CrossCurrents: gay marriage

Showing posts with label gay marriage. Show all posts

Thursday, November 20, 2014

#424: All in the Francis Family?

The 2014 Synod on the Family offered echoes of the past and hopeful clues to the future.

Last month’s Synod on the Family in Rome is still fresh news for two reasons. First, its work will not really be done until the end of another Synod, to take place in the fall of 2015. Second, the work the Synod has accomplished already provides significant pointers for the direction of Catholic life.

The Synod is shaping up, in fact, as the most promising transformative event in Catholicism since Vatican Council II (1962-1965). For me, the Synod so far is notable for four things: (1) the leadership of Pope Francis; (2) the echoes of dynamics and themes from Vatican II; (3) the echoes of Vatican II documents; (4) the struggle to accept the truth about civil marriage.

1. The Leadership of Pope Francis. It is obvious by now that the phenomenal worldwide popularity of Francis is due more than anything else to his personal manner. In organizing the Synod, his style once again has reminded many of us of Pope John XXIII (who convened Vatican II).

For one thing, Francis appears decisive, and unafraid of criticism. For another, he stresses the pastoral dimensions of church life over the doctrinal requirements: he speaks much more of God’s mercy than of “truth” or rules. Francis showed this in his choice last spring of Cardinal Walter Kasper of Rottenburg-Stuttgart (Germany) to deliver an address to prepare for the Synod.

Kasper

Kasper, true to his progressive reputation, suggested the possibility of changes in the Church’s pastoral approach to divorced and remarried couples. Francis’ style also showed September 14 at Saint Peter’s Basilica, when he presided over the weddings of 20 couples, some of whom were living together.

It showed again in his decision to have real live married couples address the Synod fathers, including one couple who spoke of their friends’ decision to accept their daughter’s same-sex partner.

We have had many Synods since Vatican II, but none directed by a pope who acts like St. John XXIII.

Saint John XXIII in 1963

2. Echoes of Vatican II. Francis is, after all, the first pope since John XXIII who was not a bishop at Vatican II. He experienced it like the rest of us—he received its work as a challenge. He knows its history, and clearly he feels that its potential has not been fully realized. No surprise, then, that his style reflects an attempt to complete John XXIII’s work.

Francis’ final address to the Synod reminds us of the addresses both John XXIII and Paul VI gave at Vatican II. He speaks of reading the signs of the times, of learning how to respond to contemporary challenges, of learning how to rethink the tradition in contemporary terms rather than reacting negatively to simply avoid reform.

This stress on how best to reach out to the world around us, to focus on helping people rather than protecting doctrine, harkens back to the dynamics and climate of Vatican II, which Paul VI described as pervaded by a tone of “profound optimism.”

Pope Paul VI

One Vatican spokesperson express the same outlook when he suggested that talking of unmarried couples “living in sin” or of gay people’s “disordered orientation” is not the kind of language that attracts people to the Catholic Church.

Of course, there was a great deal of polarization among the hierarchy at Vatican II, and the same has been true of the Synod, to the point where some bishops have quietly talked about the danger of schism. This recalls Cardinal Ottaviani, the most conservative bishop at Vatican II, publicly hoping to die before Vatican II’s end. “That way,” he said, “I will still be dying in the Catholic Church.” So too the Synod has begun to surface the misgivings of many conservative bishops about the direction Francis is taking, while also exposing them as minority voices--just as happened at Vatican II.

3. The Documents of the Synod also recall the documents of Vatican II. When studying the Council, it is usually instructive to compare early drafts with final drafts, because they often showed movement as texts underwent debate, discussion, and finally votes. The same thing happened in 2014. Why? First, because when the majority drafts documents reflecting the majority view, drafts have a reformist, progressive tone that is surprising, even radical. Second, because the final drafts often step back from such progressive proposals.

This is not because the majority changes its mind, but because the ethos of hierarchical decision-making constantly seeks consensus.

Synod Session

The documents are voted on, but no one wants a close vote. Everyone wants each document to receive overwhelming approval (as did the documents of Vatican II). But getting a “supermajority” requires that final drafts incorporate words and tone which attract the votes of conservative (minority) bishops.

Thus two lessons coming out of Vatican II apply equally well here: First, the final draft of nearly all of such documents is more conservative than earlier drafts because they water down the progressives’ main positions. Second this means that a strong current at the Synod was more progressive than the final document reveals. So we should read the document’s tone as conservative political packaging of the Synod’s progressive pastoral agenda.

4. Accepting the Truth about Civil Marriage. This conservative shift to garner votes for the final draft was particularly significant with the Synod’s references to both homosexuals in general and homosexual unions in particular. While earlier drafts had urged the Church to “welcome” gays, the final draft simply proposes that the Church “provide for” them. And while early drafts suggested that homosexual unions might bring benefits for the partners, the final draft offered no such positive assessment. In fact, the final draft reflected the bishops concern to stress:

There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God’s plan for marriage.

But even here there may be hope of reform. For even as the bishops reject equating heterosexual marriage and homosexual unions, at least some bishops are also ready to reject equating civil marriage with the sacrament of Matrimony. This is significant, since the confusion of civil marriage with Matrimony makes people think that “same-sex marriage” threatens Catholicism’s sacramental teachings.

So far, most bishops--especially U.S. bishops--have claimed to be defending “marriage” without making any distinction between civil marriage and Matrimony. In short, they have pretended there is only one kind of “marriage.” But of course the reality is that there are two kinds of “marriage” which differ in many significant ways.

First, they are different legally. Civil marriage is a legal contract, a strictly civil procedure governed by state law and the requirements of the U.S. constitution. As such, it is a civil right that the government may not deny any citizen without compelling legal justification. It must be available to all, without prejudice.

Matrimony, by contrast, is a sacred covenant, a sacramental bond governed by the universal canon law of the Church. It is not a right anyone may claim; rather, the Church reserves its right to determine both who is eligible for Matrimony and whether they meet the necessary preconditions. It is available, for example, only to Catholics and their partners.

Weddings at St. Peter's--September 14, 2014

Second, civil marriage and Matrimony are quite different institutions. Marriages existed everywhere through all history, in all cultures; it shows wide variations in who can get married, what it means, and how it is practiced. So civil marriage is a much broader institution than Matrimony. That sacrament appeared only since the first century, was found only where Christians lived, and has relatively fixed rules about who can marry, how they marry, and why they marry.

But civil marriage is also a much shallower institution. It is a simple contractual agreement which may be performed by a justice of the peace without any particular ceremony or ritual. Matrimony is a sacred covenant performed by the couple themselves (not a justice or a priest), and requires the sacramental rite of Christian Matrimony (as well as several other requirements) to be valid.

Third, these two institutions have quite different purposes and expectations. The church has developed a clear teaching that Matrimony has two purposes: procreation and the unified life of the couple. Thus couples must be willing to have children (and raise them Catholic). Any intention to remain childless nullifies the sacrament. So does any intention to preserve divorce as an option. Moreover, the sacrament is not consummated until and unless the couple has (unprotected) sexual intercourse. (Couples intending to remain celibate require a dispensation.)

Civil marriage, by contrast, has no such requirements. It is valid whether or not people intend to children or even intend to have sex. The private life of civilly married couples is not relevant to the civil contract, whose purpose is rather to access a long list of legal and social benefits and privileges (as many as 37 in some states) that only married couples have. Once a couple completes the civil contract, they are eligible for those benefits and privileges, regardless of their intentions about sexual intimacy or children or family life. People often think that civil marriage aims at promoting family life, but while that may be a societal benefit of civil marriage, it is not a legal requirement. So civil marriage confers many legal benefits but does not require any family intentions. Matrimony does require both sex and the intention to have children--but it confers no legal benefits or privileges.

In many countries, these differences are made obvious by having two different ceremonies, but they are masked in the U.S., where the priest performs the civil marriage (acting as an invisible agent of the state!) During the same ceremony when the couple performs the sacrament of Matrimony.

Why do all these differences matter? Because they totally alter the debate about same-sex marriage. If marriage and Matrimony were the same thing, then the campaign for same sex marriage would directly challenge a Catholic sacrament. If marriage and Matrimony are the same, then “redefining” marriage equates to “redefining” Matrimony.

But if these are two separate institutions, one can redefine one without redefining the other. Marriage can change while Matrimony stays the same. This of course, has happened before, when some states prohibited mixed-race couples from marrying even when the Church accepted them for Matrimony. Eventually these bans changed, but Matrimony stayed the same.

Thus same-sex marriage only threatens Catholic life directly if we insist on pretending that there is only one “institution” of marriage. For more than 10 years I have been baffled watching the U.S. bishops maintain this pretense, and I’m relieved to see that some of them have finally realized that this does more harm than good.

The best way to protect the sacrament of Matrimony is, on the contrary, to insist on the truth: Matrimony is not the same as civil marriage. Thus the sacrament of Matrimony will remain the same no matter what happens to civil marriage. Any changes in the sacrament would be decided in proper church channels, not by any court or government body.

When the Synod on the Family returns in 2015, we can hope that its work will advance in several ways.

First, we can hope Pope Francis’ leadership has gathered even more followers (especially among bishops). Second, we can hope that the optimism of Vatican II is rekindled once and for all. Three, we can hope that people will treat the Synod documents respectfully but also realistically, so their conservative packaging does not blind us to their reformist core. And fourth, we can hope that discussions about changes in civil marriage will not be confused with discussions about the sacrament of Matrimony.

Tuesday, July 2, 2013

#395: The Burden of Proof--Part 2

How the new burden of proof challenges the Catholic Church to honor its own teachings.

Now that the Supreme Court has entered the same-sex marriage debate, we have reached a tipping point where voter opinion matters less than the constitutional question of how to justify discrimination that denies gays a civil right.

Now, suddenly, the burden of proof is on those defending the traditional definition of civil marriage. Now, to make their case, they must prove Bishop Vigneron’s assertion that re-defining civil marriage will “hurt us all.”

Having the burden of proof means that mere assertions will no longer work. They will have to demonstrate concrete harmful consequences.

This is exactly the burden of proof that courts have been demanding for 10 years. And it is the burden of proof that defenders of “one man and one woman” have been failing to meet in case after case. So in 2003 the Massachusetts Supreme Judicial Court addressed the Department of Public Health’s case against gay marriage and concluded:

The department has had more than ample opportunity to articulate a constitutionally adequate justification for limiting civil marriage to opposite-sex unions. It has failed to do so…It has failed to identify any relevant characteristic that would justify shutting the door to civil marriage to a person who wishes to marry someone of the same sex….The absence of any reasonable relationship between, on the one hand, an absolute disqualification of same-sex couples who wish to enter into civil marriage and, on the other, protection of public health, safety, or general welfare, suggests that the marriage restriction is rooted in persistent prejudices against persons...

In this week’s DOMA case, the Supreme Court first noted that DOMA (Defense of Marriage Act) denied gay people their rights by discriminating against them:

The Act’s demonstrated purpose is to ensure that if any state decides to recognize same sex marriages, those unions will be treated as second-class marriages for purposes of Federal law. This raises a most serious question under the Constitution’s Fifth Amendment…. DOMA writes inequality into the entire United States code.

It then noted the clear and concrete harm from such discrimination: cutting off gay couples from the benefits contained in more than 1000 Federal laws pertaining to “social security, housing, taxes, up to criminal sanctions, copyright, and veterans’ benefits,” as well as health care, bankruptcy, and even children’s benefits.

Next the court reiterated that denying such rights is a major constitutional violation:

DOMA is unconstitutional as the deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

Finally it concludes that no defender of DOMA had proved any justification for such a breach of rights:

DOMA singles out a class of persons…The Federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure.

Similarly, in the ruling about California’s Proposition 8, the Court failed to find justification for that law’s ban on gay marriage. In fact, the absence of such proof led the Court to conclude that those defending the ban had no business in court at all--that is, no legal “standing”:

It is not enough that the party invoking the power of the court had a keen interest in the issue. That party must also have “standing,” which requires, among other things, that it had suffered a concrete and particularized to injury….We find the petitioners do not have standing.

Once again, the point is that discrimination requires some extraordinary justification:

The equal protection clause requires the state to have a legitimate reason for withdrawing a right or benefit from one group but not others…This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to a challenge to conduct, and is likely to be redressed by a favorable judicial decision.

And, the Court concluded, the petitioner never met this burden of proof:

The only individuals who sought to appeal that order were petitioners, who had intervened in the district court. But the district court had not ordered them to or refrained them from doing anything…. Here… The petitioners have no “direct stake” in the outcome of their appeal.

All this demand for proof of “concrete and particularized injury” could well be too high a burden of proof for Catholic officials to meet. Perhaps it is time that they remind themselves of two things: (1) The difference between civil marriage and the Sacrament of Matrimony, and (2) Catholic teaching on homosexuality. Until now, the bishops’ strategy has ignored both.

Catholic teaching says homosexuals must be treated with the same respect and dignity as anyone else. It condemns any “unjust” discrimination against gay people. If we apply this teaching to the question of civil marriage after 10 years of debate, two things are clear.

First, it is now well established in American law that access to civil marriage is a civil right, which means laws banning gay couples from civil marriage deny gays their rights and are a form of discrimination.

Second, to continue supporting such bans the Catholic Church would need to prove that such discrimination is not “unjust,” since the Church itself condemns that. It would have to argue that such discrimination is justified because of the harms caused by allowing same-sex civil marriage. And to do that, it would need to come up with much stronger proof than the courts have seen so far. Is that possible?

Clearly the burden of proving such a case is heavy indeed. It seems to me that church officials have now three choices:

(1) They can cling to the arguments they had been using for 10 years: pretending that civil marriage is the same as the Sacrament of Matrimony, (even though the first is administered by the priest acting as an agent of the state, and the second is administered by the couple acting as ministers of the Church), and pretending that any change will “hurt us all.” This option guarantees failure.

(2) Or, they can marshall better evidence showing that redefining civil marriage to allow gay marriage creates concrete harm, and accept the burden of proving that to the American public and the courts. Legally, this is the only way to stop gay marriage, now that they courts have determined that this is not a matter of majority will but a matter of civil rights. But proving such harm is a tall order, especially since 10 years of gay marriage have convinced growing millions of Americans that no harm has resulted.

(3) Or, finally, they can acknowledge that civil marriage has taken a historical fork in the road that diverges from the Sacrament of Matrimony, creating two very different institutions—one a civil right governed by the U.S. Constitution, the other a sacrament governed by Catholic tradition.

They can get priests out of the civil marriage business (one wonders: why are they in it at all?).

They can admit that banning gay civil marriage equals discrimination, and they can also admit that the burden of proof to justify such discrimination has become an impossible task.

Thus they can conclude that allowing gays access to civil marriage is an act of justice that treats homosexuals with all the respect and dignity that Catholic teaching promises them.

Then the bishops can focus on strengthening the Sacrament of Matrimony, a task they seem to have forgotten.

Sunday, June 30, 2013

#394: The Burden of Proof--Part 1

The Supreme Court has shifted the burden of proof in the debate over same-sex marriage.

When I began writing CrossCurrents in 2003, America’s debate over same-sex marriage was just heating up. Almost immediately, the American Catholic hierarchy made protection of the status quo on marriage a top priority. They have spent 10 years losing ground, and this week’s Supreme Court rulings confirm what has been clear for some time: the burden of proof is now on the US Bishops and anyone else trying to resist this change.

My doubts about the bishops’ strategy are not new. In my early CrossCurrents pieces on this issue, I advised that the bishops back civil unions for gays, as Pope Francis did in Argentina. After the Massachusetts Supreme Judicial Court overturned a ban on civil marriage licenses for same-sex couples in 2003, I observed that it was time for the U.S. Catholic Church to get out of the civil marriage business (in which priests act as agents of the state) while the getting was good, in order to focus on the Sacrament of Matrimony. I wrote:

The bishops could have drawn a sharp line between “civil marriage” and the “Sacrament of Matrimony”. Then they could have defended the unique meaning of Christian marriage against evolving, secular versions of civil marriage. Instead, the bishops chose to meet the court on its own turf, arguing that the good of society depends on denying same-sex couples, and lobbying against any broadening of civil marriage.

Thus the bishops dug in their heels by talking about “marriage” as though civil marriage and sacramental Matrimony were the same institution, while launching scary warnings about the woes to follow us if gays were to marry one another.

Ten years later, the rising tide has eroded the bishops’ stand, yet they cling to the same losing strategy. Immediately after the Supreme Court killed the Defense of Marriage Act (DOMA) this week and reinstated a California court’s ruling in favor of gay marriage, Catholic bishops quickly sprung into reaction. Predictably, they offered only more of the same losing strategy.

Archbishop Alan Vigneron of Detroit said:

Catholics and millions of our fellow citizens will continue to make the case…that marriage cannot be redefined, and that attempts to do so hurt us all.

And Archbishop Salvatore Cordileone of San Francisco hammered away on the theme of the “truth about marriage”:

The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so. The preservation of liberty and justice requires that all laws, federal and state, respect the truth, including the truth about marriage...The common good of all, especially our children, depends upon a society that strives to uphold the truth of marriage. Now is the time to redouble our efforts in witness to this truth.

The Bishops’ problem is very simple: by confusing the two institutions of matrimony and civil marriage, they’ve replaced the facts with wishful thinking. They want to make their case on two grounds: (1) there is one unique, non-negotiable truth about “marriage,” and (2) changing our definition of marriage will “hurt us all.” But both these arguments have become less and less credible over time.

Actually, the “truth about marriage” argument was never very convincing. It only worked as long as people pretended that “marriage” referred to one thing rather than two different institutions, as I wrote earlier:

Many Catholics can’t tell civil and sacramental marriage apart. They may not realize that in fact civil marriage is a great deal older than sacramental marriage: it existed in archaic cultures, in Egyptian and the Israelite cultures, in Greek and Roman cultures, all before St. Paul ever taught that marriage could be understood as a sign of Christ’s bond with his church. Civil marriage took various forms, with various rules (Israelite men were sometimes required to marry their brother’s widow; Roman men were permitted extra-marital sex with slave-women; Greek men were permitted extra-marital sex with boys). Such rules evolve even within a culture, of course: not long ago most states forbade marriage by mixed-race couples.

But while the Bishops failed to acknowledge this truth, Massachusetts Chief Justice Margaret Marshall stated it plainly in her landmark Goodrich opinion legalizing same-sex marriage:

We begin by considering the nature of civil marriage itself. Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution…No religious ceremony has ever been required to validate a Massachusetts marriage.

The truth is that “civil marriage” is an invention of the government, and different governments have defined it differently for centuries. Moreover, this re-defining has included the evolving recognition that civil marriage, unlike the Sacrament of Matrimony, is a civil right that people make claim access to as a matter of justice:

The benefits accessible only by way of a marriage license are enormous, touching nearly every aspect of life and death. The department states that "hundreds of statutes" are related to marriage and to marital benefits...It is undoubtedly for these concrete reasons, as well as for its intimately personal significance, that civil marriage has long been termed a "civil right."

Without the right to marry…one is excluded from the full range of human experience and denied full protection of the laws…Because civil marriage is central to the lives of individuals and the welfare of the community, our laws assiduously protect the individual's right to marry against undue government incursion. Laws may not "interfere directly and substantially with the right to marry…"There can be no prohibition of marriage except for an important social objective and reasonable means."

There are two consequences of this fact. First, civil marriage is now being drawn into the general history of civil rights. Second, this history now challenges Catholic teaching to practice what it preaches about the just treatment of homosexuals.

First, on general history, Marshall wrote:

The history of constitutional law "is the story of the extension of constitutional rights and protections to people once ignored or excluded."…This statement is as true in the area of civil marriage as in any other area of civil rights.

In this week’s DOMA case, the Supreme Court saw this at work as well in New York State:

The limitation of lawful marriage to heterosexual couples, which for centuries have been deemed both necessary and fundamental, came to be seen in New York and certain other states as an unjust exclusion…New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice they had not earlier known or understood.

This movement linking civil marriage to all other civil rights explains the rising tide of court decisions favoring a new definition of marriage. For if keeping the “one man and one woman” definition means denying gay people in a civil right, the question arises: how can that be justified? It becomes a matter of justice.

This explains why the movement to accept same-sex marriage has been so rapid: from one state in 2003 to 13 and counting in 2013. Now 40% of gay Americans already have access to this civil right, and the rest are demanding to know why they should be denied their rights.

This has dramatically shifted the burden of proof away from those proposing change; they now have both the rhetoric and the reality of civil rights on their side.

NEXT: How the new burden of proof challenges the Church to honor its own teachings.

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