September 06, 2013
Bottum's essay and "legal moralism"
Jody Bottum's Commonweal piece has attracted a fair bit of attention, criticism, praise, raised eyebrows, etc., during the last few weeks. I gather that he has tried to clarify or re-state a few things that, in the essay itself, were not said so well (e.g., his off-the-cuff and unwarranted dismissal of the argument that the Constitution does not require including same-sex relationships in the legal category of marriage).
I have read the essay twice. It is, as many have pointed out, very long and I think it is fair to say that it meanders and that its arguments are, at times, difficult to follow. Although the piece was billed as a "case for same-sex marriage," it's not clear to me that the essay was actually crafted or intended to make such a "case."
Initially, it seemed to me that, for purposes of this blog, what might be of particular interest in the piece is the connection between (what I think was) the author's point (i.e., those who embrace what the Church teaches about marriage should nevertheless accept, and abandon efforts to resist, revisions to the law's definition of marriage) and the longstanding debate / conversation about "legal moralism" and about the extent to which the demands, prohibitions, definitions, and categorizations of the positive law should track those of morality. (See generally, e.g., G. Kalscheur, "Moral Limits on Morals Legislation", here.) On this topic, I took Jody to be saying that because of certain things about our contemporary culture in the United States (including our views about sexuality and marriage generally), it no longer makes sense -- it will not, for much longer, be possible -- to insist or even expect that the positive law regarding the legal category of marriage track what the Church teaches (and, I think, Bottum still believes is true) about marriage.
So, is this true? I take it that Bottum believes that even if popular opinion swings dramatically toward the legalization of euthanasia, he (and the Church) should continue to oppose the legalization of euthanasia and should resist this legalization even after it happens. Why, in Jody's view, is this "case" different? Because of a distinction between "public" and "private" matters? Because euthanasia's legalization endangers the vulnerable while legal recognition of same-sex marriages does not? Because the Church and her bishops have credibility on dignity-of-life issues but not on matters relating to marriage and sexuality? For other reasons?
Bottum also suggested, I think, that, given all the cultural givens (the lack of "enchantment," etc.), it is almost anomalous for the law *not* to recognize same-sex marriages, that those who embrace the Church's teachings cannot reasonably expect this anomaly to continue, and that perhaps they should, instead, work on changing these cultural givens and -- thereby, eventually -- changing our practice of marriage. A question, though, is whether accepting, resigning to, or even endorsing the move toward legal recognition of same-sex marriage is actually likely to change these cultural givens or prompt changes in the practice of marriage -- to "re-enchant the world," as Bottum puts it. Or, as some fear, will this move be accompanied by intrusions on religious freedom, by unforeseen consequences, and by additional cultural changes that make the practice of marriage even more difficult?
As I thought and talked about the issue more, it started to seem to me that my "ah, we're talking about legal moralism!" reaction was itself a mistake. After all, as a friend pointed out, we are (almost) *always* talking, when we talk about what the content of the positive law should be, not about *whether* the positive law should reflect, teach, and / or enforce "morality," but about *which* views regarding the true, good, beautiful, and right the law should reflect, teach, and / or enforce. If this is right, Jody's essay is not of a piece with the misguided "you can't legislate morality" assertion that we often (oddly) hear in law-school classrooms, but is instead a call for "conservatives" to accept the fact that positive law of marriage is moving to reflect more accurately the moral views that, he thinks, are the ones that (for better or worse) increasingly, and perhaps already, animate our culture and practices. And, if *this* is really what Bottum was arguing -- and not that what the Church teaches about marriage and sexuality is wrong -- then it seems to me that the two primary counter-arguments will be (a) No, the positive law's apparent movement in that direction will not necessarily continue, in part because that movement is not, actually, consistent with the moral views that most people hold and want the positive law to reflect and / or (b) the positive law's movement in that direction should be resisted, even if it is consistent with the moral views that increasingly hold sway, because those moral views are misguided and need to be (charitably, effectively, etc.) challenged. Or . . . I could (still) be misreading the essay!
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