How the bishops should respond to the same-sex marriage decision

With the U.S. Supreme Court decision legalizing gay marriage throughout the United States, the U.S. Catholic bishops need a new strategy going forward. The bishops' fight against gay marriage has been a waste of time and money. The bishops should get a new set of priorities and a new set of lawyers.

Some opponents of gay marriage are calling for civil disobedience, telling government officials to ignore the decision and not to perform same-sex marriages. Others are calling for a constitutional amendment to overturn the decision. Many have argued that the court decision will not put the issue to rest any more than Roe v. Wade ended the abortion debate.

First, let's make clear what the decision does not do. It does not require religious ministers to perform same-sex marriages, nor does it forbid them from speaking out against gay marriage. These rights are protected by the First Amendment. The court has also made clear that a church has complete freedom in hiring and firing ministers for any reason.

The legal status of gay marriage is similar to that of remarriage after divorce. Divorce and remarriage is legal in every state of the union, but if a church is against remarriage after divorce, its ministers are not required to perform such weddings, and its preachers can continue to denounce divorce from the pulpit. If a minister gets divorced, his church can fire him or her.

The divorce analogy is apt. The bishops would do well to look at the record of their predecessors who opposed legalizing divorce but lost. These bishops eventually accepted divorce as the law of the land while not permitting remarriage without an annulment in their churches.

Today, Catholic institutions rarely fire people when they get divorced and remarried. Divorced and remarried people are employed by church institutions, and their spouses get spousal benefits. No one is scandalized by this. No one thinks that giving spousal benefits to a remarried couple is a church endorsement of their lifestyle.

If bishops in the past could eventually accept civil divorce as the law of the land, why can't the current flock of bishops do the same for gay marriage? Granted all the publicity around the church's opposition to gay marriage, no one would think they were endorsing it.

It is time for the bishops to admit defeat and move on. Gay marriage is here to stay, and it is not the end of civilization as we know it.

Those who compare Obergefell v. Hodges to Roe v. Wade have not looked at the poll numbers. The U.S. population has stayed polarized over abortion for decades, but the support for gay marriage has continued to rise. There is absolutely no possibility of a constitutional amendment overturning the decision. Gay marriage is not a matter of life and death. While it may be an issue in this year's Republican primaries, it is not in the population as a whole.

Now that gay marriage is the law of the land, many bishops fear that the next fight will be over the religious freedom of people objecting to gay marriage.

Let's be perfectly clear. In Catholic morality, there is nothing to prohibit a Catholic judge or clerk from performing a same-sex marriage. Nor is there any moral obligation for a Catholic businessperson to refuse to provide flowers, food, space and other services to a same-sex wedding. Because of all the controversy over these issues in the media, the bishops need to be clear that these are not moral problems for Catholic government officials or Catholic businesspeople.

Again, Catholic judges have performed weddings for all applicants, including Catholics who are getting married in violation of church teaching. Catholic businesspeople have provided services to any wedding party, including those of divorced Catholics marrying outside the church. Similarly, there is no moral problem for them to do the same for gay couples.

The church has sophisticated moral teaching that includes the distinction between formal and material cooperation and the elimination of moral culpability when a person is operating under compulsion.

For other believers, these may be moral issues, but not for Catholics. Because of all the rhetoric around these issues, the bishops need to make this clear for scrupulous Catholics.

Anti-discrimination laws

Currently, there is no federal law forbidding discrimination against gay people in employment or housing, but an increasing number of states are enacting such legislation. Will the bishops fight the passage of these laws out of fear of their impact on Catholic institutions?

The better strategy for the U.S. bishops is to imitate the Mormon church that worked together with gay activists on the enactment of laws against discrimination in employment and housing in Utah. In exchange for the church's support, the gay community was willing to accept exemptions for the Boy Scouts and Mormon institutions like Brigham Young University. John Wester, now archbishop of Santa Fe, N.M., supported this legislation when he was bishop of Salt Lake City.

It may be too late in some states to work out such deals because the gay activists already have the votes they need, but in other states, the church's support could make the difference in getting nondiscrimination legislation passed. In any case, making clear that the church opposes discrimination against gay people could help heal the bitter division between the church and supporters of gay rights.

It may be possible to appeal to gay pragmatists who recognize that politically, it would be smart for them to be gracious in victory. Ganging up on churches may lose them support for their primary objectives. A few minor exemptions are a small price to pay for achieving their principal goals.

There is no question that religious freedom issues will arise in the future either because of anti-discrimination laws or strings attached to government funding.

For example, Catholic colleges and universities that provide housing for married couples are undoubtedly going to be approached for housing by same-sex couples. Unless the schools can get states to carve out an exception for them in anti-discrimination legislation, they could be forced to provide such housing.

But since they already provide housing to couples married illicitly according to the church, no one should see such housing as an endorsement of someone's lifestyle. And granted all the sex going on at Catholic colleges and universities, giving housing to a few gay people who have permanently committed themselves to each other in marriage would hardly be considered a great scandal. 

A second issue will be the provision of spousal benefits to gay employees in Catholic institutions, especially universities and hospitals. Again, these institutions already give such benefits to divorced and remarried employees. No one considers this scandalous. The fact that the church considers health care a right should be the deciding factor, not the gender of the spouse.

Finally, the most controversial issue to be faced is children of same-sex couples. Happily, it is clear that these children should be baptized and welcomed in Catholic schools.

But Catholic adoption services have lost their government funding because they refused to sponsor children with same-sex married couples, even if they are willing to refer such couples to other agencies. Ironically, these agencies did sponsor children with single gays in the past following a "don't ask, don't tell" policy about who might be living with them. It was only married gay people to whom the bishops objected.

Church officials, including the pope, have argued that every child deserves to have a mother and a father, with the inference that without a mother and a father, the child will somehow suffer. There are a number of problems with this position.

First, it casts doubt on the millions of single parents who are heroically raising their children without spousal support.

Second, it has a narrow vision of the family. The church has traditionally recognized the importance of uncles, aunts and grandparents in the raising of children. There will be other sexes in the extended families of these children.

Third, often, same-sex couples adopt children whom no one else wants. Would these children be better off in foster homes or orphanages?

Finally, there is no evidence that children of same-sex couples suffer as a result of their upbringing. The original study that argued that children raised by same-sex couples did not do as well as those raised by heterosexual couples has been proven faulty.

In a 2013 amicus brief opposing the Defense of Marriage Act, the American Sociological Association said, "The claim that same-sex parents produce less positive child outcomes than opposite-sex parents -- either because such families lack both a male and female parent or because both parents are not the biological parents of their children -- contradicts abundant social science research." 

Rather, "positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources."

The American Academy of Pediatrics agreed and supported same-sex marriage because marriage provides needed stability in children's lives:

Many studies have demonstrated that children's well-being is affected much more by their relationships with their parents, their parents' sense of competence and security, and the presence of social and economic support for the family than by the gender or the sexual orientation of their parents. Lack of opportunity for same-gender couples to marry adds to families' stress, which affects the health and welfare of all household members. Because marriage strengthens families and, in so doing, benefits children's development, children should not be deprived of the opportunity for their parents to be married. 

Just as Pope Francis depended on scientific consensus when dealing with the environment, the church should also consult the best of social science before making sweeping assertions about children and families.

It is time for the U.S. bishops to pivot to the public policy priorities articulated by Pope Francis: care for the poor and the environment and the promotion of peace and interreligious harmony. Their fanatical opposition to the legalization of gay marriage has made young people look on the church as a bigoted institution with which they do not want to be associated. As pastors, they should be talking more about God's compassion and love rather than trying to regulate people's sexual conduct through laws. 

[Jesuit Fr. Thomas Reese is a senior analyst for NCR and author of Inside the Vatican: The Politics and Organization of the Catholic Church. His email address is treesesj@ncronline.org. Follow him on Twitter: @ThomasReeseSJ.]

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