CrossCurrents: homosexual

Showing posts with label homosexual. Show all posts

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.

Wednesday, May 29, 2013

#392: On OUR Honor—Or Just Lip Service?

When the Boy Scouts of America decided last Thursday that “no youth may be denied membership on the basis of sexual orientation or preference alone,” that might have seemed a story of interest only to those in the gay community or in scouting. Not so.

For American Catholics, this may be a landmark test case of whether the Catholic Church will really practice what it preaches about homosexuality.

Catholic teaching is quite clear (as the National Catholic Committee on Scouting noted): “[People] who experience a

homosexual inclination or a same sex attractions are to be treated with respect recognizing the dignity of all persons.” Of course, they are also expected to follow church teaching that sex outside marriage is morally wrong.

In principle, these teachings are unambiguous, but in practice they are proving difficult to reconcile. That’s because, in matters of public policy, if you give gay people rights, it’s disingenuous to think they will not use them. In other words, once you say people have the right to be gay, it’s not a realistic to think they will not act gay as well.

That’s why Catholic teaching has reserved a loophole, by saying that the Church opposes “all unjust discrimination” against gay people. The loophole is, of course, the word “unjust,” since it implies that there may be cases of “just” discrimination--that is, cases where excluding gays is justifiable.

The US Bishops have used this loophole to oppose same sex marriage, arguing that it is damaging to marriage and family life. But the criteria for justifying discrimination against gays remain somewhat vague, as the experience in Massachusetts suggests.

Same-sex marriage here was the act of the state’s Supreme Judicial Court, not its legislature. The court found that the ban on same sex marriage was unconstitutional on two grounds. First, it found that previous case law in the Commonwealth of Massachusetts had already established civil marriage as a civil right. Second, it declared that denying any civil right to gays could only be justified if significant and demonstrable social harm could be identified.

Chief Justice Margaret Marshall wrote that the Attorney General's office "has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples."

The court majority could find no such harm. Ten years later, no one else has proven them wrong--and growing numbers of Americans agree.

This creates pressure on church officials to define more clearly the criteria that would justify discrimination against gays. Given its own principles, the Church cannot just exclude gays wherever it wants to. In order to really practice what it preaches, it will need strong justifications for discrimination that are at least as clear as those in our civil laws, if not more so. Otherwise, the Church’s own teaching will demand that Catholics oppose such discrimination.

This pressure will be especially intense if the US Supreme Court follows Massachusetts this month in rejecting federal bans on same-sex marriage. What will the Bishops do then?

This is why the scouting case is such a clear litmus test. Here is one instance where the distinction between being a homosexual and practicing homosexual activity actually makes practical sense.

First, this is not a constitutional issue, since in the 2000 case Boy Scouts of America v. James Dale, the U.S. Supreme Court declared in a 5-4 ruling that the Boy Scouts of America was within its rights to set its own membership standards, (including the exclusion—or inclusion) of gay youths. So the scouts have the legal right to discriminate against gave members. The question is rather is such discrimination morally justified? In other words, does the Catholic loophole apply here?

Second, the scouts are, after all, for kids, and operate on the assumption that its members are not yet sexually active. So the Boy Scouts of America itself has made it clear that will it will allow members to be gay but not act gay:

[The resolution] reinforces that Scouting is a youth program, and any sexual conduct, whether heterosexual or homosexual, by youth of Scouting age is contrary to the virtues of Scouting.

Thus the BSA resolution seems to reflect almost perfectly the Church’s teaching, by including gay members while banning gay sex.

So how will the Church react? This is no small question, since 70% of all scout troops are church-based, and Catholic institutions are the third largest religious sponsors of scouts (Catholic-chartered units total 8,397 with 273,648 members.)

So far, the response of church officials has been a mixed bag. The National Catholic Committee on Scouting had previously supported the ban on gays (according to Fox News) but (according to ABC News) took no official position on the new policy that repeals the ban. The NCCS released a statement Thursday saying it hoped to maintain the strong relationship the Catholic Church has had with the Boy Scouts for more than 100 years. Now it says that, since the policy change will not go into effect until January 2014, it will have “adequate time to study its effects.”

Not every bishop or pastor is prepared to wait, however. Bishop Paul Loverde of the Diocese of Arlington (Virginia) issued a statement which read, in part:

I deeply regret that the leadership of the Boy Scouts of America, after years of principled and steadfast resolve, has now wavered in their commitment to the values that the scouting movement has traditionally embraced and taught.

…As Bishop, it has always been my firm hope that we might continue sponsorship of Boy Scout troops in a manner that is consistent with the Church’s teaching and mission.

Sadly, yesterday’s decision forces us to prayerfully reconsider whether a continued partnership with the BSA will be possible.

… As an organization founded on character and leadership, it is highly disappointing to see the Boy Scouts of America succumb to external pressures and political causes at the cost of its moral integrity.

One Northern Virginia pastor, in fact, had already made his decision before the BSA acted:

This new proposal does not change my previously announced decision: if it is adopted by BSA next month, St. Raymond’s association with BSA will end (effective in September). I continue to pray and hope that this does not happen. But if it does, I will give all the support I can to forming a new scouting group, independent of BSA, that will defend Christian values.

Meanwhile, the Archdiocese of Denver released this statement:

The Church agrees that no group should reduce a person to their sexual orientation or proclivity…However, the moral formation of youth must include a firm commitment to respecting and promoting an authentic vision of sexuality rooted in the Gospel itself.

The Archdiocese stated it will continue to allow parish-chartered Scouting organizations, but would be "steadfast in articulating a Christian understanding of human dignity and sexuality.”

And the Archdiocese of Washington took a similar, but even stronger, position:

[The Boy Scouts of America policy change] does not affect the teachings of the Catholic Church and the manner in which the Archdiocese of Washington conducts the Scouting programs under its purview.

Scouting programs seek to instill the importance of duty to God and to country, and groups chartered through the Catholic Church witness to the faith while continuing to provide an opportunity to involve youth in the life of the local parish.

The church, through its clergy and lay leaders, has the responsibility to teach the Gospel and encourage all people to live out the teachings of Christ -- regardless of their sexual preference.

This range of reactions is not a hopeful sign. If each Diocese establishes its own independent position or—worse—if individual pastors are left to decide they want to abandon the BSA for some gay-banning alternative, Catholic officials will be hard pressed to demonstrate that Church teaching is being honored. Many people will be convinced that our teaching on “the dignity of all persons” gets just lip service. More and more, it will appear that the loophole of “unjust discrimination” opens the door for hypocrisy.

In fact Catholic teaching as it stands may prove to be a ticking time bomb. It requires church officials, as well as rank and file Catholics, to distinguish which discrimination is “just” and which is “unjust.” That will always be a judgment call. And each time Bishops make a bad judgment, they will inflict more damage on their moral credibility.

Moreover, as Americans adapt to the open presence of gays in sports, schools, the workplace, family gatherings, and even churches, justifying discrimination will only become more difficult. In fact, I foresee the day when any attempt to “justify” discrimination against gays becomes an academic exercise with no practical effect. At that point, the Catholic “loophole” will be closed. That will make practicing what we preach less complicated, but it may also make it more difficult.

For now, the Scouts have given the bishops a golden opportunity to prove that we will honor our teaching, not just give it lip service.

WELCOME !