#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.

  © Bernard F. Swain PhD 2013

#393: Lost and Found--Pope Francis Retrieves Vatican II

After nearly 35 years of Catholic officials obscuring the vision of Vatican Council II, the new pope may already be rescuing its legacy.

The recent homily in which Pope Francis proclaimed Christ has redeemed all humanity, even atheists, has triggered seemingly endless commentary in the media - - print, electronic, and online. (homily text & video at http://en.radiovaticana.va/news/2013/05/22/pope_at_mass:_culture_of_encounter_is_the_foundation_of_peace/en1-694445).

But most of it misses the point.  Amid the debates--over “Did the pope endorse universalism?” or “What is the difference between redemption and salvation?”--most observers (other than James Carroll) miss these facts: (1) Francis’ remark about atheists was neither new nor controversial; (2) his real shift was to leap back over the legacy of John-Paul II and Benedict XVI to invoke the extroverted optimism of Paul VI.  He thus retrieved Vatican II’s version of the Church’s mission - - a version that has been out of favor for 35 years.

Francis may be simple, but he is not simple-minded, so his startling break with his predecessors is couched in his soft proposal to build a “culture of encounter.”

Why does this matter?  Because an “encounter culture” is quite different from the “counter-culture”--and that difference could re-set the Church’s course for years to come.

If memory serves, I first heard the Church described as a “counter -culture” nearly 30 years ago, when Bernard Law took

Bernard Law

over the Archdiocese of Boston in 1984.  Six years after the election of John Paul II, he used the term to express his conviction that Catholicism should not conform or even adapt its traditions to the demands of modern culture.  Rather than blend Catholic faith with the surrounding secular culture, he wanted Catholics to hold fast to an alternative way of life that would “counter” prevailing mores and values.

Back then I found his terminology clever but troubling.  As a child of the 1960s, I already considered myself a proud member of the “counter-culture”--but to me that meant a wave of progressive movements ranging from rock music to civil rights to antiwar politics to the sexual revolution to the questioning of all authority, including church authority.  We were rebelling against much of post-World War II American culture: its conformity, its complacency, its superficiality, its materialism, its militarism, its racism, its spiritual impoverishment.

What Bernard Law called “culture-culture” meant something quite different.  It included scolding Boston College (as well as the students and parents gathered for commencement) for not being true to  its Catholic identity.  It included refusing to allow women to serve as Eucharistic ministers.  It included refusing to allow a Knights of Columbus fundraiser to serve alcohol.  It included forcing the Archdiocese’s charismatics to move their annual conference to the cathedral (despite its inadequate seating capacity) and then imposing his own agenda on the day.  Law was not into questioning authority.  For him, “counter-culture” meant imposing authority to make sure Catholics behaved the way he wanted them to.

I admit I resented this theft and reshaping of the term “counter-culture.” But I soon learned he was not alone. Increasingly in the 1980s and 1990s, US bishops, conservative commentators, and some theologians promoted the “counter cultural” mission of the Church on issues like abortion, sexual morality, “catholic identity,” priestly celibacy, sex education, and eventually same-sex marriage. 

They were so successful that the term “counter-culture” lost its original meaning for people like me, and came to be a code-word for a move to establish a certain understanding of Vatican Council II. This understanding saw the modern world embracing a “culture of death” and countered it with a “culture of life.” The opposition was as clear as black and white, and treated every church position as non-negotiable.

Vatican II

Within the Church itself, this movement was labeled “the reform of the reform.” It was driven by the belief that Catholicism after Vatican II had become too friendly, too accommodating to the modern world around it, and was in jeopardy of losing its own identity.  Supposedly this was the fault of those who exploited the “reforms” of Vatican II as an excuse to abandon traditional teachings and practices in favor of every new cultural trend.  Only by “reforming the reforms” could the Church achieve its “true mission” as a counter-culture.

That is why, in rejecting this view, Pope Francis is provoking such reactions.  In theory, no one is more “counter” to Christian faith than an atheist.  Yet Francis asserted that:

The Lord has redeemed all of us, all of us, with the blood of Christ: all of us, not just Catholics.  Everyone!...  Even the atheists.  Everyone!

This is what Francis means by a “culture of encounter”: that whoever does good, regardless of their beliefs, creates a common ground where we can meet one another:

If we, each doing our own part, if we do good to others, if we meet there, doing good, and we go slowly, gently, little by little, we will make that culture of encounter: we need that so much. We must meet one another doing good. ‘But I don’t believe, Father, I am an atheist!’ But do good: we will meet one another there.

Such talk rings loud echoes for me of the talk Pope Paul VI gave at the final session of Vatican II in 1965:

Secular humanism, revealing itself in its horrible anti-clerical

Pope Paul VI

reality has, in a certain sense, defied the council. The religion of the God who became man has met the religion (for such it is) of man who makes himself God. And what happened? Was there a clash, a battle, a condemnation? There could have been, but there was none. The old story of the Samaritan has been the model of the spirituality of the council. A feeling of boundless sympathy has permeated the whole of it…But we call upon those who term themselves modern humanists…to give the council credit at least for one quality and to recognize our own new type of humanism: we, too, in fact, we more than any others, honor mankind.

Paul is clearly talking about an encounter between the Church and secular culture that can produce a working partnership--and he knew full well that some Catholics would criticize the openness required for such an encounter:

The council…has been deeply committed to the study of the modern world. Never before perhaps, so much as on this occasion, has the Church felt the need to know, to draw near to, to understand, to penetrate, serve and evangelize the society in which she lives; and to get to grips with it, almost to run after it, in its rapid and continuous change. This attitude, a response to the distances and divisions we have witnessed over recent centuries…between the Church and secular society—this attitude has been strongly and unceasingly at work in the council; so much so that some have been inclined to suspect that an easy-going and excessive responsiveness to the outside world, to passing events, cultural fashions, temporary needs, an alien way of thinking...may have swayed persons and acts of the ecumenical synod, at the expense of the fidelity which is due to tradition…We do not believe that this shortcoming should be imputed to it, to its real and deep intentions, to its authentic manifestations.

Observers have mostly overlooked this key fact about Francis: he is the first post-Vatican II pope!  The last five popes were all participants of the Council between 1962 and 1965, but Francis was only a seminary student.  He heard about the Council like the rest of us, from various reports and the media and perhaps by word of mouth. Unlike Benedict, who by the Council’s end felt it was moving too far and getting out of his control, Francis received the Council’s work as a blessing.  He took Pope Paul’s openness as an inspired vision.  Indeed, in his homily he warned against negative attitudes that insist on a “counter-culture” instead of an “encounter.” As reported by Vatican Radio, he contrasts the “counter” of the apostles with the “encounter” of Jesus:

The disciples, Pope Francis explains, “were a little intolerant,” closed off by the idea of ​​possessing the truth, convinced that “those who do not have the truth, cannot do good.” “This was wrong...Jesus broadens the horizon.” Pope Francis said, “The root of this possibility of doing good – that we all have – is in creation.”

Francis is, in effect, depicting Jesus as a bridge-builder among people.  This fits perfectly with our belief that Jesus is the Christ that bridges the gap, not only between people, but also between the human family and the divine family we called Trinity.  And this also fits perfectly the role of the pope, whose titles include “Pontiff” (from pontifex, meaning bridge-builder).

Francis demonstrates reaching out to Encounter

Francis contrasts this open-minded bridgebuilding encounter with the close-minded attitude that leads to conflict: “This ‘closing off’ that imagines that those outside, everyone, cannot do good is a wall that leads to war.”

This reminds us again of Paul VI, who described the Church's role in the world this way addressing the United Nations in 1965:
We here celebrate the epilogue of a weary pilgrimage in search of a conversation with the entire world, ever since the command was given to us: Go and bring the good news to all peoples.

Paul VI Addressing the UN General Assembly

 I, for one, am delighted and encouraged to hear the new pope talk this way.  Such talk is important not because it is about atheists but because it is about Catholics.  Francis is saying we should not be a people content to “counter” those who differ with us.  We must, as a matter of our faith, have the courage to “encounter” them.  
This means we must engage in a true conversation--not simply sharing our faith-based message, but also listening to the message of modern, even secular culture with an openness to the possibility that its message also brings wisdom that can enhance and enrich us.

Not only that, but Francis is saying we must build an “encounter culture” that leads away from conflict to the peace that Christ promised:

“Doing good” is a principle that unites all humanity, beyond the diversity of ideologies and religions, and creates the “culture of encounter” that is the foundation of peace.

For me, there is hope yet that the real renewal of Vatican Council II has not been lost on this pope, a man who has the wisdom to see the dangers lurking in the modern world but also has the courage to reach out and encounter it.  This was the true message of Vatican II, which has been nearly lost amid all the “counter-culture” negativism of recent Catholic leadership. I’m beginning to think that Francis is just the man to rescue Vatican II for us--just in the nick of time.

  © Bernard F. Swain PhD 2013