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.

Friday, April 29, 2011

SSM and institutional integrity

Over at Public Discourse, Matthew Franck has posted an essay lamenting King & Spalding's decision to withdraw from its defense of DOMA (discussed on MoJ here and here).  He writes:

[I]ntimidation—“mau-mauing the flak-catchers,” Tom Wolfe memorably called it—is now the default tactic of same-sex marriage advocates. What else, for instance, explains the antics of now-retired federal judge Vaughn Walker, who wanted to broadcast the Proposition 8 trial in California, and then broke his promise—and his legal duty—to keep the trial’s video record from public view? What else explains the instantaneous denunciation of all opponents of same-sex marriage as “haters”? Resistance to such intimidation, in the name of the ethic of institutional integrity, is fast becoming the duty of all persons in positions of institutional responsibility, whatever their private views on homosexuality or same-sex marriage. When we witness such principled resistance, as in the case of Dean Evan Caminker’s decision to stick with Ohio Senator and alumnus Rob Portman as the commencement speaker at the University of Michigan’s law school—despite the outcry of those who object to Portman’s 1996 vote for DOMA as a House member—we should applaud it heartily.

Yes, we should applaud institutional resistance to intimidation heartily, but I think we need to pause and acknowledge that maintaining institutional openness to both sides of the SSM debate depends on a substantive analysis of that debate and an ability / willingness to distinguish it from other civil rights debates.  Sometimes we applaud when institutional legitimacy has been withheld from positions that were once deemed plausible, even mainstream.  Today we would not as readily embrace a law firm that devotes its time (especially at a discounted billing rate) to defending the constitutionality of an anti-miscegenation law, nor would we deem prudent a law school's decision to invite David Duke to serve as its commencement speaker, even if he was an alum.   My point is not that inviting Rob Portman to speak is the same as inviting David Duke to speak; my point is that we need to be able to explain the difference in terms that are accessible to, and that resonate with, institutions; this is no easy task, for (most) institutions have a hard time engaging with moral norms beyond those of nondiscrimination and individual liberty. 


Vischer, Rob | Permalink

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One of the problems is the attempts to equate opposition to homosexual "marriage" with racism. Those are separate issues entirely. It is NOT the same. Same sex attraction is not a "race."

Posted by: Fr. J | Apr 29, 2011 4:12:16 PM

"same sex attraction is not a race."

Not the sort of resonant explanation Rob Vischer had in mind for treating the two cases differently, I suspect.

Posted by: Marty L. | Apr 30, 2011 8:16:15 AM

Marty, isn't that the crux of the matter? There is a difference between racism and opposition to homosexual "marriage." Homosexuality is not a race. You can disagree with homosexual acts and that is NOT wrong. In fact it is part of the Catholic faith. What I see happening is a slow movement making the professing of the Catholic faith a hate crime. It is an attempt to play the race card to silence opposition to a behavior that undermines what marriage is. I do hope the truth is resonant.

Posted by: Fr. J | Apr 30, 2011 4:05:04 PM

The difference between racism and the definition of marriage is that racism is morally wrong and the definition of marriage is not. If racism is to be equated with either side of the debate, it is more reasonably equated with proponents of same sex marriage in that both same sex marriage and racism are morally wrong. Obviously, our social elites do not understand this. Their incomprehension concerning marriage also renders them incapable of seeing that their effort to make support of the definition of marriage socially unacceptable is, like their effort to make abortion uncontroversial, doomed to failure because it is contrary to the truth. Although ultimately doomed to failure, the effort to demonize the definition of marriage is nevertheless setting up a very ugly conflict.

Posted by: Dan | Apr 30, 2011 4:11:51 PM

I have hesitated to comment on this topic here because it is paradoxical. Clearly it is a bad thing to economically punish law firms that represent “unpopular clients” but such bad behavior can happen even among those who are in the right. DOMA is unjust, and those who oppose it are in the right, even if they lapse into bad behavior while fighting this injustice.

Much has been written about the importance of the rule of law, and the integrity of the legal process; but for gays and lesbians, the law and the legal process have often been used as cudgels to inflict injustice on them (such as: DOMA itself). It is irrational to allow the law to be used as a weapon to inflict injustice on people and then expect those people to revere the Law. The people who legally leaned on K&S (However much we dislike it, it was legal.) are the very people DOMA is intended to harm. Outrage at their behavior is somewhat comical when the law was used to inflict injustice on them beforehand.

Bottom line: the Law and the legal system will get no more reverence that they earn. If the Law is used to hurt, it is not a surprise that others will hurt it. It is unfortunate, but also unsurprising.

sean s.

Posted by: sean samis | May 4, 2011 11:42:29 AM

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Posted by: college admission essay examples | May 5, 2011 12:53:14 AM

"The difference between racism and the definition of marriage is that racism is morally wrong and the definition of marriage is not."

This is all the your opponents get out of a statement like this, even though both are being punished for inherent traits, only one context of discrimination is valid because someone else said so.

That ain't going to hold up anywhere outside of the context of your church.

Posted by: Joseph R Yungk | Jun 7, 2011 5:07:17 PM