{"id":50,"date":"2010-08-06T14:25:31","date_gmt":"2010-08-06T14:25:31","guid":{"rendered":"http:\/\/blog.beliefnet.com\/religionandpubliclife\/2010\/08\/post.html"},"modified":"2010-08-06T14:25:31","modified_gmt":"2010-08-06T14:25:31","slug":"post","status":"publish","type":"post","link":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/2010\/08\/post.html","title":{"rendered":"Arguing against same-sex marriage"},"content":{"rendered":"

“Do the
\ncitizens of a state have the right to define legal marriage as a
\nman-woman relationship? Or can courts overrule them on behalf of
\nsame-sex marriage?” So Russell Shaw began a piece<\/a> in that avatar of Catholic conservatism, Our Sunday Visitor<\/i>, a couple of weeks ago.<\/span> Shaw went on to acknowledge that courts have “the raw power” to do so, but “[w]hether doing it would be a rightful exercise of their power is questionable indeed.”<\/span><\/p>\n

I’d turn the question around and ask Shaw if he thinks citizens of a state have the right to define legal marriage as a same-sex relationship? Suppose, in a parallel universe, they did so, and a federal court overturned the vote. Would he regard that as a rightful exercise of judicial power? Or suppose, in that same parallel universe, the citizens had voted to give a woman the right to abortion, and courts overruled them on the grounds that fetuses have a right to life. I’m confident Shaw would be on board with that decision.<\/p>\n

Such considerations can help us parse the statement<\/a> issued by Cardinal Francis George, president of the USCCB, in response to U.S. District Judge Vaughn Walker’s constitutional slam dunk<\/a> of Proposition 8 in Perry<\/i> v. Schwarzenegger<\/i>:<\/p>\n

Marriage between a man and a woman is the bedrock of any society. The
\nmisuse of law to change the nature of marriage undermines the common
\ngood. It is tragic that a federal judge would
\noverturn the clear and expressed will of the people in their support
\nfor the institution of marriage. No court of civil law has the
\nauthority to reach into areas of human experience that nature itself
\nhas defined.<\/p><\/blockquote>\n

Here, the “clear and expressed will of the people” is a rhetorical feint, calculated to appeal to the majoritarian instincts of a democratic polity but carrying no real weight. For George, it’s not the will of the people but what “nature itself has defined” that matters. How does he know that nature has defined marriage as exclusively “between a man and a woman”? Not by revelation, but through the exercise of reason. It’s a matter of natural law, and therefore applicable to all people at all times. Or so the Catholic church teaches.<\/p>\n


\n
\nOther conservative Christians–notably evangelicals–base their
\nopposition to same-sex marriage on their reading of the Bible, but
\nrealize that, in America, you don’t get to argue social policy in court
\njust on the basis of your own moral or religious convictions. As Judge
\nWalker put it:<\/p>\n

A state’s interest in an enactment must of course be secular in nature.
\nThe state does not have an interest in enforcing private moral or
\nreligious beliefs without an accompanying secular purpose.   \n<\/p><\/blockquote>\n

And what the judge found was that the supporters of Proposition 8 could
\nnot demonstrate any secular purpose sufficient to establish a “rational
\nbasis” for denying same-sex couples the fundamental right to get
\nmarried. It would have been good see Cardinal George (or perhaps
\nPrinceton Prof. Robert George) offer some expert natural law testimony
\nat the trial and submit to cross examination. I very much doubt,
\nhowever, that either would have cleared Judge Walker’s bar.  <\/p>\n

In court, you don’t just get to create philosophical arguments to
\ndemonstrate that one-man-one-woman marriage is social bedrock. You’ve
\ngot to make some kind of empirical showing that such is indeed the case.
\nFacts are stubborn things, especially when there aren’t any. In the
\njudge’s words:<\/p>\n

Plaintiffs presented evidence at trial sufficient to rebut
\nany claim that marriage for same-sex couples amounts to a sweeping
\nsocial change. See FF 55. Instead, the evidence shows a neutral, if not a
\npositive, effect on the institution of marriage and that same-sex
\ncouples’ marriages would benefit the state. Id. Moreover, the evidence
\nshows that the rights of those opposed to homosexuality or same-sex
\ncouples will remain unaffected if the state ceases to enforce
\nProposition 8. FF 55, 62.The contrary evidence proponents presented is
\nnot credible. Indeed, proponents presented no reliable evidence that
\nallowing same-sex couples to marry will have any negative effects on society or on the institution of marriage.\n<\/p><\/blockquote>\n

Maybe such evidence will be forthcoming, but I doubt it. <\/p>\n

Same-sex marriage is not traditional. But, wrote the judge, “the state
\nmust have an interest apart from the fact of the tradition itself.”
\nHere, in fact, is the last redoubt of jurisprudential defenders of the
\nancien marital regime like Justice Antonin Scalia. As Scalia put it in
\nhis dissenting opinion in Romer<\/i> v. Evans<\/i><\/a>,
\na decision that overturned an amendment to the Colorado state
\nconstitution barring any jurisdiction from protecting homosexuals as a
\nclass from discrimination:<\/p>\n

The Court has mistaken a Kulturkampf for a fit of spite. The
\nconstitutional amendment before us here is not the manifestation of a
\n“`bare…desire to harm'” homosexuals, ante, at 13, but is rather a
\nmodest attempt by seemingly tolerant Coloradans to preserve traditional
\nsexual mores against the efforts of a politically powerful minority to
\nrevise those mores through use of the laws. \n<\/p><\/blockquote>\n

In other words, in the kind of culture war we’re having in America, it’s
\nOK to let the defense of traditional sexual mores trump constitutional
\nrights.<\/p>\n","protected":false},"excerpt":{"rendered":"

“Do the citizens of a state have the right to define legal marriage as a man-woman relationship? Or can courts overrule them on behalf of same-sex marriage?” So Russell Shaw began a piece in that avatar of Catholic conservatism, Our Sunday Visitor, a couple of weeks ago. 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After teaching at Harvard in the Department of History and Literature for three years, he became editor of the Boston Review. In 1987 he joined the staff of the Atlanta Journal-Constitution, where he worked variously as a reporter, editorial writer and columnist. In 1996 he became the founding director of the Leonard E. Greenberg Center for the Study of Religion in Public Life at Trinity College and in 1998 founding editor of Religion in the News, a magazine published by the Center that examines how the news media handle religious subject matter. In 2005, he was named director of the Trinity College Program on Public Values, comprising both the Greenberg Center and a new Institute for the Study of Secularism in Society and Culture directed by Barry Kosmin. In 2007, he became Professor of Religion in Public Life at the College. Professor Silk is the author of Spiritual Politics: Religion and America Since World War II and Unsecular Media: Making News of Religion in America. He is co-editor of Religion by Region, an eight-volume series on religion and public life in the United States, and co-author of The American Establishment, Making Capitalism Work, and One Nation Divisible: How Regional Religious Differences Shape American Politics. In 2007 he inaugurated Spiritual Politics, a blog on religion and American political culture.","url":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/author\/msilk"}]}},"_links":{"self":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/50","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/users\/222"}],"replies":[{"embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/comments?post=50"}],"version-history":[{"count":0,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/posts\/50\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/media?parent=50"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/categories?post=50"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.beliefnet.com\/columnists\/religionandpubliclife\/wp-json\/wp\/v2\/tags?post=50"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}