Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Saturday, August 24, 2013

But there is a coherent jurisprudential argument…


Like Patrick, I was surprised by Jody Bottum’s claim that there is no coherent jurisprudential claim against same-sex marriage (SSM). Since as early as 2000, a number of folks (on both sides of the SSM question) have been willing to engage in discussion and debate about the meaning of marriage. I am one of those members of this group, and I am joined by colleagues and friends here at the Mirror of Justice who have been willing to discuss the meaning of marriage in public forums.

Over these past thirteen years, a number of us have continued to express our desire to engage those with different perspectives on the nature of marriage and why the Church’s teachings on this important institution of civil society are correct. What I have also experienced is that there are supporters of SSM who are willing to debate the topic, but there are some—perhaps many—who are not. It appears that for them there is no need to discuss or debate: they are right because they are right and that’s all there is to it; there is no need for debate. Period.

Mr. Bottum, whose writing I have admired in the past because of his careful analysis and generally measured language, has made a remarkable departure from his previous modus operandi. Asserting that contempt against the Church and its authorities is deserved, he contends that the earned ridicule is based on “loony, pie-eyed judgment” leading the Church and her shepherds “to engage in a sex-based public-policy debate they are doomed to lose.” It seems that Mr. Bottum is of the view that the Church has initiated this particular debate (if in fact there really is a debate), but most of the time it is those whose radical and often totalitarian ideas raise the subject of sex, sexual orientation, gender identity, SSM, etc. and, in doing so, confound objective reason comprehending intelligible reality. But these individuals for the most part are not interested in healthy democratic debate because they are intent on foisting on the public “the things we share” but really don’t share.

I can just imagine that if someone who is opposed to the concept of SSM wrote and published essay employing the tone sometimes used by Mr. Bottum in his Commonweal essay, many would express outrage about the insensitivity and wrongfulness of such an attack. Where is the outrage now? Should there be outrage? Mr. Bottum and his supporters apparently do not think so.

Five years ago, I was invited to present a paper at a conference on SSM. I know the conveners well, and they labored valiantly to invite a balanced set of speakers with very different views on the meaning of marriage to address the issue of SSM. Interestingly, most of the SSM supporters who were invited to participate—all expenses paid—declined the invitation. I was looking forward to engaging some of the SSM supporters on the topics of equality and equal protection which are frequently employed by SSM advocates to justify their position. Sadly, the several SSM supporters who do rely on the equality argument, as I call it, chose not to attend and therefore would not participate. I cannot speculate why they declined the opportunity to engage me and others in discussion and deliberation, but it struck me and others that they did not want to debate the subject on a level playing field. Perhaps my impression is flawed, but I don’t think so. The hope of the organizers of the conference was to have a spirited, honest, and respectful discussion on “things we share,” but this aspiration was hindered. Honest and open debate has always been an essential element of robust democracy and the legal institutions essential to democracy. But recognition of this point does not surface in Mr. Bottum’s discourse on things we Americans presumably share.

Incidentally, some of my thoughts on SSM and related matters, which I argue are coherent, have been presented earlier at the Mirror of Justice HERE, HERE, HERE, HERE, HERE, and HERE.

This brings me to another point that I have already addressed on this site, and that is the emergence of a problem addressed more than half a century ago by individuals such as Jacob Talmon and Christopher Dawson. The problem is totalitarian democracy. For those unfamiliar with the entity, it is a despotic form of governance that emerges from the efforts of the members of a political and social elite who use the forms of democracy to construct a political institution where there is no departure from the unbridled will of the elite who are intent on controlling most, if not all, aspects of public and even private life. Such a political institution is contrary to the ideals of the American people and to which Mr. Bottum pays lip service but not genuine commitment. I would very much like to participate in the things that we presumably share with Mr. Bottum and with those folks with whom I cannot agree on all counts. But I do not fear meeting and engaging them in a respectful fashion which gets us closer to understanding the truth of human nature and the desirability of the good over evil; virtue over vice; and right over wrong. That is what democracy and the common good are all about. However, the totalitarian democrat is interested in none of this because the only thing that can be shared with him or her is that person’s view and no other.

This is not good for the law of a democracy, but, to borrow from Blessed John Paul II, it may be all right for a thinly disguised totalitarianism that calls itself a democracy.


RJA sj


Araujo, Robert | Permalink


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