July 01, 2013
Following Up on Religious Liberty and SSM
I begin by thanking Rick on his posting of earlier this afternoon concerning Ross Douthat’s and Matthew Franck’s pieces on the impact of the SSM juggernaut, last week’s decisions by the Supreme Court of the United States, and the impact of the letter that several of my friends here at the Mirror of Justice (i.e., Tom Berg and Rick Garnett) have been sending to various officials and law makers around the country arguing for robust religious liberty protection should same-sex couples be granted the legal ability to marry in these officials’ jurisdictions. I am grateful to Tom and Rick and their fellow advocates who have joined them in drafting and submitting letters and legal briefs to these officials, and I am confident that these letters and other documents are filled with sound and objective reason. That is the way the law is supposed to be and on which it is supposed to be founded: principled, moral and containing sound rationale that is objectively based. However, if one listens to the “arguments” offered by jurists, advocates, and supporters of SSM, one will find that the justifications offered to support conclusions and decisions are not formulated and presented in the same fashion. The same can be said of abortion supporters; the same can be said of advocates for euthanasia legislation; and, the same can or will be said about the work of sponsors for other morally problematic issues in the coming years.
Quickly returning to the matter of SSM, the central argument offered by its supporters is the need for equality, equal protection of the laws, and the necessary due process needed to advance the first two themes just listed. But as I and others have argued here and elsewhere, the equality argument does not hold when subjected to unbiased scrutiny; therefore, the adjunct equal protection and due process issues ineludibly fail.
What is important to many folks promoting SSM—as is the case with those advancing “abortion rights”, and, I am sure, some of the other morally problematic subjects to which I have referred—is not contributing to a sound, just, and equitable legal system but to victory—a victory at any cost especially if the cost is borne by their opponents. If either defeat or only partial victory is the result of their efforts, they will persist and return to legislators and judges seeking what they want, and they will persevere until they get what they want. Their superficial argument seems attractive, perhaps even compelling, when the word “equality” or the phrases “equal protection” and “due process of law” are thrown into the mixture. But what is really going on is not the protection of authentic equality by advancing equal protection and due process, but is, rather, the sacrifice of critical and objective reasoning and a moral evaluation of that which is essential to sound theories and, therefore, sound practices of equal protection and due process. Who gets caught in all this and whose substantial interests in the matter are sacrificed become less and less important until the promoters of change obtain their goals. What does this do to the law, its rule, and the laws presumably made under our Constitution?
They become totalitarian and positivist. And that is something which I do not think is compatible with our republican democracy or what the Framers of our basic law had in mind. If one thinks differently and reflects on the positive and despotic states since and including that of Henry VIII’s manufacture, one who sees merit in my perspective may also begin to connect the dots and realize what is going on. As one prominent academic sympathetic with the goals of SSM advocates has asserted in the recent past, when sexual liberty and religious liberty are in conflict, religious liberty (in spite of what the First Amendment objectively states) must yield to sexual liberty in most cases. Oddly enough, this is not in line with the plurality formula of liberty (a most problematic formulation, by the way) presented in Planned Parenthood v. Casey that presumably applies to everyone: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Perhaps what will be added in due course is this addendum: “unless one’s understanding of these matters is also based, at least in part, on one’s exercise of religious freedom.” In essence, then, the subtext of the Casey formulation will be: “Liberty for me, but not for thee!” I would not be surprised if those who intentionally or unintentionally are leading us on to a path to the positivist state might be considering such an amendment to a definition of freedom that is already knotty.
Being one who hopes in goodness and truth prevailing, I pray that this will not happen and that people of good will, such as Rick and Tom, can arrest with their colleagues this dangerous movement in time.
However, I am sufficiently grounded in history to know that if the drive to the positivist state and legal system has succeeded before (as it has), it can happen again. And if it does, those of us interested in developing Catholic legal theory will likely have to find something else to occupy our time. Perhaps helping to reform legal education, which is proceeding more and more in the direction of ideologies that support the positivist mindset I have briefly discussed, might be something to consider—but I, for one, have always thought that this is an important part of the project of Catholic legal theory in the first place.