Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, February 24, 2004

Federal Marriage Amendment

This morning, President Bush announced his support for an amendment to the United States Constitution "defining and protecting marriage as a union of man and woman as husband and wife. The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage."

Over at his blog, Yale Law School's Professor Jack Balkin notes that the President is "attempting to shape the issue in terms of what states may officially term 'marriage,' as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance."

It is not clear to me that Professor Balkin's interpretation of the proposed FMA (the "Musgrave Amendment") is correct. (Here's the text). In any event, the President's action raises (again) the question posed by Rob a few days ago (and many others): In light of the Church's social teaching, but remembering also the fact of pluralism, how ought we to regard an amendment of the kind endorsed today by the President? What about this language (taken from the President's statement):

"Marriage cannot be severed from its cultural, religious and natural roots without weakening the good influence of society. Government, by recognizing and protecting marriage, serves the interests of all. . . .

America is a free society, which limits the role of government in the lives of our citizens. This commitment of freedom, however, does not require the redefinition of one of our most basic social institutions. Our government should respect every person, and protect the institution of marriage. There is no contradiction between these responsibilities. We should also conduct this difficult debate in a manner worthy of our country, without bitterness or anger."

Can we, for example, take seriously the claim that American governments generally act so as to "protect the institution of marriage"? Is it true that a "commitment [to] freedom . . . does not require the redefinition of one of our most basic social institutions," if it is the case that that "institution" -- as it is generally defined in positive law -- is difficult to square with our generally atomistic morality and its attendant understanding of "freedom"? Is Professor Griffiths right to observe (see below) that "in cases of this sort, public argument cannot resolve disagreement. This is not to say that there is no truth of the matter, or that there are no good arguments about it. It is only to say what is also true, which is that public argument will not succeed in producing consensus in this matter. To think that it could is to overestimate its capacities. Catholics should not, therefore, advocate the embodiment of the orthodox view in U.S. marriage law because we think there are persuasive public arguments about the question. There aren't"?



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