Saturday, November 12, 2005

fifth paper

Here is my Political Philosophy paper, mentioned here

I got it back a few days ago and got an A. The topic is a little different than how I originally planned. I decided to write it in a way that would show that the voice of the Church and the voice of the Courts (the ones that are still sound), when heard together, can actually provide a better defense of the traditional defintion of marriage than if one would only hear one or the other, as is the tendency today. I tried to show the striking parallels between statements from both institutions. It took a lot of work but I found the resulting body of evidence pretty interesting.

Now, just a little disclaimer to my "separated brethren" ;) a.k.a. Non-Catholics :)
This paper was written to a very narrow audience: my professor. So I was free to start with certain presumptions that I didn't have to build from the ground up. Also, I take the Church a little bit out of context so I highly encourage any readers to look up the relevant documents online and read the full context - they're pretty short - I'll provide links to them in the paper, for footnote 3:

Of the issues affecting society today, few are as highly debated as gay “marriage.”[1] From the halls of Supreme Courts to lecture halls of colleges and universities across the country, few people are neutral on its legality. When addressing it, one cannot ignore the two institutions with arguably the most authoritative voices on the matter: the Supreme Courts (federal and state) and the Catholic Church. But there are two tendencies involved here. The first is to hear one over the other: the Courts over the Church, because the Courts are more “reasonable” (or more suited to the public square); or the Church over the Courts, because she is more “faithful” (or more suited to the pulpit). The second tendency, which on many occasions includes the first, is to hear them both, giving them each their due, but separately, as if they contradict each other. In seeking to avoid both tendencies, brief arguments from both institutions will be highlighted in communio.[2] Starting from the conclusion that gay “marriage” has a negative impact on society[3], this essay will show that both institutions have very compelling reasons for one to oppose it – reasons that compliment rather than conflict with each other – and that if spoken in concert a more robust defense of the traditional understanding and definition of marriage can be made.

The Congregation for the Doctrine of the Faith, in the beginning of its March 2003 document regarding homosexual unions said, “Since this question relates to the natural moral law, the arguments that follow are addressed not only to those who believe in Christ, but to all persons committed to promoting and defending the common good of society.”[4] Here we see that Christians and non-Christians, Catholics and Protestants should all listen without fear. Here we also have the Church, as she always has, placing the issue of marriage (and in this case homosexual unions and by extension, gay “marriage”) at the level of the common good. The Courts would concur. Justice Martha B. Sosman in her dissent from the majority in Goodridge v Dept. of Pub. Health – the case that legalized gay “marriage” in Massachusetts – said, “this proffered change affects not just a load-bearing wall of our social structure but the very cornerstone of that structure.”[5] Indeed Maynard v. Hill proclaimed that marriage “is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress.”[6] It is interesting to note that the institution declared most capable of furthering authentic human progress is the one Goodridge declares to be our greatest enemy: “[It] ruled that our current marriage system is ‘caste-like’ resting upon ‘invidious distinctions’ that are ‘totally repugnant.’”[7]

Goodridge’s assault on the institution of marriage is not a recent phenomenon in our society. Casti Connubii (“Christian Marriage”), an encyclical letter of Pope Pius XI, says, “[It] appears all the more regrettable that particularly in our day we should witness this divine institution [marriage] often scorned and on every side degraded.” It goes on to speak of, “[T]hat genius… which, anxious only for truth, [considers itself]… emancipated… from all those old-fashioned and immature opinions of the ancients; and to the number of these antiquated opinions they relegate the traditional doctrines of Christian marriage.”[8] This “particular day” was December 1930.

How does this longstanding “scorn” of marriage, this “emancipation” from the “old-fashioned” and “caste-like” definition of marriage toward one that embraces homosexual unions, negatively impact the common good of society? The Congregation, in the document above, answers this question by looking at the ethical considerations of different “orders”: the “order of right reason,” the “biological and anthropological order,” the “social order,” and the “legal order.” Here we will see how considerations from each one matches up with those of Supreme Court cases in the United States.

Speaking from the “order of right reason,” the Congregation states that legalized gay “marriage” assumes “a more wide-reaching and profound influence, and would result in changes to the entire organization of society, contrary to the common good.” One of the “patterns of thought and behavior” it would influence would be “the younger generation’s perception and evaluation of forms of behavior. Legal recognition of homosexual unions would obscure certain basic moral values and cause a devaluation of the institution of marriage.”[9] Justice Robert J. Cordy, who also dissented in Goodridge, mirrors the Congregation:

As long as marriage is limited to the opposite-sex couples who can at least theoretically procreate, society is able to communicate a consistent message to its citizens [and especially its youth] that marriage is a (normatively) necessary part of their procreative endeavor; that if they are to procreate, then society has endorsed the institution of marriage as the environment for it and for the subsequent rearing of their children… [Gay “marriage”] would be a diminution in society’s ability to steer the acts of procreation and child rearing into their most optimal setting.[10]

Commonwealth v. Stowell and Hall-Omar Baking Co. v. Commissioner of Labor & Indus. would both agree.[11]

From the “biological and anthropological order,” the Congregation speaks more explicitly about the youth of society. It says that “as experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons.”[12] Justice Cordy, again, gives a similar response. Referring to Baker v. State, he says

[T]he raising of children by same-sex couples, who by definition cannot be the two sole biological parents of a child and cannot provide children with a parental authority figure of each gender, presents an alternative structure for child rearing that has not yet proved itself beyond reasonable scientific dispute to be as optimal as the biologically based marriage norm.[13]

Granted, the Church is more certain of these “obstacles” than the courts, but the similarity in their messages is still noteworthy.

Arguing from the “social order,” the Congregation adds:

Society owes its continued survival to the family, founded on marriage… If from the legal standpoint, marriage between a man and woman were to be considered just one possible form of marriage, the concept of marriage would undergo a radical transformation, with grave detriment to the common good.[14]

Skinner v. Oklahoma comments: “Marriage and procreation are fundamental to the very existence and survival of the [human] race”[15] Justice Cordy, once more in agreement, says, “The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.” Maggie Gallagher, President of the Institute for Marriage and Public Policy, adds an interesting opinion: “[T]he most likely result of same-sex marriage will not be the expansion of marriage benefits to more and more relationships, but the elimination of marriage as a legal status.”[16]

Finally, from the “legal order” we have our last parallel statement. Speaking of homosexual persons and the “real recognition of their rights as persons and citizens,” the Congregation concludes that “It would be gravely unjust to sacrifice the common good and just laws on the family in order to protect personal goods that can and must be guaranteed in ways that do not harm the body of society.” It suggests they should “make use of the provisions of law,” rather than marriage to ensure, as Maggie Gallagher calls it, an “administrative benefits package.”[17] Moe v. Secretary of Admin. & Fin. says, “[T]he state retains wide latitude to decide the manner in which it will allocate benefits.”[18] Justice Cordy adds, “There is no reason to believe that legislative processes are inadequate to effectuate legal changes in response to evolving evidence, social values, and views of fairness.” Massachusetts Fed’n of Teachers v. Board of Educ. and Mobile Oil v. Attorney Gen. both attest to the fact that the “Legislature may proceed piecemeal in addressing perceived injustices or problems [no matter how painfully slow this process may be to those seemingly offended]”[19]

At this point, we have seen several ways in which the Supreme Courts and the Catholic Church, both speaking on the negative impact of gay “marriage” on society, have very similar if not identical arguments. And we only looked at two key documents from the Church! We have shown that even in select documents, the Church is very much aware of the public landscape before her and the Courts (those that are still sound) are equally aware of the common good that she works so diligently to protect. In no way should the Courts and the Church be discouraged from speaking together in the public square. When separated or pitted against each other, their common outcry against a redefinition of marriage is only partially heard and those to be protected are slighted. Seeing their complimentarity here should give those in support of traditional marriage a more balanced, clearer, deeper, and louder (but not shrill) voice to be heard.[20]

[1] I’m working from the premise that since marriage is, by definition, between a man and a woman, gay “marriage” is an anomaly and so must be referred to in quotes. It is outside the scope of this essay to present the logical and moral foundation for marriage’s traditional definition.
[2] Or “in communion.” Dr. Paul Seaton points out in “Progress or Tyranny? The Goodridge Dissents,” (Fordham University), n. ii “The major Christian and Jewish traditions expressly make room for reason and reason’s deliverances in the economy of their faith: the Catholic, as is (or should be) well known, endorses natural law reasoning, the Jewish appeals to the Noahide Code, the Reformers and their followers appealed to the ‘first grace’ (natural law) and ‘the dictates of nature’; all refer to the second table of the Decalogue as moral-social truths available to unaided reason.” (Hereafter, “Progress or Tyranny?”)
[3] See the dissenting opinions in Goodridge v. Dept of Pub. Health, 798 N.E.2d (Mass. 2003) (hereafter, “Goodridge”); “(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman,” by Maggie Gallagher, University of St. Thomas Law Journal, Fall 2004 (hereafter, “Maggie Gallagher”); “Love and Marriage – and Family Law,” Public Interest, Spring 2005; “Progress or Tyranny?” supra; The Institute for Marriage and Public Policy at; Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons, Congregation for the Doctrine of the Faith, March 2003 (hereafter, “The Congregation”); Encyclical Letter of His Holiness Pope Pius XI, Casti Connubii (“Christian Marriage,” [hereafter, id.]), Dec. 1930; The Catechism of the Catholic Church #1601-1666 (hereafter, “CCC”); and many, many other sources.
[4] The Congregation, supra, #1
[5] Goodridge, supra
[6] Maynard v. Hill, 125 U.S. 190, 211 (1888)
[7] Maggie Gallagher, supra, p. 65
[8] Christian Marriage, supra, #44-45
[9] The Congregation, supra, #9
[10] Goodridge, supra
[11] See Commonwealth v. Stowell, 389 Mass. 171, 175 (1983) (given State’s broad concern with institution of marriage, it has “legitimate interest in prohibiting conduct which may threaten that institution”) and Hall-Omar Baking Co. v. Commissioner of Labor & Indus., 344 Mass. 695, 700 (1962) (“Legislative classification is valid if it is rational and bears some relationship to the object intended to be accomplished” [emphasis added]).
[12] The Congregation, supra, #7. The Congregation actually goes on to say, “They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.”
[13] Goodridge, supra. See Baker v. State, 170 Vt. 194,222 (1999) (“conceivable that the Legislature could conclude that opposite-sex partners offer advantages in the[e] area [of child rearing], although… experts disagree and the answer is decidedly uncertain”). Cf. Marcoux v. Attorney Gen., 375 Mass. 63, 65 (1978).
[14] The Congregation, supra, #8
[15] Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)
[16] Maggie Gallagher, supra, p. 37, n. 12
[17] Maggie Gallagher, supra, p. 35-43 goes into great depth on the idea of marriage as being an “administrative benefits package.” She says, “Since the advent of the gay marriage debate, the most prominent way of thinking about the relationship between law and marriage is to say that the law provides important marriage ‘benefits’” etc.
[18] Goodridge, supra, Justice Cordy’s dissent, [FN38]: Moe v. Secretary of Admin. & Fin., 382 Mass. 629,652 (1981).
[19] Goodridge, supra, Justice Cordy’s dissent: See, e.g., Massachusetts Fed’n of Teachers v. Board of Educ., 436 Mass. 763, 778 (2002); Mobile Oil v. Attorney Gen., 361 Mass. 401, 417 (1972)
[20] One final parallel statement gives us a glimpse of the magnitude of what is at stake, the first from Murphy v. Ramsey, 114 U.S. 15, 45 (1885); and the second from CCC, supra, #1657:
[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth… than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman… the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.
-- and –
It is [in the home] that the father of the family, the mother, children, and all members of the family… ‘by the reception of the sacraments, prayer and thanksgiving, the witness of a holy life, and self-denial and active charity’… [make up] the first school of Christian life and ‘a school of human enrichment.’ Here one learns endurance and the joy of work, fraternal love, generous – even repeated – forgiveness, and above all divine worship in prayer and the offering of one’s life. (emphasis added)

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