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.

Monday, June 16, 2008

More on SSM's "statist orientation"

Tom asks me to clarify what I mean when I refer to SSM's statist orienation; he's correct that I'm primarily referring to state efforts to impose nondiscrimination norms on conscientious objectors.  But I think the tension is broader than that.  Heterosexual marriage, as a legal category, encounters relatively little resistance from the citizenry because it is not just a legal institution -- it's a social, cultural, religious, and biological institution.  Same-sex marriage encounters huge resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social/cultural supports that heterosexual marriage has, even outside the religious context.  Many religious individuals oppose same-sex marriage for specific religious reasons; some non-religious individuals will also oppose -- or at least not rush to support -- same-sex marriage for non-religious reasons (the lack of procreative capacity, history/tradition, the conviction that children need a father and mother, as well as outright prejudice against gays and lesbians).  We can't just answer these various grounds of opposition by saying, "If you oppose same-sex marriage, don't enter into one."  The individuals who oppose same-sex marriage operate the organizations and make up the associations that comprise civil society.  The state's task is to prudently discern how far to push the legal norms of same-sex marriage (e.g., requiring the extension of employee benefits to same-sex spouses, conditioning authority to perform state-recognized marriages on willingness to perform same-sex ceremonies, conditioning tax-exempt status on inclusion of same-sex couples in associational membership), as well as the moral norms underlying same-sex marriage (e.g., punishing anti-GLBT speech or discrimination).  Some of these same questions arise in the context of interracial marriage, but the breadth and depth of the resistance in the same-sex marriage context makes the resolution of these tensions even more difficult.  (This is not to suggest that the resolution of these tensions was easy in the racial context -- e.g., I find problematic the premise of the Bob Jones case that tax-exempt status should turn on an organization's furtherance of state policy.) 


Vischer, Rob | Permalink

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