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.
© Bernard F. Swain PhD 2013
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don't hold your breath.
ReplyDeleteWhen dealing with Catholic officialdom, this is always good advice. FESTINA LENTE !
ReplyDeleteThank you for sharing your perspective.
ReplyDeleteThere is one aspect of your essays that I find unclear. You refer to "strategy", but I don't know what you consider to be the proper objective of any "strategy."
Proponents of same-sex marriage are concerned not only about the various substantive legal benefits of marriage, but also about the social acceptance of same-sex marriage and of homosexual acts. Thus, I don't think that Church can avoid continuing to offend proponents of same-sex marriage without changing clear doctrine.
California Proposition 8 "stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of `marriage' … while leaving in place all of their other rights and responsibilities as partners --- rights and responsibilities that are identical to those of married spouses…" Yet proponents of same-sex marriage strongly condemned Proposition 8.
The Catechism of the Catholic Church includes:
"Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that `homosexual acts are intrinsically disordered.' They are contrary to the natural law. They close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved."
Conceptually, perhaps our laws could be changed to replace marriage with civil unions and to open civil unions not only to same-sex couples, but also to others who traditionally have not been allowed to marry. In this way, the laws would not be discriminate against homosexual persons and would no longer imply sexual activity.
For example, Massachusetts law does not permit a man to marry his mother, grandmother, daughter, granddaughter, sister, stepmother, grandfather’s wife, grandson’s wife, wife’s mother, wife’s grandmother, wife’s daughter, wife’s granddaughter, brother’s daughter, sister’s daughter, father’s sister or mother’s sister. These prohibitions make sense if marriage implies sexual activity, but don't make sense if marriage merely implies love, exclusive commitment, and various legal benefits.
However, I'm certain that this conceptual change would not appeal to proponents of same-sex marriage, because it would not convey approval of homosexual acts.
Perhaps the Church could credibly endorse "civil unions" while maintaining clear doctrine, but I don't think the Church could credibly endorse "civil marriage" and maintain doctrine.
Endorsing "civil marriage" would be inconsistent with long-established use of the word "marriage" within the Church. The Catechism itself uses the word "marriage" to refer the relationship between spouses established by the Sacrament of Matrimony and refers to the Sacrament of Matrimony as occurring with "The Celebration of Marriage".
Endorsing "civil marriage" while continuing to deny the Sacrament of Matrimony to same-sex couples would be inconsistent, since endorsing "civil marriage" would convey approval of homosexual acts and other than disapproval of homosexual acts, I am unaware of any rationale for denying the Sacrament of Matrimony to same-sex couples.
One legal quibble: In the Court's opinion regarding Proposition 8, the court did not rule on the constitutionality of Proposition 8. Instead it vacated the judgment of the Ninth Circuit and remanded with instructions to dismiss the appeal for lack of jurisdiction. Had the State of California defended Proposition 8, the court would have had authority to decide the case on the merits. The Court similarly dismissed a challenge to the Foreign Intelligence Surveillance Act.
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ReplyDeleteMy perspective is not about the proponents' strategy or motives. What they want and why is no longer relevant. The burden of proof is no longer theirs. My point is that the courts now recognize a civil right to "marriage" (in the California case, civil unions were already legal; the Courts were focused on the designation "marriage")and they have given notice that this right cannot be denied without demonstrating concrete harm. This shifts the burden of proof--and the burden of coming up with a winning strategy
ReplyDeleteThus, I referred only to the strategy of whose objective is to defend the "one man and one woman" definition of civil marriage. My argument is that the train has left the station: civil union, by the Supreme Court's own language, does not solve the constitutional problem, and neither does a focus on homosexual activity (since in many states, civil marriage is valid without sexual consummation--unlike the Sacrament of Matrimony). The Court's focus is on the right to and benefits of the married relationship, not on any sexual activity.
Anyone trying to stop this re-definition of civil marriage will have to come up with proof of some real concrete harm that the courts will buy. Thus for both the courts and the Church, the question is: can this discrimination be justified by proof of harm?
If not, then both courts and Church should opposed such discrimination--the courts on constitutional grounds, the Church by its own teaching.
You argue that the Church should support same-sex "civil marriage" unless opponents of same-sex "civil marriage" prove concrete harm. You imply that there is and would be no concrete harm. Thus, the Church should support same-sex "civil marriage."
DeleteShould the Church also change doctrine and offer the Sacrament of Matrimony and Celebration of Marriage to same-sex couples? If there is no concrete harm in offering the Sacrament to same-sex couples, then is there any reasonable justification for withholding the Sacrament from same-sex couples?
One could argue that some acts may by acts of grave depravity even if they don't result in concrete harm to others, yet government should not "legislate morality" of acts that do not result in concrete harm. This may seem a nice way to avoid alienating people that disagree with some of the Church's doctrine, but I don't think it would work well in practice, especially in this case since proponents of same-sex marriage are seeking not only substantive legal benefits, but also "approval" (or at least absence of disapproval) of homosexual activity within same-sex marriage.
How should the Church respond if and when there begin to be public demonstrations outside our churches on Sunday morning protesting the Church's refusal to offer the Sacrament of Matrimony to same-sex couples? "We strongly oppose any government disapproval of homosexual or bisexual activity as a denial of fundamental civil rights, but within the Church, we don't see any problem. Our Sacrament of Matrimony really isn't that important, so others need not be concerned that by withholding the Sacrament we may be teaching our children to disrespect homosexual and bisexual people."
By longstanding and current Church teaching, no sacramental marriage is valid unless it is consummated by an act of sex that includes a procreative dimension "open to the transmission of life." By that standard, same-sex couples are biologically incapable of validating the Sacrament of Matrimony. None of this applies to civil marriage.
ReplyDeleteMoreover, the burden of "proving harm" applies to civil rights but not to sacraments. Church law spells out many specific and concrete reasons why people may be denied access to a sacrament (usually called "impediments.")
I know many fear that accepting gay civil marriage endangers the Sacrament of Matrimony. I disagree--but anyhow the courts would never recognize that as a justification for denying a civil right. Protecting the Church's teaching and practice from internal "harm"is not the government's job.
Catholic teaching says gays should not suffer unjust discrimination, and the courts are saying that is precisely what has happened. Will the Church honor its own teaching?--Or find a why to prove the courts wrong?
It seems to me that civil marriage does indeed relate to procreation and sexual activity. The clear evidence of this are the longstanding and current prohibitions against marriage of closely related people and also the until recently longstanding prohibitions against same-sex marriage. For example, the Massachusetts prohibition against a man marrying his father's sister or a woman marrying her mother's brother. The dictionary definition of incest: "sexual intercourse between persons so closely related that they are forbidden to marry". Civil marriage implies public approval of sexual activity between the married partners. Civil union might not imply such approval, but courts have rejected denial of marriage to same-sex couples even if civil unions are available.
ReplyDeleteI doubt that supporters of same-sex marriage will be satisfied by the explanation that the Sacrament is denied to same-sex couples on account of the procreative dimension. They may point out that the Church provides the Sacrament to opposite-sex couples that are incapable of procreation. They may point out that same-sex couples are often parents or become parents through in vitro fertilization, adoption, or through previous relationships. In fact, may same-sex couples seek marriage because they want to formalize their relationship with each other as they raise their children. They may ask why the Church makes big shows of supporting opposite-sex couples' marriages through the Celebration of Marriage and little shows of support by honoring their marriage anniversaries, but doesn't show at all similar support for same-sex couples' marriages. And if the Church were to begin openly supporting same-sex marriages during Holy Mass, but still deny the Sacrament, they may ask why "separate but equal."
As long as Church doctrine holds that "homosexual acts are intrinsically disordered", etc., I think any attempt to justify denial of the Sacrament on other grounds will seem disingenuous to many. Our children will go to school, their teachers will tell the stories of the struggles for civil rights, and then turn to whether discrimination and prejudice still exist in our society. And someone, perhaps the teacher, will note that there are still some institutions that discriminate against homosexuals and bisexuals...
We need not accept recent court decisions just because they are court decisions. If we disagree with court decisions, we can seek to elect officials that will appoint judges with different views (the DOMA decision was a 5-4 decision, not a 9-0 decision) and we can seek Constitutional amendment.
Your last paragraph is correct. But, just my personal opinion: the baby boomers' babies largely have no problem accepting gays, and consider their sex life a private matter.
ReplyDeleteTime is therefore running out for legislative defenses of "one man and one woman." Both courts and public opinion are moving fast. I believe nationwide same-sex civil marriage is inevitable, and soon.
That said, Catholic teaching is not so far off: it condemns discriminating against gays unjustly, even while disapproving of their private behavior. Same-sex civil marriage will require no change in that teaching.