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, September 27, 2005

Murray and same-sex marriage

Rob asks:  "What would Murray have said about today's debate over same-sex marriage?"  I should say, first, that I do not know the answer.  Still, pressing on . . .

Rob writes:  "One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path.  But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?" 

I've been thinking a bit, and talking with others a bit, about this, and I don't think the religious-freedom analogy really works.  Murray's understanding of religious freedom was tied, after all, to what he regarded as truth-claims about human persons, i.e., that they have "dignity" and that coercion in religious matters is inconsistent with that dignity.  Murray's "no coercion" rule certainly does not -- in his view, anyway -- make religious truth any less "uniquely authentic", even if it does mean, in all likelihood, that not all will seek, find, or accept it.  And, I'm not sure Murray would think -- to the extent we care what he would think -- that his no-coercion / human dignity argument for religious freedom translates so smoothly to an argument for (what arguably would be a striking) redefinition of marriage, even "civil" or state-recognized marriage.

Rob continues:  "In both contexts, [i.e., religious-freedom and marriage,] the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well.  If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?"  I could be wrong, but I would be surprised if Murray meant by "public morality" "those moral standards that happen, at present, to be accepted by a majority of the people," rather than [true?] morality as it relates to public, and not purely private, matters.  And, I doubt Murray would have regarded marriage as a private matter.

Now, it does seem to me that there could be strong, Murray-type arguments (as opposed, perhaps, to constitutional arguments) against criminal statutes of the kind invalidated in the Lawrence case.



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