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.

Wednesday, June 22, 2011

Dolan and double standards


I don't see why Timothy Dolan should be held to higher standards of argumentative depth and analytical rigor than those to which Andrew Cuomo, Michael Bloomberg, and John Shelby Spong, for example, are held by those sharing their belief that marriage should be redefined in such a way as to include same-sex partners.  Do you?  I would note that, like Archbishop Dolan, those seeking to refedine marriage did not seem to take Father's Day off from their crusade against traditional norms of sexual morality.  What you say of the Archbishop, one could with equal or greater justification say of his opponents in this debate:  Perhaps if they put a bit more thought into their comments, and paid more attention to the arguments on both sides, it would help those of us who are struggling to understand their panic in the face of the possibility that American law could continue to honor the historic definition of marriage as a male-female partnership.

One searches the comments of the Cuomos, Bloombergs, and Spongs in vain for reasoned arguments (as opposed to slogans or question-begging claims) or for answers to the very specific challenges to their position that defenders of conjugal marriage have advanced.  Instead we find a series of conclusory zingers (such as "love makes a family," or "you had better get on the right side of history") and defamatory insinuations (e.g., those who disagree with us are "haters" and "bigots").

I can't pretend to speak for Archbishop Dolan, but if you're interested in how defenders of conjugal marriage might answer the central questions you pose in your post, you might have a look at an article I've written with Sherif Girgis and Ryan Anderson entitled "What is Marriage?" (available here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155).  If you can identify errors in our premises or fallacious inferences towards any of our conclusions, I would be grateful to you for pointing them out.  Some of the most able scholars supporting the redefinition of marriage, including Kenji Yoshino of NYU and Andrew Koppelman of Northwestern, have labored to find defects in our arguments.  You can judge for yourself whether they've succeeded.  While you're at it, perhaps you could form a judgment as to whether they have met---or have even attempted to meet---the specific challenges we have put to them in Section I.E. of our paper.  Have they, for example. been able to identify a principle consistent with their premises that explains why marriage is the union of two people, and not three or four or more in a polyamorous sexual partnership?  Can they explain why marriage is a sexual partnership at all, as opposed to a parternship that could equally well be integrated around tennis-playing, or bird-watching, or some other shared interest or activity?  Have they identified a principled basis for marriage as an exclusive (as opposed to open) sexual partnership?  I think you will find that they have failed---or failed even to try.  (Koppelman ends up claiming that marriage is a "social construct" that has no essential properties---such as monogamy as opposed to polyamory, fidelity as opposed to sexual "openness," etc.---at all.  Yoshino, it turns out, signed a statement urging that we go "beyond same-sex marriage" to embrace the idea of marriages that include multiple sexual partners.)

Here are links to Kenji Yoshino's attempts to refute our arguments, followed by links to our replies:





Here are links to Andrew Koppelman's efforts, followed by links to our replies:





In defense of the view that marriage is intrinsically related to procreation, but not as mere means to an end, here are links to a two-part analysis I did with Patrick Lee and Gerry Bradley:



Again, I am not pretending to speak for Archbishop Dolan.  But I hope these articles prove that a great deal can be said in support of his position.  In fairness, it could be pointed out that the writings of serious intellectuals like Yoshino and Koppelman (and Bill Eskridge and others) can be cited in support of the position being advanced by Governor Cuomo, Mayor Bloomberg, and Archbishop Spong, though they themselves clearly do not attempt to provide analysis of the sort that their scholarly supporters offer.  In truth, I don't blame Cuomo, Bloomberg, or Spong for making their arguments at the level of depth at which they make them, even though their arguments (or assertions) seem straightforwardly question-begging to those of us who don't share the presuppositions they leave undefended (and unacknowledged).  But I really don't think we should demand that public figures, including Catholic bishops, who defend the opposing point of view meet a different standard.  To be sure, the deeper and more compelling their arguments, the better.  But that's true for people on both sides. 


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