More on the Gay Marriage Ruling

If people act like they are married, are they married? Natural law would indicate, yes they are as the bond that develops between the parties is firm and life long lasting (hopefully).

The Church says you sin if first you don't let one of her appointed witnesses witness the recognition of the bond -- this might have more to do with stipends than with the sacramentality of the bond which exists when the bond is formed. Or this might be the Church's response to that fact that the nation states were influencing formation of households by requiring civil marriage licenses.

In any case, is civil 'marriage' an issue of natural law, or is the formation of households the primary reason that civil marriage is important? If it is about households then is makes sense that the civil government require a license. If 'marriage' is about that bond which the Church is convinced can be formed only between one man and one woman, then the Sacrament of Marriage can be witnessed by the Church with impunity when it exists between one man and one women. In as much as the Sacrament of Marriage imputes an household formation, it benefits the state to require a civil marriage license.

In the end it should be of little consequence to any church that any civil government issues any license as long as it maintains good order sufficient for any church to exist and function in that society maintained by civil government.

There is a side benefit to the Church's (which is in union with the Archbishop of Rome) defense of marriage between one woman and one man in natural law. It has become clear that telling married Catholics that they sin unless their marriage is formally witnessed by an appointee of the Church is on the whole unnecessary. The bond of marriage exists per natural law which is of divine origin, not in the Church's institutional recognition.

Mr. Winters--
I have to admit, this post makes little sense to me. You seem to pick up one word (private) in a 130-odd page document that frightens you and use it to reinforce the canard of a "dictatorship of relativism." Perhaps this is due to the article that you read. I cannot say that I've read the article, as I was too busy reading the opinion.

First of all, the phrase which is, as you say, in all caps is such because it is a section heading. That being said, it is the thrust of his argument, though is also sadly inaccurate as a heading. The opinion does not say that moral disapprobation is not a legitimate grounds for legal prohibition, provided that that disapprobation has a REASONABLE basis. Moral disapproval IN AND OF ITSELF is inadequate. Rather than some "dictatorship of relativism" this case is rather a perfect example of the opposite: a free exchange of views and ideas based on reason to achieve the legal good. This strikes me as discernment at its finest. Its redolent on every page, as the "reasonable" arguments that supposedly underpin Prop 8 supporters moral disapprobation are analyzed and (utterly) demolished.

Which to you is more relativistic? This process, where arguments are made, engaged, and judged on their merits to find one side is lacking? Or to do the same, and then decide with those who made no good arguments simply because "it's what people want to hear?" You claim that we Catholics discern morality whereas others (we are left to infer) create it. As naive as that statement is on its face, it is also false in this context. First off, this is a case deciding not morality, but law. Secondly, I would be quite curious what process you would have that is more based on discernment of reality and comparative harms and goods than this one. Nothing was "created" that was not based on a solid and reasonable discernment and analysis of actual evidence. You may, of course, disagree with it. But hopefully you would have some reasonable arguments that could convince someone who didn't already agree with you, something the proponents of Prop 8 spectacularly failed to do.

You also seem to infer, as you do whenever you discuss this topic, that pro-gay marriage supporters simply affirmed this as a private matter. Again, had you actually read the decision, you would be hard-pressed to make this case (as you would be if you read a great many theological works on gay marriage that have nothing to do with "private, autonomous choice," by the way). The public nature and recognition of marriage had EVERYTHING to do with the reasoning of both the plaintiff couples and the reasoning of the court, from the social goods for the couple and children to that of state economies. To pretend that this is some insidious instance of relativism or individualism run amok simply belies the evidence. But of course, to discern that, one may have to dig a bit deeper than USA Today will allow.

What you fail to fully grasp, however, Mr. Winters, is that in Judge Walker's ruling you are staring liberalism square in the face. And liberalism is fully-entrenched in today's Democratic Party, eating and eroding away at it. So in essence the face you see staring at you in the opinion is that of the Democratic Party as well. It is only a matter of time until Pres. Obama reverses course on his opposition to same-sex marriage, as is current opinion is merely politically expedient, and more importantly because he is a full-throated supporter of the jurisprudential commitments that resulted in Judge Walker's ruling. And that is not an "attack" or some other thing on the President; it is clear in his teaching and in his writings that, while he may disagree with the outcome, he is fully in agreement with the reasoning.

If in fact this were only a private matter, that is one thing. But the public aspects of denying same-sex couples many of the same civil rights that heterosexual couples have makes it a public issue.

An example: In order to refinance their house in California, my daughter and her partner had to pay an attorney to have the partner's name taken off of the deed. Then they had to pay for the refinance. After that was completed, they again had to pay an attorney to replace the partner's name on the deed. My heterosexual daughter and her husband got their house refinanced promptly, with no extra money involved.

One small example of this being a matter of civil rights -- and that is a public issue.

Scalia recognized that Lawrence would be the gateway to gay marriage and other such changes because it fundamentally altered the focus of Due Process and Equal Protection and analysis.

It used to be that a court deciding a Due Process case evaluated whether the state action impinged on a "fundamental" liberty interest. If it did, the state needed to show compelling reasons for its action. Traditionally, in order to determine whether a right was "fundamental" or not, the court would ask whether it was (1) deeply rooted in our nation's history and tradition; and (2) implicit in the concept of ordered liberty.

In a prior case (Bowers v Hardwick), the Supreme Court already evaluated whether sodomy was behavior that was "deeply rooted in our nation's history and tradition" and "implicit in the concept of ordered liberty" and resoundingly decided it was not.

In Lawrence, however, the court revisited the question and, in order to get around the precedent of Bowers, conducted the analysis at an entirely different level. Instead of asking whether the freedom to engage in sodomy was deeply rooted in our nation's history and tradition--which, of course, it isn't--they ignored the specific conduct at issue and turned the case into a privacy case by framing the question as whether the state could restrict "private human conduct, sexual behavior, and in the most private of places, the home."

Using that broadened analysis, the Supreme Court overruled Bowers and concluded that the state's restrictions against sodomy did not withstand scrutiny. The Court reasoned:

"This, as a general rule, should counsel against attempts
by the State, or a court, to define the meaning of the relationship
or to set its boundaries absent injury to a person
or abuse of an institution the law protects. It suffices for
us to acknowledge that adults may choose to enter upon
this relationship in the confines of their homes and their
own private lives and still retain their dignity as free
persons. When sexuality finds overt expression in intimate
conduct with another person, the conduct can be but
one element in a personal bond that is more enduring.
The liberty protected by the Constitution allows homosexual
persons the right to make this choice."

Thus, it was the freedom to engage in private, sexual conduct within the home was within the sphere of personal and private interests that triggered the heightened scrutiny of a fundamental right.

Scalia also was concerned because Justice O'Connor's concurring opinion suggested a shift in its Equal Protection analysis. The anti-sodomy law in Lawrence applied on its face to heterosexuals and homosexuals. Men and women, heterosexual and homosexuals alike, all were subject to its prohibition of deviant sexual intercourse with someone of the same sex. However, the law clearly distinguished between the sexes in that men could violate the law only with other men and women only with other women.

Scalia suggested that such a distinction could not be the basis for objection since it is precisely the same distinction regarding partners that is drawn in state laws prohibiting same-sex marriage. In other words, while it did not on its face distinguish between sexes, under Justice O'Connor's analysis the discrimination would creep in at the level of the sexual proclivity of the partner; that is, at the level of the conduct. She suggested that a law casting moral opprobrium on one class of people based on their proclivity for a certain type of conduct would trigger a "more searching form of rational basis review."

O'Connor's approach represented an entirely new sort of Equal Protection review. Scalia recognized that this approach would leave laws limiting marriage to heterosexual couples on "pretty shaky ground." After all, on their face they don't discriminate (any woman can marry any man, and vice versa), they would be subject to heightened scrutiny due to the moral judgment that they cast on one set of people.

That's precisely what Judge Walker concluded: Even though it is facially non-discriminatory, Proposition 8 violates Equal Protection because it targets gays an lesbians based on their relationship together, specifically due to sex.

Scalia was right on the money. We'll see whose view prevails when the Prop 8 case gets to the Supreme Court.

Mr. Buechel:

you really failed to understand the point. Judge Walker reduced to a private moral disapproval what is a public, objective assessment of value: that society has an interest in men and women getting together to bear and raise children, whereas it has no interest whatsoever in people's romantic/sexual pairings (either homosexual or heterosexual).

Be glad that the common law and the consitution allows the privacy out as well as the freedom of relgions to do what they want. You would not like the alternative - for a state that is empowered to rule on the wrongness of homosexuality would also be able to rule on its rightness and impose that ruling on the Churches.

By the way, the Church's teaching on this issue is not consistent with any natural law reasoning that does not seek refuge in scripture and theism. That's not my view, its the view of the author of Fagothy's Right and Reason, which is the ethics book used in Catholic minor seminary.

The teaching that homosexuality is disordered is a band-aid. Prior to that teaching, which is recent, the church was on the road to teaching that homosexuals were wonderfully made and that sexuality is a gift from God. Put the two together, and you have to concede gay marriage and the licitness of homosexual sexuality. JPII, assisted by the current Pope, attempted retrenchment - but it won't last.

Traditionally, Catholic teaching on marriage has followed the lead of the state and in some nations, marriage and its sacramental blessing are still separate acts. This presents a problem for the Church, which can be solved in understanding Torah teaching on what happens in marriage, which Christ echoed when addressing the question of divorce. When someone gets married, the leave their families and cling to their spouse and the two shall become one. That is as much about legality as sexuality and it is true regardless of the genders of the parties involved. What was disturbing was the parents of gay children excluding their life partners in times of medical crisis and the state not recognizing their rights in relation to the rights of the family. This had to be corrected and marriage corrects it. Celebrating weddings in the Catholic Church is a way for families to recognize that the familial dynamic has altered. To not celebrate gay weddings is to deny Catholic families with gay members the chance to come to grips with the transition, which comes when one person promises fidelity to another - which is the essence of sacramental marriage and does not depend upon either priest nor witness (as I was taught in both marriage prep and Catholic H.S.).

On the question of moral disapproval, it could have easily been written as moral scorn - meaning that moral scorn is no more an actionable right under the freedom of religion (demanding conformity by society, such as outlawing the marriage rights of others or their right to serve in the armed forces) than yelling fire in a theater is a legitimate application of the freedom of speech. This protects the Church in areas in the south where the prominent domination still holds to and teaches the belief that the Pope is the anti-Christ. You cannot have it both ways.