue against discrimination with regards to the natural rights of homosexual persons to free expression and association. They will claim the right to privacy, the fact that the choice of a marriage partner and the right to marry is a fundamental human right, and that the interests of adopted children who are involved in such relationships might benefit from the security of a "marital" home. In particular, they will argue the 1993 holding of Baehr v. Lewin, that homosexual persons are entitled to equal protection under the law. They will hold forth the 1999 conclusion of Baker v. VT, that the state cannot exclude same sex couples from the benefits and protections which its laws provide to heterosexual married couples, and that same sex couples are constitutionally entitled to all of the common benefits afforded to married couples. And they will challenge their opposition to prove a rational basis, given these facts, that can justify the exclusion of same sex couples from "marriage" on reasonable grounds.
On the other hand, those who fight for the traditional norm of heterosexual marriage will remind this nation that the legalization of same sex relationships as "marriages" will separate the properly intrinsic link between sexuality, marriage, and procreation. They will argue that such authorization creates an unhealthy environment for the children adopted into the same sex household, as well as for those children who are engineered for the same sex couple in the most cumbersome ways, while also contaminating the moral atmosphere for all young people. They will ask why our society should be forced to endorse that which the larger society holds to be immoral, in as much as the practical affirmation of marriage "costs" our society in terms of tax breaks and benefits; they will propose, in sum, that the United States courts cannot conclude that a right to same sex marriage is so rooted in the traditions or collective conscience of the people that failure to recognize it would violate the fundamental principles of liberty and justice. In other words, such a “right” to the legal recognition of same sex relationships is not so implicit in the concept of ordered liberty that it would become the case that neither liberty nor justice could succeed if that "right" were sacrificed. Declining to recognize gay relationships as "marriage" is not to authorize an unjust deprivation of proper entitlements, nor is a state's refusal to recognize such relationships sufficiently grievous, coercive, or intrusive to amount to the "deprivation" of a natural or legal right.
...And in response to the traditional arguments against the authorization of same sex relationships, proponents of homosexual "marriage" will reply that our arguments are "all about religion," and the intrinsic link which all religious traditions recognize between sexual intercourse, marriage, and children, and the concurrent recognition of the inherent disorder which distorts every homosexual sexual act. And they will be right.
This is the sort of juncture where we have to throw the towel in with regards to our highly sterilized and Gnostic presumption of a separation between Church and state, when no such stern dichotomy can actually exist between religious structures and a society of religious people. By definition, a religion is that which proposes a normative truth, ensconced in a normative system, applicable to all of life. The Catholic Church understands this; and while she gladly acknowledges a nation's claim to civil life, structures, and autonomy, she does not cease to propose the universal norms which she understands to be the truth about the world and about all people. One of these truths which the Church proposes is that not every "right" is to be exercised, if the goal is real freedom, strength, and civic excellence; accordingly, another such truth is that those who are empowered to make and interpret laws will only fulfill their responsibilities when they legislate broadly to affirm the deeper truths that enable and assist persons to be truly free. To authorize sexual license apart from real moral structures is to fail in this responsibility; that's why our laws prohibit statutory rape, incest, polygamy, prostitution.
(This is the case even though I have seen some fairly tight arguments to the contrary pop up in family law textbooks- a merely Constitutional case can be made for the legalization of incest, believe me- but here the inevitable question always arises as to what is truly good)
And yes, our objections to same sex "marriage" are all about religion. The Church interprets her Scriptures and her own history in such a way that enables her to speak to the current situation with stunning clarity. Writing in 1968, and without direct reference to the issue of homosexual relationships, Pope Paul VI warned in Humanae Vitae that our culture's gradual and contraceptive dissociation of the intrinsic link between sexuality, marriage, and procreation would lead to the isolation of each, the exploitation of each, and a disordered approach to each. The Pope held forth what the Church undertands to be the truth about marriage, about sexuality, and its fruits:
(We hold) the inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act. The reason is that the fundamental nature of the marriage act, while uniting husband and wife in the closest intimacy, also renders them capable of generating new life—and this as a result of laws written into the actual nature of man and of woman. And if each of these essential qualities, the unitive and the procreative, is preserved, the use of marriage fully retains its sense of true mutual love and its ordination to the supreme responsibility of parenthood to which man is called.
Against such a religious definition of the proper ordering of sex and marriage, homosexual partners demand the right to receive national and state benefits and authorization for their decision to have sex with each other, in a stable sort of way. Is this marriage and family, in the way the Church understands it? No. Is it plausible that a compelling Constitutional argument can be made for the rights of homosexual persons to receive legal benefits for their decision to have continuous and monogamous sex with each other? Yes. But in as much as the Church (and all other religious traditions) hold forth what may (to the secular audience) be the actual truth about persons, marriage, and family, then the exercise of a legal right to imitate marriage may lead to our demise as we attempt to enact a new sort of "marital" institution based on a delusion. When our nation ceases to order its life within reality, even in the purported name of justice, we will cease to be an instantiation of sound civic order among the nations of the world; we will become as fragile as another social construct. It's a risk. The world's religious traditions have millenia on our innovative little USA.
Alexis De Toqueville, one of our colonial statesmen, had this in mind when he remarked that America, and her constitution and legal structures, were great- technically- only because they were good- morally. And he continued that when America ceased to be "good," in the way that religious and moral traditions describe goodness, she would cease to be great. Yes friends, in that way, we are "all about religion."
In the interim, lobbyists and lawmakers will be scrambling to preserve the interests of their constituencies. What are these interests? The cool timbre of legal explanations will hold forth various arguments.
Proponents of same- sex "marriage" will argue against discrimination with regards to the natural rights of homosexual persons to free expression and association. They will claim the right to privacy, the fact that the choice of a marriage partner and the right to marry is a fundamental human right, and that the interests of adopted children who are involved in such relationships might benefit from the security of a "marital" home. In particular, they will argue the 1993 holding of Baehr v. Lewin, that homosexual persons are entitled to equal protection under the law. They will hold forth the 1999 conclusion of Baker v. VT, that the state cannot exclude same sex couples from the benefits and protections which its laws provide to heterosexual married couples, and that same sex couples are constitutionally entitled to all of the common benefits afforded to married couples. And they will challenge their opposition to prove a rational basis, given these facts, that can justify the exclusion of same sex couples from "marriage" on reasonable grounds.
On the other hand, those who fight for the traditional norm of heterosexual marriage will remind this nation that the legalization of same sex relationships as "marriages" will separate the properly intrinsic link between sexuality, marriage, and procreation. They will argue that such authorization creates an unhealthy environment for the children adopted into the same sex household, as well as for those children who are engineered for the same sex couple in the most cumbersome ways, while also contaminating the moral atmosphere for all young people. They will ask why our society should be forced to endorse that which the larger society holds to be immoral, in as much as the practical affirmation of marriage "costs" our society in terms of tax breaks and benefits; they will propose, in sum, that the United States courts cannot conclude that a right to same sex marriage is so rooted in the traditions or collective conscience of the people that failure to recognize it would violate the fundamental principles of liberty and justice. In other words, such a “right” to the legal recognition of same sex relationships is not so implicit in the concept of ordered liberty that it would become the case that neither liberty nor justice could succeed if that "right" were sacrificed. Declining to recognize gay relationships as "marriage" is not to authorize an unjust deprivation of proper entitlements, nor is a state's refusal to recognize such relationships sufficiently grievous, coercive, or intrusive to amount to the "deprivation" of a natural or legal right.
...And in response to the traditional arguments against the authorization of same sex relationships, proponents of homosexual "marriage" will reply that our arguments are "all about religion," and the intrinsic link which all religious traditions recognize between sexual intercourse, marriage, and children, and the concurrent recognition of the inherent disorder which distorts every homosexual sexual act. And they will be right.
This is the sort of juncture where we have to throw the towel in with regards to our highly sterilized and Gnostic presumption of a separation between Church and state, when no such stern dichotomy can actually exist between religious structures and a society of religious people. By definition, a religion is that which proposes a normative truth, ensconced in a normative system, applicable to all of life. The Catholic Church understands this; and while she gladly acknowledges a nation's claim to civil life, structures, and autonomy, she does not cease to propose the universal norms which she understands to be the truth about the world and about all people. One of these truths which the Church proposes is that not every "right" is to be exercised, if the goal is real freedom, strength, and civic excellence; accordingly, another such truth is that those who are empowered to make and interpret laws will only fulfill their responsibilities when they legislate broadly to affirm the deeper truths that enable and assist persons to be truly free. To authorize sexual license apart from real moral structures is to fail in this responsibility; that's why our laws prohibit statutory rape, incest, polygamy, prostitution.
(This is the case even though I have seen some fairly tight arguments to the contrary pop up in family law textbooks- a merely Constitutional case can be made for the legalization of incest, believe me- but here the inevitable question always arises as to what is truly good)
And yes, our objections to same sex "marriage" are all about religion. The Church interprets her Scriptures and her own history in such a way that enables her to speak to the current situation with stunning clarity. Writing in 1968, and without direct reference to the issue of homosexual relationships, Pope Paul VI warned in Humanae Vitae that our culture's gradual and contraceptive dissociation of the intrinsic link between sexuality, marriage, and procreation would lead to the isolation of each, the exploitation of each, and a disordered approach to each. The Pope held forth what the Church undertands to be the truth about marriage, about sexuality, and its fruits:
(We hold) the inseparable connection, established by God, which man on his own initiative may not break, between the unitive significance and the procreative significance which are both inherent to the marriage act. The reason is that the fundamental nature of the marriage act, while uniting husband and wife in the closest intimacy, also renders them capable of generating new life—and this as a result of laws written into the actual nature of man and of woman. And if each of these essential qualities, the unitive and the procreative, is preserved, the use of marriage fully retains its sense of true mutual love and its ordination to the supreme responsibility of parenthood to which man is called.
Against such a religious definition of the proper ordering of sex and marriage, homosexual partners demand the right to receive national and state benefits and authorization for their decision to have sex with each other, in a stable sort of way. Is this marriage and family, in the way the Church understands it? No. Is it plausible that a compelling Constitutional argument can be made for the rights of homosexual persons to receive legal benefits for their decision to have continuous and monogamous sex with each other? Yes. But in as much as the Church (and all other religious traditions) hold forth what may (to the secular audience) be the actual truth about persons, marriage, and family, then the exercise of a legal right to imitate marriage may lead to our demise as we attempt to enact a new sort of "marital" institution based on a delusion. When our nation ceases to order its life within reality, even in the purported name of justice, we will cease to be an instantiation of sound civic order among the nations of the world; we will become as fragile as another social construct. It's a risk. The world's religious traditions have millenia on our innovative little USA.
Alexis De Toqueville, one of our colonial statesmen, had this in mind when he remarked that America, and her constitution and legal structures, were great- technically- only because they were good- morally. And he continued that when America ceased to be "good," in the way that religious and moral traditions describe goodness, she would cease to be great. Yes friends, in that way, we are "all about religion."
posted by MM at 7:51 AM
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