Wednesday, June 18, 2008

More on SSM and religious liberty

Writing at the Volokh Conspiracy, Dale Carpenter, a thoughtful and fair minded proponent of same sex marriage, comments on the "religious liberty" objection to SSM. That objection, most prominently pushed by Maggie Gallagher, was restated in a column on NRO earlier this week.

Carpenter, a lawprof at Minnesota, argues that many of the recent examples cited by SSM opponents as examples of SSM impinging upon religious liberty, involved the application of general antidiscrimination laws and some occurred in states where SSM marriage is not recognized. In Carpenter's view, the pressure on religious liberty (to which he is sympathetic) stems from the general movement toward nondiscrimination on the basis of sexual orientation. There is a great deal of merit in his argument.

Dan Markel, writing at Prawfsblawg (where yours truly will take a guest turn in December)picks up on Professor Carpenter's post and argues for a fairly broad (but not unlimited)principle of nondiscrimination anchored in Professor Markel's view that "in almost all cases, sexual orientation is about as morally irrelevant as the race of a person."

I think that Professor Markel's principle illustrates the weakness in Professor Carpenter's suggestion that SSM does not extend the principle of nondiscrimination in significant ways. Let's use the the case of Catholic Charities in Boston as an example. It was essentially run out of the adoption business because it would not place children with same sex couples. Professor Markel thinks that this was the right result while Professor Carpenter would have granted them an exemption.

But SSM marriage does affect the way in which we think about the application of the nondiscrimination principle to Catholic Charities. I may believe (in fact I do) that gay and lesbian persons ought not to be discriminated against in a variety of contexts.

But I may still view marriage as an institution that requires man and a woman because it is a cultural and legal response to the particulars of male-female sexual attraction, the fact that it makes children and the belief that, all things equal, it is preferable for children to be raised by their biological parents living together. In this view, what is relevant is not so much sexual orientation but gender. I may reasonably conclude that my opposition to SSM marriage is not so much discrimination on the basis of sexual orientation but a judgment that marriage requires the union of a man and a woman. That belief may well be rooted in religious belief (see, e.g., Roman Catholic teaching on the complementarity of the sexes)- although, in my case, I am powerfully committed to secular arguments.

SSM, if widely accepted, undercuts that argument because it denies the relevance of gender to marriage. It extends the principle of nondiscrimination and leads us to Professor Markel's view that sexual orientation is almost always irrelevant.

26 comments:

Anonymous said...

Are children better off temporary situations in foster homes or being adopted by same sex couples as has been done in California? The Archdiocese of SF is still in the adoption business and children are being placed in same sex households. The Archdiocese of SF (when it was under Cardinal Levada) complied with county and state laws regarding equal benefits for same sex couples. The Catholic church in SF worked this out without compromising the Church's teaching. It can be done....our former Archbishop Levada is now at the Vatican...when here in SF he worked with the gay community with tolerance and compassion yet did not compromise Churh teachings

Amy, Esq. said...

Anon 11:35's question regarding what is "better" misses the point. Whether it is "better" is not the issue here (and I'll withhold comment on it for that reason). Plus, it's pretty easy to slant the decision when you're picking the facts to compare.

What the SF archdiocese did is also not relevant. That was their choice and apparently comported with their beliefs.

What's at issue is whether a religious-based charitable organization can be forced to violate its beliefs by adopting children into households headed by same sex couples. That would be a fundamental violation of religious liberty that the SSM proponents simply ignore most of the time or, as in 11:35's analysis, argue around.

Anonymous said...

what happened in SF is relevant....Cardinal Levada is of course Prefect of the Congregation for the Doctrine of the Faith, again he worked adoption issues...I believe through an intermediary agency...Church teaching was kept intact...no ones religious liberty was violated. Children who were previously in foster care are being placed in same sex households

Anonymous said...

I grew up at time when it was acceptable to be utterly intolerant to gays....Intolerance towards gays is not ok now...it appears to me that "religious liberty" is being used as a cloak to hide intolerance

Anonymous said...

I'd prefer to be intolerant now but I'd be ostracized and possibly burned at the stake for the sake of political correctness

Super Id said...

The argument that same sex marriage should not be recognized because it may make impact people's relgious beliefs is a weak argrument at best. We cannot trample on the equal protection clause by asserting that it enforcing it may cause discomfort with people's religious beliefs.

The Speratation of Church and State must be employed to secure religious liberty. Religous liberty is weakned when the state begins to pander to a particular regligon's insterests at the expense of other's religious beleifs.

Moreover, The good profesor's "secular" argument (i.e. that its perferable for childern to be raised by biological parents" cripples the religions liberty argument. Afterall, if Childern are being placed with adoptive or foster parents they are not being raised by biological parents. Thus, what is "preferable" becomes irrelvant. The question is then, what is the next best solution. I would suggest that the best solution is a loving environment, regardless of gender or marraige.

I note that my Aunt, who is very Catholic straight and has never married has adopted three childern. Curiously, none of the groups that she worked with for the adoptions objected on the basis that childern should be raised by a married man and a women.

I'd say there is a ddouble standard.

Cheers,

Anonymous said...

imteresting comment...." I'd prefer to be intolerant now but I'd be ostracized and possibly burned at the stake for the sake of political correctness".....how far does your intolerance spread, does it include people of other races, religions....the disabled....in the end we will be judged by how well we loved others not by how intolerant we were to others...

Anonymous said...

looking at the picture coming out of california i see pictures of middleaged same sex couples getting married and outside the courthouse people protesting outside the likes of that group from topeka kansas, (who also picket funerals of our soldiers killed in Iraq).....hmmmm whom is a threat to the fabric of american society? .......middleaged gay couples or religious nuts with hateful signs

AnotherTosaVoter said...

Rick, I see you're back on the topic. I'll be more respectful this time because I think you deserve it.

And with all due respect, it kind of seems like you're arguing from a place that real life has already passed by.

You base your argument on the idea that "marriage" is the best arrangement for healthy expression of heterosexual relations and the best situation for raising children.

With regard to hetero relations, how is your opinion relevant? The people interested in having "marriage" extended to them are not going to be involved in hetero relationships. You've said you don't think granting SSM will make people "go gay", so how would extending marriage to same-sex couples affect the heterosexual institution?

You replied to that question in another thread (but with all due respect I don't think you actually answered it) by saying something along the lines of changing it by definition makes it weaker. The problem with that argument, as I responded at the time, is that marriage has already changed significantly from near slavery for the wife to a business transaction to whatever it is we have today. You also never really backed up the argument that an evolving definition of marriage "weakens" it. As I've asked before, like global climate change, how do we know marriage is "perfect" just as it is currently?

Your reference to raising children is what reminds me most of the cliche that conservatives stand in front of history and yell "stop" (was that WF Buckley?), but it seems like you're yelling stop after history has passed you by.

With regard to parental raising of biological children, I don't see how granting SSM threatens biological children born of hetero marriages. The state is already taking children away from hetero married couples when it's appropriate even where SSM is not legal. In very few of these cases could you reasonably argue that the child was better off with the hetero married parents than with a foster or adoptive family regardless of whether it's hetero or same-sex.

But of course not all children are born into hetero marriages. And again, it seems granting or not granting SSM is irrelevant to this issue. Even where SSM is not legal, single women are having children and same-sex couples are either adopting or "having" children through surrogacy, or artificial insemination, or IVF.

In other words, a child may very well be "better off" in a hetero married situation, but kids are going to be raised in non-traditional families at a rate that will only appear to increase whether SSM is granted or not. It seems you cannot wage a cultural battle for children to be born into the "best" circumstances solely on the issue of gay marriage; indeed it would also seem to call for draconian and unenforceable legal restrictions on single parenting, IVF and surrogacy?

I heard a caller on NPR this afternoon nail the simple fact of this issue: it's based on age. People of your generation generally cannot imagine "marriage" as anything but man-woman because that was the cultural norm you've known; but people of my generation and especially younger generations simply do not care to any great degree whether marriage is heterosexual or same-sex. I think your efforts, reasonable as they may be, are a speed bump in history.

Anonymous said...

Here is an excerpt from SF Chronicle 6-15-2008 that I think addresses some issues that anothertosavoter raises

"California Supreme Court Chief Justice George wouldn't discuss the court's deliberations that led to the ruling overturning the state law that defined marriage as being between a man and a woman, or the initiative on the Nov. 4 ballot that would write a ban on gay and lesbian marriages into the state Constitution. If the measure passes, George's court will almost certainly be called upon to decide whether marriages already performed remain valid, and possibly whether the initiative itself is constitutional.
But the chief justice disputed one of the main arguments by critics of the ruling, including the dissenting justices: that the court had overstepped its bounds and thwarted the will of the people who reaffirmed the ban on same-sex marriages in a 2000 initiative.
"That's a false dichotomy," George said. "The ultimate will of the people is the Constitution." By adopting the state and federal constitutions, he said, "the people have put limits on their ability to enact laws."
The voters' ability to override the court by rewriting the state Constitution "does weaken the argument that the popular will is being frustrated," George said.
George, 68, was named a Municipal Court judge in Los Angeles by Republican Gov. Ronald Reagan in 1972 and has won promotions from three other governors, Republican George Deukmejian, Democrat Jerry Brown and Republican Pete Wilson, who appointed him to the Supreme Court in 1991.
A moderate Republican, he has written opinions in several civil rights cases that could easily have come from the liberal majority that held sway on California's high court for more than four decades, until Chief Justice Rose Bird and two colleagues were removed in a 1986 election that focused on their votes to overturn death sentences. Among the most notable was a 1997 ruling overturning a law requiring parental consent for minors' abortions.
George's same-sex ruling relied heavily on the court's 1948 decision on interracial marriage, written by a renowned liberal, Justice Roger Traynor. No other state's court had ever recognized a constitutional right for interracial couples to marry, and the U.S. Supreme Court did not do so until 1967.
A lesson from that case, George said in the interview, was that laws denying "certain basic rights could not be justified just because of history and tradition."
He recalled a trip with his parents to the still-segregated South as a teenager, when he was shocked to see whites-only signs on drinking fountains and restroom doors.
"It sensitized me to the fact there are minorities of all sorts of types who can be victimized by the majority," George said. Protecting vulnerable minorities, he said, is "one of the purposes of the courts and of our Constitution."
Logic behind ruling

That experience influenced his approach to a critical issue in last month's case: whether homosexuality belongs in the same legal category as race, gender and religion. California courts reserve that classification for groups that have been historically persecuted for reasons unrelated to their character or abilities, and almost invariably overturn laws that discriminate against those groups.
Once George and three colleagues agreed that bias based on sexual orientation deserved the same treatment - a conclusion no other state's high court had ever reached - their decision to strike down the marriage law was virtually inevitable, he said.
Broader decision

The ruling was much broader than the 2003 decision by Massachusetts' high court, the only other state court to legalize same-sex marriage. That court found no rational basis for continuing to deny marital status to gay and lesbian couples, but did not address the overall issue of discriminatory laws.
The California court's treatment of anti-gay bias as akin to race or sex discrimination "will have, I think, vast consequences, not only in California but in other states," whose courts often follow California's lead, George said. That part of the ruling is a precedent that will survive even if voters ban same-sex marriage in November.
Was it the right time for the court to take the lead on the issue? It was the same question that confronted the state's high court in 1948, and it is certain to be raised between now and Nov. 4.
"We don't go out and look for these cases," George said. "We have to rule on what comes through the door."
Still, the court could have sidestepped the case after a state appeals court upheld the marriage law in 2006. Instead, the justices, despite their disagreement on the constitutional issue, voted unanimously to grant review.
Justices saw it coming

"It was the importance of the issue," George said. From the first events in 2004 - San Francisco Mayor Gavin Newsom's order authorizing same-sex marriages, followed by nearly 4,000 weddings at City Hall, then by the state Supreme Court's decision to nullify those marriages and refer the legal dispute to lower courts - "we probably all felt that this was a case that was going to end up in our laps."
George said he wrote the marriage opinion himself, rather than assigning it to a colleague, for the same reason he wrote the earlier abortion case - that it's part of the chief justice's job to take the heat.
As leader of the court, "I should have the broad shoulders to take this one on," George said. His job, as he has frequently observed, "wouldn't be worth having or keeping if you had to look over your shoulder."
That could make him a target the next time he stands for election to the court in 2010. Some backers of the November initiative are already talking about campaigning to unseat him when his 12-year term expires.
George has long been eligible to retire with full benefits and find more-lucrative work as a private arbitrator. But he made it clear he's not going anywhere, so long as the voters will have him.
"There are no greener pastures," he said. "As long as I feel I have the physical and mental stamina to do the job, there's nothing I'd rather be doing."
Ronald George

Position: Chief justice, California Supreme Court
Age: 68
Education: Princeton University, Stanford University Law School
Experience
Deputy attorney general, state of California, 1965-72
Los Angeles Municipal Court judge, 1972-78
Los Angeles Superior Court judge, 1978-87
Second District Court of Appeal justice, 1987-91
California Supreme Court justice, 1991-96. Chief justice, 1996-present
Family: Married, three children"

Anonymous said...

The California State Constitution begins thus:

CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS


SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.



If you by chance come to the City Hall in San Francisco you will this in action.....with SSM

Anonymous said...

Anothertosavoter,

Age is not the factor that defines the opposing sides of the same sex marriage debate, at least not in the direction that you suggest (I'm 24 and opposed as well, though for reasons different than Rick's). And I can assure you that there are plenty of young people who, while able to concede the possibility of two individuals of the same sex being married, wish not to see the practice in action.

Furthermore, let's just assume you're right for a second, and our younger generation is more indifferent to the composition of a married family than prior generations. Why would that be? What role might the "sexually enlightened" generation that preceded us play in that indifference? And how might the "sexually liberated" faculties of our colleges and universities have impacted that indifference?

Look carefully and I think you'll realize that the promotion of same sex marriage is less a function of some abstract notions of "progress" and more a function the agenda of some folks who can't let go of the past.

Anonymous said...

you are lucky at 24....when I was 24 gay people we're considered mentally ill and unfit morally.....even in the 70s the milwaukee PD raided gay bars, peoples names were published from these so call raids and they lost jobs and housing....MPD used to go to areas near gay bars and would routinely document license plates...if you walked against a dont walk sign at 0200 even though there was no traffic you could be arrested in after bar closing sweeps....abstractions are nice but remove usfrom the harsh concrete times...Do you know what is like to be treated like this? Wisconsin was and has become the a gay unfriendly state....forward onwards backwards....

Anonymous said...

the united states has a history of white males imposing their view of the world on others....usually it is the courts who have been the ones to remedy this

Anonymous said...

Anon 2:14 - that's an UNDERSTATEMENT!

Anonymous said...

La dee da da,

Homosexuals are not the same as hetrosexuals, the equality argument fails.

Anonymous said...

i thought all men(women) (people) were created equal.....o forgot im in wisconsin (o toto were not in kansas)

AnotherTosaVoter said...

Anon 1:17 said,

"Age is not the factor that defines the opposing sides of the same sex marriage debate, at least not in the direction that you suggest"

Yes, it is. I guarantee you are in the minority of your age group while Rick is in the majority of his.

"Furthermore, let's just assume you're right for a second, and our younger generation is more indifferent to the composition of a married family than prior generations. Why would that be?"

Does it matter?

I don't mean to be glib but the reasons are irrelevant. The fact is that the culture is coming to this conclusion and it's doing it consentually. Unless you want to argue people are gullible idiots.

"What role might the "sexually enlightened" generation that preceded us play in that indifference?"

Probably a big one. So what?

"And how might the "sexually liberated" faculties of our colleges and universities have impacted that indifference?"

Probably not to a huge degree, but again so what?

"Look carefully and I think you'll realize that the promotion of same sex marriage is less a function of some abstract notions of "progress" and more a function the agenda of some folks who can't let go of the past."

Um, as a married heterosexual who supports it, I can tell you it doesn't have much to do with the past.

Isn't an argument based on tradition, such as yours, by definition concerned with the past?

AnotherTosaVoter said...

Anon 1:16,

The Justice's opinion is based on the logic of the role of the courts as described in the Federalist Papers.

Almost verbatim, in fact.

Anonymous said...

"The fact is that the culture is coming to this conclusion and it's doing it consentually."

So consentually [sic], in fact, that the members of the California Supreme Court feel inclined to strike down the law which was passed by a 61% majority of California voters in 2000.

That's a hell of a consensus.

And the words of Justice Carol Corrigan in dissent confirm the state of this so-called societal consensus:

"But I, and this court, must acknowledge that a majority of Californians hold a different view and have explicitly said so by their vote. This court can overrule a vote of the people only if the Constitution compels us to do so. Here, the Constitution does not."

Anothertosavoter relies on our generation's alleged indifference to the composition of a married family for hope that there will eventually be a consensus in favor of same sex marriage, while at the same time suggesting that we've already reached it.

Anon 1:56, while I have absolutely no knowledge of the things that you describe, I'm glad that they apparently do not happen anymore. We win by the strength of our ideas, not by brute force and intimidation.

Anonymous said...

"Anon 1:56, while I have absolutely no knowledge of the things that you describe, I'm glad that they apparently do not happen anymore. We win by the strength of our ideas, not by brute force and intimidation."

study the past and take time to understand it....brute force and intimidation comes from intolerance.....most of the same sex couples in California are middleaged,,. baby boomers....the people protesting outside the various counties in California carry signs with harsh and intolerant messages.....after 3 days SSM is no longer a story here in California...

Anonymous said...

at a time not too long ago if you were a homosexual in Wisconsin and it became known you could no longer pratice law, medicine, nursing or teach...are you taught about these things in your schooling?

again brute force and intimidation starts from intolerance

Dad29 said...

Levada, in fact, DID "compromise" on the SSA issue in SFO. The fact that he is a Cardinal is irrelevant, as is his current assignment.

But that's his problem.

And it IS irrelevant. Church teaching is clear on the issue.

We note the irony: when Church leadership abandons church teaching for the Left's benefit, it IS VERY RELEVANT.

When Church leadership contradicts the Left, they are "irrelevant" and likely 'ultra-conservative.'

Right-o!

Anonymous said...

Dr Daniel Maguire in the Theology department speaks on SSA:

http://www.maltagayrights.net/files/Maguire.pdf

Anonymous said...

A Catholic Defense of Same-Sex Marriage
– Professor Daniel C. Maguire∗
April 20, 2006
The Catholic Church is beginning to rediscover what it once knew; that not all persons are hetero-
sexual, that many people are homosexual and that this is just fine. In the past, the Church ac-
cepted homosexuality more openly and even had liturgies to celebrate same sex unions.1 There
was a recognition that different sexual orientations are clearly part of God’s plan for creation-
some people are heterosexual and some are homosexual-this is the way God made us and we have
no right to criticize God.
Wherever the human race is found we find persons of differing sexual orientations. (We find the
same thing in God’s animal kingdom.) Human history shows that some humans have same-sex
attractions and unions and others have opposite-sex attractions and unions. The desire to bond
lovingly and sexually with persons of the same sex or of the opposite sex, is a fact of life, a fact
of God’s creation, and we have no right to call it unholy. As the Acts of the Apostles says in the
Bible, we have no right to declare unclean anything that God has made (Acts of the Apostles
10:15). To do so, in fact, is a sin.
Obviously not all Catholics have heard this message. Prejudice against homosexual persons is
common. Theologians call this the sin of heterosexism, a sin like racism, anti-Semitism, and sex-
ism. These are sins that condemn people for being what they are, not for what these people do.
These sins of prejudice are cruel sins that condemn people no matter how good these people are.
If people are not white or are not male or are not heterosexual, they are condemned, even if they
are saints. This is what racism, sexism, and heterosexism do. If homosexual persons live out their
reality and enter into beautiful, same-sex relationships full of love and commitment and fidelity,
we condemn them. Even if their unions are more successful, more lasting, more exemplary than
some heterosexual unions, we still condemn them. Surely that is unjust.
Years ago, the Catholic theologian Father Andre Guindon wrote: “Christian communities should
begin to receive homosexuals in their midst as full-fledged brothers and sisters and as those to
whom God also offers his love.”2 Catholic theologian Mary Hunt asks: “What could possibly be
wrong with loving, mutual, safe, consensual, community-building sexual relationships between
committed male or female partners?”3
But, are same-sex unions really marriage?
All the religions of the world give marriage a very high place. Marriage can be defined as the
unique and special form of committed friendship between sexually attracted persons. This defini-
tion does not say that the persons have to be heterosexually attracted. Persons attracted to a per-
son of their same sex can still be married. Marriage is a supreme human good involving exclu-
sive, committed, enduring, generous, and faithful love, and this kind of love is not something that
only heterosexuals can achieve. (In fact, some heterosexuals are not very good at it. Theologian
Mary Hunt points out that “In fact, heterosexual marriages end in divorce as often as in death.”4)
Friendship and love and commitment are human virtues and gay and lesbian persons are human
and fully capable of a healthy human committed love in marriage. We have no moral right to de-
clare marriage off limits to persons whom God has made gay. We have no right to say that mar-
riage, with all of its advantages and beauty, is a reward for being heterosexual.
Dr. Hunt also points out how unfair it would be to say that heterosexual Catholics have seven sac-
raments but homosexual Catholics only have six if marriage is denied them. Who could imagine
God creating people who are gay and then denying them the right to express their sincere and
honest love in the holy sacrament of matrimony!
But what of the objections to same-sex unions?
St. Thomas Aquinas always said that it is important to know the objections to any teaching that
you accept. When you face those objections you can come to know your own position better.
OBJECTIONS
Objection #1 The Bible says all homosexual activity is evil and sinful.
First of all, this is true. There are objections to same-sex unions in the Bible. However, many
things in the Bible simply describe how people lived when the Bible was written. Not everything
that the Bible tells us is something we could or should do today. For example, the Bible (Leviti-
cus 25:44-46) tells us that we may buy and own slaves and “use them permanently” and will them
to our children when we die! In the past, people who did not know how to interpret the Bible used
these texts to justify slavery in Latin America and in North America. They did not know that
sometimes the Bible is telling you what people used to do, not what people should do today.
Sometimes the Bible gives you a lot of bad examples of how terrible people can be. The Bible
treated slavery as a fact of life and talks about “a man who sells his daughter into slav-
ery”(Exodus 21:7). Surely we would not want to do that today!
The Bible also forbids eating shell fish (Leviticus 11:9-10) but we do not feel we should obey that
today.
The Bible also says that wives should obey their husbands as if their husbands were God (Ephe-
sians 5:22-24) and that wives should be “subjects to their husbands in everything.” This made
women slaves to their husbands and for along time people justified male control of women by
using these Bible texts. The Church then learned that these texts described the way life was lived
at that time but did not prescribe that we should live that way. They found better ideals in the
same Bible and used them to correct these texts. Thus interpreters of the Bible went to Galatians
3:28 and there found the liberating ideal that “all persons [male and female]are one person in
Christ Jesus,” and that therefore no hostile divisions should be made between male and female,
with neither one dominating the other.
When we come to the biblical texts on homosexuality we see right away that we could never treat
them as rules for our day. The book of Leviticus says that anyone who has sex with someone of
the same sex “shall be put to death: their blood shall be on their own heads”(20:13). St. Paul in
the Epistle to the Romans condemns homosexual relationships and lists persons who do such
things among those who “deserve to die” (1:26-32).
The Catholic Church today condemns capital punishment and even conservative Catholics and
other Christians who condemn all homosexual relationships do not call for the death penalty for
gays and lesbians.
Obviously, there are many moral questions that are not answered in the Bible. Homosexuality is
one of them. What Catholic and other Christian and Jewish scholars do is to take the main princi-
ples of justice, compassion, respect and love for persons as God created (both heterosexuals and
homosexuals are created in God’s image) and apply these principles to today’s moral issues such
as homosexuality and same-sex marriage. That is why Catholic and other Christian and Jewish
theologians defend same sex marriages today. They say that denying all homosexual persons the
expression of their sexuality is unjust and sinful.
Do all Catholics and other Christians agree on same-sex marriage? No. Just as some Christians
see all war as immoral and become pacifists, some others say there can be a “just war.” Chris-
tians, including Catholics, have learned to live with these differences and to respect one another
and live together anyhow. Catholics are now beginning to practice the same tolerance regarding
homosexuality.
Objection #2: The Catholic hierarchy condemns all homosexual sex.
That is true. When Cardinal Ratzinger, now Pope Benedict XVI, was head of the Congregation
for the Doctrine of the Faith he issued a teaching that said: “Respect for homosexual persons can-
not lead in any way to approval of homosexual behavior or to legal recognition of homosexual
unions.”5 Undoubtedly that is still the position of the pope. The question is how Catholics should
evaluate the pope’s position.
The Church consists of more than the pope and the bishops. In Catholicism there are three
sources of truth, (or three “magisteria”): the hierarchy, the theologians, and the wisdom and expe-
rience of the laity (called in Latin sensus fidelium). In Catholic history, each of these sources of
truth has at times been right and each of them has at times been wrong. So, for example, for many
centuries the bishops, popes, and theologians taught that it was a mortal sin to take any interest on
a loan, even one half of one percent interest. After a while, the laity, through their own experience
with lending money, decided that a little interest was reasonable and fair to compensate the
lender. Too much interest was wrong but a little interest as payment for the use of your money
was reasonable and moral. In other words, the laity disagreed with the hierarchy and the theologi-
ans, and the laity was right. A hundred years after the laity made a decision on interest and acted
on it, some theologians said they agreed; a hundred years later, the Vatican also decided that the
laity was right. The Vatican even went on to open a bank and charge interest.
At other times in history, the hierarchy and theologians taught that slavery was moral and that
anti-Semitism was not a sin. Obviously they were wrong and they eventually were corrected.
Something like that is now going on regarding homosexuality. Many Catholic theologians agree
now with Protestant and Jewish theologians that same sex unions can be moral, healthy, and
holy.6 Many Catholic people are living in same sex unions and adopting children and still prac-
ticing their Catholic faith. Many priests realize this and welcome these couples to Communion at
Mass and even have private liturgical celebrations of their unions. Bishop Walter Sullivan of
Richmond, Virginia even wrote a welcoming introduction to a book of essays by various Catholic
theologians, some of whom defended the right of sacramental marriage for same sex couples.7
Obviously, then, Catholic teaching is in transition on this subject and Catholics are free to let their
consciences decide either for or against same sex marriages. Both views-for or against homosex-
ual marriage-are at home in the Catholic world and neither one of them can be called more ortho-
dox or more official or more Catholic than the other.
Is the pope then wrong? I would join many other Catholic theologians in saying that he is defi-
nitely wrong and he will be corrected some day by one of his successors and by the rest of the
church as previous popes who permitted slavery etc. were corrected. This is the way of the
Church. After all, Pope Benedict also teaches that a spouse whose partner is HIV positive is still
not permitted to use a condom for protection. This is obviously wrong and some bishops have
even come out and said so. Almost all Catholic theologians say the pope is wrong on that point.
There is a clear distinction to be made between “Vatican theology” and “Catholic theology.” As
in the above example, Vatican theology says a spouse cannot use condoms for protection from an
HIV positive partner! Catholic theology, including the theologians and the sensus fidelium, the
wisdom of the laity, does not hold that strange and damaging view.
In an old Catholic teaching called Probabilism we find the answer for Catholics. When there is a
debate on a moral issue (in this case same sex unions), where there are good reasons and good
authorities on both sides of the debate, Catholics are free to make up their own minds.8
This means that Catholic same-sex couples are perfectly free to practice their Catholic faith, re-
ceive the sacraments, and never feel that God forbids their union-or that their faithful, sexual un-
ion is anything but holy.
The view that homosexual people are condemned to involuntary celibacy for life is as cruel as it
is absurd. Jesus said of celibacy: “Let those accept it who can” (Matthew 19:12). Voluntary celi-
bacy for a good cause is something some can do but it is seen as a special talent, a special gift that
not all have. The Vatican council called it “a precious gift of divine grace which the Father gives
to some persons,” but not to all.9 Abstaining from all sexual activity is seen by the Council as
something “unique.”10 You can not demand from all homosexual people that which is “unique.”
St. Paul recognizes the same thing when he says “it is better to marry than to burn” (1 Corinthians
7:12). What kind of gospel “good news” would it be to tell all gay persons that their only choice
is to burn?
Objection # 3: Homosexuality is a mental illness.
Some psychiatrists in the past did think homosexuality was an illness. That is no longer the case
and it is an insult to homosexual people to keep repeating that old and outmoded theory. Studies
of gay couples indicate that they tend “to appear as well adjusted as heterosexuals, or occasion-
ally, even more so.”11
Objection # 4: Children will be damaged unless they grow up in a home with a mother and a fa-
ther.
This is not true. Psychologist Charlotte Patterson, among many others, has done extensive re-
search on children of lesbian and gay parents. Her conclusion is that this does not present prob-
lems and does not lead to any higher rates of homosexual children.12 Theologian Mary Hunt
writes: “Many lesbian and gay families have adopted children, welcoming them with love and
affection, reasoning that a child’s life with one parent or two parents of the same sex is far better
than languishing in an institution or, worse, dying from neglect.”13
Objection #5: Homosexuality is unnatural because it is never found in animals.
This is untrue. In his extensive study, Biological Exuberance: Animal Homosexuality and Na-
tional Diversity, biologist Bruce Bagemihl shows that homosexuality is part of our evolutionary
heritage as primates. He reports that more than 450 species regularly engage in a wide range of
same-sex activities ranging from copulation to long-term bonding.14
CONCLUSION
Homosexuality is not a sin. Heterosexism (prejudice against people who are homosexual) is a sin.
It is a serious sin because it violates justice, truth, and love. It also distorts the true meaning of sex
and thus also harms everyone, including heterosexuals.
It’s what you do with your homosexuality or your heterosexuality that determines morality. Ho-
mosexuality like heterosexuality is morally neutral. As Catholic philosophers Daniel Dom-
browski and Robert Deltete from the Jesuit Seattle University say “homosexual sexual relations
[like heterosexual sexual relations] can be moral or they can be immoral.”15 Moral theologian
Christina Traina says that “the ultimate fruitfulness and durability of any union-heterosexual or
homosexual-have everything to do with faith, friendship, generosity, community support, sexual
and verbal affection and the hard work that goes into mutual formation of a working partner-
ship.”16
Sexuality is a gift to be cherished. We have no right to deny it to those whom God has made gay.
As theologian Kelly Brown Douglas says, we have to create “a church and community where
non-heterosexual persons are able to love themselves and those whom they choose to love with-
out social, political or ecclesiastical penalty” so that they may enjoy life and enjoy sex with
gratitude that life is so full of goodness and enriching variety.17

Cited literature:
1. John Boswell, Same-Sex Unions in Premodern Europe (New York: Vintage Books, 1995).
Boswell writes that in the same sex ceremonies, we see the two persons of the same sex
“standing together at the altar with their right hands joined (the traditional symbol of mar-
riage), being blessed by the priest, sharing Communion, and holding a banquet for family and
friends afterward... Same sex unions were thus neither a threat to nor a replacement of hetero-
sexual marriage,” 191.
2. Andre Guindon, The Sexual Language: An Essay in Moral Theology (Ottawa: University of
Ottawa Press, 1977), 370.
3. Mary Hunt, “Eradicating the Sin of Heterosexism,” forthcoming in Heterosexism: Roots and
Cures in World Religions, ed. Daniel C. Maguire.
4. Ibid.
5. Congregation for the Doctrine of the Faith, “Considerations Regarding Proposals to Give Le-
gal Recognition to Unions between Homosexual Persons,” June 3, 2003.
6. See Robert Nugent, ed., Challenge to Love: Catholic Views of Homosexuality (New York:
Crossroad, 1983). Daniel C. Maguire, “Catholic Ethics in the Post-Infallible Church,” in The
Moral Revolution: A Christian Humanist Vision (San Francisco: Harper & Row, 1986).
7. See Challenge to Love: Catholic Views of Homosexuality.

Anonymous said...

Hey, Ricky -- isn't the Catholic
Church opposed to same sex marriage just like it's opposed to discarding spouse #1?

Doesn't that make you a "sinner" as well? If you are so concerned about the "defense of marriage" why didn't you preserve yours?