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, August 30, 2011

Is a constitutional right to SSM inevitable?

Lawrence Tribe says yes:

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner.  Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door.  Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

He may be right, though I still think that there is potential ground on which courts can choose to distinguish between the liberty interest presented by intensely private conduct (Lawrence) and more "public" child-rearing relationships (marriage).  The "child-rearing" nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course.


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If one is to make the claim that same-sex sexual relationships should be recognized and condoned based upon the inherent Right to equal dignity and respect for all persons, one would have to explain how sexual acts that demean the inherent dignity of the human person can respect the inherent dignity of the human person, simultaneously.

Posted by: Nancy D. | Aug 30, 2011 12:50:20 PM

Hi Professor Vischer,

As someone who voted for SSM here in Michigan in 2006 (it lost, unfortunately) I hope that SSM advocates realize that going the constituational amendment route is the wrong way to go on this issue. I would submit that the reason why SSM is gaining traction is because it's advocacy has been from the ground up, rather than the top down.

Issues like SSM, abortion and embryonic stem cell research should all be left to the states (and yes, that would mean goodbye Roe V Wade if I ruled the US). You can't force New York into Mississippi and California into Michigan. One only has to look back at the battles that were still fighting over Roe Vs. Wade to see the folly in federal solutions on these issues.

Posted by: Edward Dougherty | Aug 30, 2011 12:50:21 PM

---"The 'child-rearing' nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course."

Indeed, if only because same-sex couples can, and do, rear children (through adoption, artificial insemination, etc.). There is a nice treatment of this topic beyond "liberty"-motivated or the Rawlsian (or Rawlsian-like) "public conception of justice" approach in Alan Brudner's Constitutional Goods (2004). Brudner's approach, Hegelian in inspiration, is based in large measure on the idea of "mutual recognition on NON-SUBSTITUTABLE worth between persons IN LOVE who have demonstrated fixity of purpose freed from the mutability of passion." The central question here becomes whether or not homosexual love is "open to the good of marriage." The common law view supports the heterosexual restriction on marriage with a premise claiming--or assuming--the significance of the connection between marriage and the rearing of offspring. This of course ignores the conspicuous fact that "many heterosexual couples do not procreate and that many homosexual couples raise adopted or artificially conceived children." Those adhering to a medieval teleology of sex wherein the natural order exists independently of human agency will not be persuaded by arguments that proceed in this manner. As Brudner explains Hegel's revision of that teleological approach,

"the end of human sexuality is not offspring [as such] but the CHILD. The parents are already united by love and moral connection, the outward representation of which is the child whom, as Hegel says, the parents love 'as their love' and whom they raise to freedom not by animal instinct but by a duty united with inclination to fulfil their marriage as a moral connection. [....] It is enough that the child is theirs. This is no doubt why inability to procreate is neither a bar to marriage nor a ground for annulment. [....] Accordingly, the good of marriage is open to homosexual couples."

As Brudner further explains, there is no contradiction or slippery slope here, "because the good of human sexuality to whose cultivation citizens of a liberal state are entitled is not closed to non-procreative sexual acts, though it is to acts of bestiality, incest, and prostitution, as well as to the practice of polygamy."

Posted by: Patrick S. O'Donnell | Aug 30, 2011 1:21:50 PM

Just as a rose by any other name is still a rose, you can't change the essence of Marriage.

Posted by: Nancy D. | Aug 30, 2011 1:30:13 PM

But there are several plausible definitions or conceptions of what constitutes the "essence" of marriage (assuming there is such a thing).

Posted by: Patrick S. O'Donnell | Aug 30, 2011 1:40:04 PM

Unity, which is an essential element of Marriage, depends upon the inherent complementary nature of the couple.

Posted by: Nancy D. | Aug 30, 2011 3:42:52 PM

It is not inevitable. That is a tactic designed to end the opposition. Do we REALLY need to debate gay "marriage" again and again and again...?

Posted by: Fr. J | Aug 30, 2011 4:07:27 PM

I agree with Patrick O'Donnell and Brudner that to accept artificail contraception is to accept same sex marriage. The reason for this is that artificial contraception "homosexualizes" heterosexual sex by rendering it sterile. In principle, contracepted heterosexual sex is no different from homosexual sexual acts. Neither type of sex is procreative.

The Church has always understood all this and that is why she is so steadfastly opposed to artificial contraception. Humanae Vitae looks more and more deeply prophetic with every passing year.

Whether same sex marriage is adopted by legislatures or imposed by court fiat, it will suffer the same fate as legalized abortion: it will remain divisive and never gain the universal acceptance its advocates hope for. If the history of legalized abortion teaches us anything, it is that a lie cannot live as the truth.

Posted by: Dan | Aug 30, 2011 4:14:31 PM

I found this interesting and it has been generating a lot of debate.


Posted by: Fr. J | Aug 30, 2011 6:02:13 PM

Fr. J,

The article you link to reminded me of a famous old response from Abigail van Buren:

Dear Abby:

About four months ago, the house across the street was sold to a "father and son"---or so we thought.

We later learned it was an older man about 50 and a young fellow about 24.

This was a respectable neighborhood before this "odd couple" moved in. They have all sorts of strange looking company. Men who look like women and women who look like men, blacks, whites, Indians, and yesterday I even saw two nuns go in there.

They must be running some kind of business or a club. There are motorcycles, expensive sports cars, and even bicycles parked in front and on the lawn. They keep their shades drawn so you can't see what going on inside but they must be up to no good, or why the secrecy?

We called the police department and they asked if we wanted to press charges! They said unless the neighbors were breaking some law there was nothing they could do.

Abby, these weirdos are wrecking our property values! How can we improve the quality of this once-respected neighborhood?--- UP IN ARMS

Dear UP: You could move.

Posted by: David Nickol | Aug 30, 2011 6:20:04 PM

Dear Abby,

Please stay away from my children if you are unable to discriminate between appropriate and inappropriate sexual behavior.

Posted by: Nancy D. | Aug 30, 2011 7:09:39 PM


UP IN ARMS mentioned no inappropriate sexual behavior.

Posted by: David Nickol | Aug 31, 2011 8:03:58 AM

David, I suspect we will be forced to move. Perhaps to a nice camp out west equipped with the latest shower facilities. As one commenter said, "Remember. Tolerance is not enough. You. MUST. Approve. And you MUST force your daughter to approve as well." Read some of the comments from homosexuals to her post if you think I am exaggerating.

Posted by: Fr. J | Aug 31, 2011 10:38:46 AM

It is important to note that our Founding Fathers stated, unanimously, that our unalienable Rights are to be protected and secured and unlike inalienable rights, even if one consented to give up their unalienable Rights, they couldn't, because our unalienable Rights come from our Creator. One may consent to deny the equality of the inherent Dignity of every human individual, but that does not change the fact that our unalienable Right to be treated with Dignity and respect must still be secured and protected.

David, to be clear, I stated, IF you are unable to discriminate between appropriate and inappropriate sexual behavior...least we forget that the argument against SSM is grounded in our refusal to condone sexual behavior that demeans our inherent Dignity as human persons, and has nothing to do with someone's Race or ethnicity.

Posted by: Nancy D. | Aug 31, 2011 12:45:13 PM

Fr. J,
Your logic is impeccable - a series of rude comments on the internet is good evidence that conservative Catholics will soon be shipped off to concentration camps. Do you think that you all will be transported in black helicopters, or will those darn gays paint them pink (or worse, glitter!) first?

Posted by: Brennan | Aug 31, 2011 2:33:07 PM

Fr. J,
Your logic is impeccable - a series of rude comments on the internet is good evidence that conservative Catholics will soon be shipped off to concentration camps. Do you think that you all will be transported in black helicopters, or will those darn gays paint them pink (or worse, glitter!) first?

Posted by: Brennan | Aug 31, 2011 2:33:07 PM

(Apologies for the double posting!)

Posted by: Brennan | Aug 31, 2011 4:14:24 PM

Brennan, I do have a certain antipathy toward pink. But I would argue that in the end this is an ideological issue not a legal one. Homosexuals are looking for legal ways to get their way, but that is beside the point. Legal theory is just an instrument of the ideology. They are never going to change Church doctrine or my mind. Even if we won every legal battle they would simply ignore it. In the end one side will win and the other will lose. If my side loses then not much will change for them except that they can cancel the weddings and kids won't have to learn about sodomy in kindergarten. But if they win how will they shut people like me, and the Church, up? All I need do is look at where they have begun to win and see what my fate will be. Mark Shea said, "Remember. Tolerance is not enough. You. MUST. Approve. And you MUST force your daughter to approve as well." Look at this site, every other day we get a post about gay "marriage." Are there no other issues of interest out there?

Posted by: Fr. J | Aug 31, 2011 4:30:06 PM

That should read "if my side wins..."

Posted by: Fr. J | Aug 31, 2011 5:36:48 PM

J - "But if they win how will they shut people like me, and the Church, up? All I need do is look at where they have begun to win and see what my fate will be."

Scary. And what, precisely, do you think your fate will be based on the treatment of conservative Catholics in, e.g., Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont, Argentina, Belgium, Canada, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain, and Sweden? (According to http://en.wikipedia.org/wiki/Same-sex_marriage.)

If specifics are difficult to come up with, maybe we could use the oppression that Orthodox Jews no doubt experience in a society that grants a retail license to Red Lobster's to get a comparative evaluation of the awfulness of your fate. Will your suffering be less than, greater than, or about the same as that level of oppression?

Also, what the heck does it prove to quote Mark Shea, an opponent of gay marriage, to the effect that approval, not just toleration, will be "forced"?

Posted by: Brennan | Aug 31, 2011 6:05:39 PM

Brennan, in Canada a bishop was hauled before a "human rights" court for expressing our beliefs. They only dropped the charges because he called their bluff. I posted before about a Christian in Georgia who was denied a degree in social work because of her beliefs about homosexuality. Do I need to post these things every time? Just today there was an article about forcing the Catholic Church to pay for insurance that includes contraception and abortificaents. Wherever the gay agenda becomes law Christians become second class citizens and lose their right to express their faith. California this year is implementing forced indoctrination of school children about homosexuality with no opt out for parents. I do not think homosexual "marriage" is inevitable, but I do think the conflict is inevitable. Mark Shea voiced what many of us believe. Homosexuals don't want tolerance. They want acceptance and the silencing of any opposition by any means necessary.

Posted by: Fr. J | Sep 1, 2011 10:57:17 AM

To be clear, what SOME men and women with a homosexual inclination want is to declare that their sexual inclination is a person, rather than a disordered sexual inclination, in order that it may appear as if those of us who refuse to condone homosexual sexual acts, or any sexual act that demeans the inherent dignity of the human person, are discriminating against a person rather than demeaning sexual acts and demeaning sexual relationships. It is for this reason that SOME men and women insist that they be identified according to their sexual inclinations which sexually objectifies the human person as a mere object of sexual attraction. The Constitution does not provide for the recognition of the equality of sexual inclinations because there are many types of disordered sexual inclinations, nor does the State have the authority to mandate the affirmation and condoning of demeaning sexual acts and demeaning sexual relationships of any nature.

Posted by: Nancy D. | Sep 1, 2011 12:39:58 PM

The only response that is grounded in authentic Love to help those who are suffering with a disordered sexual inclination of any nature, is to nurture and guide them so that they may overcome their wounds and learn to develop healthy and Holy relationships and friendships. The fact that Dan Savage, who's Bio can be founded on Wiki, is the founder of the "It Gets Better" program that claims to help those who are suffering with a homosexual inclination, is very illuminating.

Posted by: Nancy D. | Sep 1, 2011 1:02:17 PM

J - So that's your evidence that justifies your suggestion that conservative Catholics will soon be shipped off to concentration camps? Don't you think that it's time to admit that your suggestion was foolishly hyperbolic? Your suggestion is especially offensive since it ignores the historical fact that there has been an enormous amount of violence caused by religious beliefs as to the immorality of homosexuality and effectively ALL of that violence - including god knows how many murders - was perpetrated by anti-gay religious believers. It oftens seems to me that anti-gay religious folks really fear that they will be done to in the future just as they (or their co-religionists) have done to others in the past - fortunately, I see no evidence that that outcome is remotely likely.

I don't know enough about the details of the individual cases you cite (without links) to debate them, but most of them seem to be fairly isolated. Lots of religions have beliefs that conflict with government regulations or educational policies, but they are all mutually inconsistent, so who decides which religion to kowtow to? Catholics support most publicly provided healthcare, but some Christian Scientists apparently believe that that (real) science-based medicine interferes with their right to practice their religion. Some Amish have religious reasons for not liking putting reflectors on their buggies, but they're required to nonetheless. Warren Jeffs of the Fundamentalist Church of Jesus Christ of Latter-Day Saints is going to jail for putting his religous beliefs into action, but I'm sure that you have no problem with that outcome. A Muslim man will have his testimony weighed equally against a woman's testimony in a US court, despite the religious belief that god doesn't approve of such equality. Other religions don't like marriages outside their faith or ethnic group, yet the states continue to solemnize them. If you have a better suggestion for how to reconcile the diversity of religious beliefs with government policies than we are currently using, let's hear it. (And "everybody should be a conservative Catholic" doesn't count as a serious suggestion, by the way.)

Posted by: Brennan | Sep 1, 2011 1:04:24 PM

Brennan, I read daily about Christians in the West who suffer discrimination and persecution and occasionally death because they do not approve of homosexuality. I am talking the US and Western Europe. My issue is that the homosexual agenda leads to the ending of religious liberty. So called hate crime laws are often the culprit. I really don't have to work too hard to imagine.


Posted by: Fr. J | Sep 1, 2011 7:52:32 PM

"My issue is that the homosexual agenda leads to the ending of religious liberty." I get that. But I hope you realize that, when pressed, you have managed to provide exactly zilch in the way of evidence or rational argument to support that conclusion.

Posted by: Brennan | Sep 1, 2011 10:03:04 PM

The sins of the flesh destroy the spirit.

Posted by: Nancy D. | Sep 2, 2011 8:14:06 AM

Brennan, you can read the link which lists just some of the attacks on Christians.

Posted by: Fr. J | Sep 2, 2011 10:37:39 AM

Fr. J, I appreciate the consistency and forthrightness with which you press your views. Since you have often pressed the arguments you make here, the least I could do, it seems to me, is read and follow up on the link you provide above. With respect, I don't think it provides especially persuasive evidence for your argument that support for gay rights is but a prelude to discrimination, persecution, silencing, and worse.

The article you link to cites eight examples of Christians being subjected to questioning, legal warnings, and on, all of them in the United Kingdom. The first case involves a woman who was questioned and warned by police after writing to local council to complain that she was rudely treated while handing out leaflets at a gay rights march (and, not incidentally, to say the march itself should not have been permitted). The matter was not pursued further. In the Telegraph's account of the incident you will find the following paragraph: "Ben Summerskill, chief executive of [the gay rights group] Stonewall, criticised the police's action. 'Clearly her views are pretty offensive, but nevertheless this is disproportionate. I'm glad Norfolk police didn't take it any further,' he said." The first comment on the story about the incident on PinkNews, which bills itself as "Europe's Largest Gay News Service," reads: "She will never have a more bitter opponent than me; I have contempt for her opinions, but let me make this clear: Yes, she should sue, she has my total support. This is utterly ridiculous. . . . The council has denied everyone the right, including this woman, to change their opinions. Who are they to decide what is free speech? Norwich council should consider twinning itself with Tehran."

I've looked at some but not all of the other seven stories. Most of them are similar: someone complained about another person's words or conduct, the police investigated, and nothing further happened. In some of these or similar cases, damages were awarded against the police. Of the eight anecdotes, two proceeded as far as the laying of charges; the charges were dropped in both cases.

The article you link to, in something called the "Canada Free Press," goes on to argue that "the trend of illiberal laws" will "now blow unrestrained through the United States" because of the passage of the Matthew Shepard/James Byrd Hate Crime Prevention Act, which adds sexual orientation to the list of bases for charges under the federal hate crime statute. That statute requires actual or attempted bodily injury and applies only in limited circumstances, and contains various provisions making clear that it does not "allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs" and should not be read in derogation of the First Amendment (a redundant point, of course). The article you link to asserts that "the Matthew Shepard Act will make ridiculing Christians and their beliefs an acceptable form of bigotry. Gluttonous, lecherous bigots the likes of Jerrold Nadler and Barney Frank will garner the power to silence anyone who dares speak out for religious reasons against the practice of homosexuality, and they will do so brazenly without accountability, and in defiance of the people’s will." It does not offer any argument in support of its assertion. It does not offer any anecdotes supporting the position that Christians in the West have suffered "death" at anyone's hands "because they do not approve of homosexuality." I am not aware of any such incidents, although that does not mean they've never happened. Conversely, there have been many cases in which gays have been murdered because of their sexuality. Given the relative numbers of each group, it would appear that the incidence of the latter crime is far greater than the frequency of the former. I am sure, however, that you and I agree that both crimes are inexcusable.

I am sure you and I would agree on the importance of freedom of expression and association, and I deplore the English police abuses described above. So, for that matter, do many supporters of gay rights. Nevertheless, your broader concerns about the inevitability that gay rights leads to a suppression of opinion are, as I have said before, poorly supported, and the article you link to is no exception.

Posted by: Paul Horwitz | Sep 2, 2011 4:01:41 PM

Paul, I am not claiming that we have reached the nadir yet. But you can see the trend. It is impossible to deny that those on my side face legal harassment and discrimination based on our views. Is that going to get better if homosexuals get special rights? I doubt it. Look, I can google this stuff up all day. It's easy, try it. But the fact is that homosexuals are trying to shut down speech and beliefs they don't like. Mary Stackowicz was killed by a homosexual because she voiced disapproval of his lifestyle. Why has no one heard of her? Homosexuals use Matthew Shepherd all the time as a martyr, even though one of his murderers was bisexual. After Prop 8 in California Christians were attacked and arson was committed. In DC I have been verbally insulted and had homosexuals engage in lewd behavior right in front of me. In Europe 2 lesbians entered a church where I was at Mass, walked to the front, and engaged in lewd behavior right in front of the congregation (including children). I'll be honest, I simply don't believe them when they say that my rights won't be affected. I think they are lying to me so that I will relax and not oppose them until it is too late. You may say I am wrong, but when I daily read of some new assault on religious liberty I won't take the chance. Right now we are being told we have to supply health insurance that includes contraception including abortifaecent types and our conscience doesn't count. So I don't buy it when I am told that my rights will be respected when I can see they already are not. Call me the canary in the mine. Thanks for your response.




Posted by: Fr. J | Sep 2, 2011 5:15:01 PM

Professor Horwitz, with all due respect, there is no inherent Right to engage in demeaning sexual behavior because such behavior is a violation of the inherent Dignity of the human person, so what should we call the use of coercion on the part of the State or any person in regards to the condoning of engaging in or the affirmation of sexual acts or sexual relationships, that do not respect the inherent Dignity of the human person?

Posted by: Nancy D. | Sep 3, 2011 11:11:52 AM

"Call me the canary in the mine." You mean that our civil liberties are safe so long as there are irrational, anti-gay bigots on the internet? Well, our civil liberties are pretty darn safe then!

Posted by: Brennan | Sep 3, 2011 3:44:16 PM

Brennan, you make my point. Are my civil liberties safe when there are irrational pro-gay bigots not just on the internet, but in the police/government/courts. So my civil liberties are pretty darn in danger.

Posted by: Fr. J | Sep 3, 2011 4:26:36 PM

Fr. J: I should preface this by saying that I disclaim any interest in trying to change your views on gay rights and related issues, or on the potential speech-related abuses of human rights or civil rights laws; I assume we agree on many aspects of the latter issue and few aspects of the former issue. My only interest is in the following: encouraging you to do your best (which is all any of us can do, of course, myself included) to make sure your arguments are consistent and well-warranted and that they don't ignore or outrun the available facts. I am certainly not accusing you of bigotry. But I think it is true for all of us that a position based on distrust of others is warranted only as long as it is truly reflective of the available facts and, even then, takes differences within groups into account; pure distrust based on someone's group status strikes me as generally being either unwarranted or too insubstantial to use as the basis for drawing strong conclusions. I proceed, as always, from the assumption that you are acting in good faith and that dialogue is therefore potentially useful and productive.

From that perspective, I think the conclusions and presumptions you draw are simply too strong and absolutely outrun the available facts. It is surely the case that some gay rights activists believe more strongly in enforcement of gay rights laws than they believe in religious exemptions, and that others are strong supporters of human rights or hate speech laws that can be broadly and censoriously enforced. It is equally and demonstrably the case that many gay rights supporters and activists are strong civil libertarians who believe, at a minimum, in strong protection for the speech of their opponents. It is certainly true that within public dialogue, many people vociferously and viciously argue against speech and beliefs that they disagree with. Personally, I don't care to engage with people who actually fall into the category of irrational bigots of any sort; of course some of those folks are supporters of gay rights, and some of them are opponents of gay rights -- along with supporters and opponents of the Church, of racial equality, of the present or past presidents, and so on. Incivility is a part of the free speech regime you support, and it seems to attract many people of many different views. As long as an "irrational bigot," whether he is pro- or anti-gay rights, is engaging in private incivility and "silencing" and not using the state, it is something we must generally live with. The fact that there are vociferous and vicious opponents of gay rights out there does not, I think, entitle me to draw general conclusions about whether these individuals would necessarily support the use of the law in speech-suppressive ways; mutatis mutandum for supporters of gay rights. In my view, neither you nor Brennan are entitled to draw *strong* conclusions about your respective opponents' views about the First Amendment because one or both of you, or others in your experience, have engaged in what the other person concludes is uncivil or bigoted speech. If you want to draw mild conclusions, be my guest; but strong conclusions are not warranted by that kind of evidence.

I should be clear that, as long as human nature is what it is, of course you will have no problem finding examples of people who attempt to enforce the law on their side of a debate in a way that threatens speech rights, and of people who commit crimes against those they dislike. That will be true of the pro-gay-rights crowd and of the opponents of gay rights. But the plural of anecdote, as the saying goes, is not data. I abhor the murder of Mary Stachowicz, just as I'm sure you oppose the murder of Matthew Shepard. The absolute number of murders based on either homosexuality or opposition to gay rights or homosexuality is thankfully low in this country. But I continue to point out that as a matter of demonstrable numbers, the relative incidence of violent crimes against gays and lesbians vastly outpaces the incidence of violent crimes based on one's opposition to homosexuality. I should think this is a competition that neither side wishes to win. My point is simply that you have no real warrant for pointing to this or any other incidents as a serious indication that gays and lesbians as a group ultimately threaten a regime of physical violence against their opponents.

My broader point, I say again, is not to urge you to change your underlying policy views. It's to encourage warranted and consistent views. You end up saying, in effect, that gays and lesbians as a group must be lying to you in order to lull you into complacency. That is not a warranted view, especially in light of the many gay supporters of civil liberties, many of whom condemn the use of the law to silence religious or other opponents of gay rights. To ignore this evidence is to come close to saying that you are going to make a broad assumption about every individual member of a group regardless of the whole of the evidence and regardless of apparent differences within the group. I would find that an unfortunate thing to do with respect to any group.

Of course, you could simply argue that where civil liberties are concerned, the best thing to do is to adopt a general strategy of distrust of others, regardless of group identity. That's fine as far as it goes, but I should think that you would then want to be consistent in that position. The history of, say, suppression of pro-Catholic speech by Protestants in this country, or suppression of offensive but non-dangerous political speech by patriots, or suppression of pro-civil-rights speech by Southern politicians, is much vaster than that of suppression of speech by gay rights activists or governments. So perhaps you might consistently conclude that all Protestants, Southerners, and patriots should be treated with presumptive distrust by lovers of free speech, and that those within those groups who say they think differently should be treated as if they are lying. Many would find that position unpalatable, but it is possible that taking that view would lend greater integrity and coherence to your overall position.

Sorry for taking up so much space, Rob. It's your blog, not mine, and I'm not trying to run some campaign against Fr. J. Hopefully he does not feel I have been unfair or uncivil toward him. He is a frequent poster here, and I have taken such pains because I think he is worth engaging with in a civil but detailed way -- not on his position on gay rights, but on the atmospherics that surround his position -- although I suspect I've said all I have to say.

Posted by: Paul Horwitz | Sep 3, 2011 5:08:48 PM

Nancy, I confess that I could better answer your question if I understood it better. If you are asking whether I think state or private power should be used to coerce others to condone or affirm other people's actions, or to punish those who through speech or expressive conduct voice their opposition to other people's actions, the answer is no, Insofar as the state is concerned, I believe the First Amendment does not permit that kind of coercion, and I think it is right not to permit it. As far as private action is concerned, I believe people are free to urge others to change their beliefs or conduct, even in uncivil language, but I do not believe they are entitled to use actual coercion to do so. But for me these positions have little if anything to do with the question of whether the underlying conduct respects the inherent dignity of the human person. In broad terms, I do not believe the state or private individuals should be allowed to coerce citizens into stating, affirming, or condoning any belief, regardless of whether that belief is correct or incorrect, moral or immoral.

I wonder if, in return, you would mind being a little clearer about your own position, not on the inherent dignity of the human individual, but on specific legal or private action. To use a paraphrase of your own language, do you believe that "the use of coercion on the part of the State or any person" *is* permissible "in regards to the condoning of engaging in or the affirmation of sexual acts or sexual relationships" that *do* "respect the inherent Dignity of the human person?" That is, where actions or relationships are involved that do respect the inherent dignity of the human person, do you believe that state or private power *can* be used to coerce others into condoning or affirming those actions or relationships? How and when? If your answer is no, on the other hand, then I'm not sure what work the idea of the inherent dignity of the human person is doing in this instance, whatever value it may have elsewhere.

On that note, I should add that I responded to your comment at Prawfsblawg. The gist of my response was that you have often argued on this site for the interpretive authority and value of the inherent equal dignity of the human person, but in my respectful view you haven't said much that is especially concrete about this, and I suspect I'm not the only one who still has practical questions about what you mean. I offered a list of questions there, and I am curious about how you would answer them.

Posted by: Paul Horwitz | Sep 3, 2011 5:28:05 PM

Paul, perhaps you should consider how many times the issue of homosexual rights comes up on this blog. When it does the inclination seems to be that if you oppose special rights for homosexuals then you are a bigot and deserve to be silenced and treated as if you were in the Klan (especially as it is often compared to racial bigotry). Therefore the opposing views are often dismissed out of hand. Now couple that with my own personal experiences with homosexuals, some of whom assure me that my rights will take a back seat. Add to it the violence that followed Prop 8 in California, a court intervention against it by a homosexual judge, and the other incidents that I posted. Then consider the current Obama care rules that require the Catholic Church to provide abortifacient and contraceptive coverage with little option of a conscience clause. I don't think I am outrunning the facts. Are ALL homosexuals involved in a conspiracy? Of course not, but enough seem to be thinking along the same lines. Actually the number one group in the US that faces discrimination is not homosexuals. In 2009 according to the FBI:

48.8 percent of the victims were targeted because of the offender’s bias against a race.
18.9 percent were victimized because of a bias against a religious belief.
17.8 percent were targeted because of a bias against a particular sexual orientation.
13.3 percent were victimized because of a bias against an ethnicity/national origin.
1.2 percent were targeted because of a bias against a disability.

For Racial bias:
71.5 percent were victims because of an offender’s anti-black bias.
16.5 percent were victims because of an anti-white bias.

For religious bias:

71.9 percent were victims because of an offender’s anti-Jewish bias.
8.4 percent were victims because of an anti-Islamic bias.
3.7 percent were victims because of an anti-Catholic bias.
2.7 percent were victims because of an anti-Protestant bias.
0.7 percent were victims because of an anti-Atheist/Agnostic bias.
8.3 percent were victims because of a bias against other religions (anti-other religion).
4.3 percent were victims because of a bias against groups of individuals of varying religions

For sexual-orientation bias:

55.1 percent were victims because of an offender’s anti-male homosexual bias.
26.4 percent were victims because of an anti-homosexual bias.
15.3 percent were victims because of an anti-female homosexual bias.
1.8 percent were victims because of an anti-bisexual bias.
1.4 percent were victims because of an anti-heterosexual bias.

I don't think you are being uncivil to me at all and I am in no way offended. Frankly if the homosexual activists who do post here treated the traditional Catholic view that I espouse with similar civility I doubt the debate would be as heated. I feel that I have been accused of being a bigot for holding the Catholic faith on the issue of homosexuality. That simply makes me look at the incidents where religious liberty has been violated with even greater fear. Thank you for your response.

Posted by: Fr. J | Sep 4, 2011 9:00:48 PM

J - I began commenting thinking that you had just temporarily succumbed to the pleasure of intemperate rhetoric - suggesting that gay folks were going to put Catholics in concentration camps, of all things - but would admit that this was hyperbolic if challenged. I must say, however, that you have convinced me that you are either a bigot or are strangely compelled to imitate one. I think of bigotry as the dogged assertion that a broad group of people share significant negative traits without regard to the actual evidence. You assure us that you know that homosexuals are generally conspiring against the civil rights of other Americans, yet you also admit that you will not believe any assurances to the contrary ("I'll be honest, I simply don't believe them when they say that my rights won't be affected. I think they are lying to me so that I will relax and not oppose them until it is too late. You may say I am wrong, but when I daily read of some new assault on religious liberty I won't take the chance.") The "evidence" you cite is better described as a handful of cherry-picked anecdotes. I would hope you consider changing your mind - it is very unfortunate when people get so stuck in a rut that they insist, despite clear evidence to the contrary, that their political opponents represent existential threat. That's the sort of extremism that, if widely held, can lead to truly tragic social ruptures.

By the way, did you even notice that according to your own FBI statistics, bias crimes against homosexuals are far more frequent than against Catholics and Protestants combined - 17.6% of bias crimes were anti-homosexual, while 1.2% were anti-Catholic or anti-Protestant. If you look at the published rates of violent crimes the disparity is even greater (http://www2.fbi.gov/ucr/hc2009/data/table_04.html) - 224 aggravated assaults against sexual orientation minorities versus 1 aggravated assault against a Catholic or Protestant (even though the latter groups obviously make up much larger shares of the population). How can you cite these statistics and then claim that your group is the one that is actually under threat from a group that is victimized enormously more often?

Posted by: Brennan | Sep 4, 2011 11:56:47 PM

Fr. J, again I appreciate your response. I won't pursue the argument further, except for two things. The first is that I would note a distinction between incivility by homosexuals toward religious individuals, or incivility by religious individuals toward homosexuals, and the use of the law, or the desire to use the law, to suppress the beliefs or speech of individuals on either side. As I said before, the world being what it is, you won't fail to find incivility of this sort on either side (especially on the Internet, the favorite community of the uncivil). And you ought also to distinguish between the use of the law to suppress speech and the use of the law to address the underlying issue of gay rights. It is possible to be an uncivil supporter of gay rights who believes that this incivility should be strictly a matter of non-state opposition, no matter how uncivilly worded, not a matter of state suppression of speech; similarly, it is possible to be an uncivil opponent of gay rights who, for instance, tells gays and lesbians they are going to hell and never ought to be legally recognized, but doesn't believe that speech by supporters of gay rights ought to be suppressed. Similarly, it is possible to argue (and rule) for or against same-sex marriage without believing that its supporters or opponents' speech ought to be legally suppressed. (Thus, I doubt that Judge Walker's opinion on the substantive law is too relevant, and I similarly doubt that a judicial opinion upholding a law forbidding gay marriage should be treated as indicating that judge's willingness to suppress the speech of gay rights activists.) Again, I don't doubt that you have encountered uncivil activists, and whatever their relative numbers I'm sure one can find incivility on both sides. One can also encounter those who *do* believe the courts ought to suppress the speech of their opponents, or who just haven't thought carefully yet about the distinction between public and private action in this area. But it's worth noting that not every instance of even highly uncivil speech is an indication of a deeper desire to suppress the speech of one's opponents. if a gay supporter of gay rights called you a bigot and a bastard and spat in your face, you would have every right to disdain that individual; nevertheless, that does not mean he or she would use the law to suppress your speech (if the law would even let him). Conversely, if a gay rights activist were surrounded by gay rights opponents calling these individuals fags, pederasts, and villains and spitting in *their* faces, that would not mean those opponents necessarily supported the suppression of speech by the state.

Second, I suppose my underlying and greatest regret is the failure to see *any* areas of common cause between some vehement supporters and opponents of gay rights on some issues, particularly those involving freedom of speech and association. When the Christian Legal Society writes in a brief that "[r]eligious groups and gay rights groups share common ground in the need for freedom of association;" when a gay rights group files an amicus brief in the Supreme Court *supporting* the Boy Scouts on similar grounds; and when Dale Carpenter, a strong supporter of gay rights, writes an article arguing that "freedom of expressive association has been especially valuable to gay Americans, who have suffered greatly when it is not respected," then it seems to me there are common causes to be explored and encouraged, not disdained. I think I understand why you don't take this approach, but I can still harbor a sense of loss and regret that you (or people on the other side) don't.

Posted by: Paul Horwitz | Sep 5, 2011 9:04:32 AM

Paul, I see a steady inclination to subordinate freedom of speech and religion to the special rights of homosexuals. It is more then just incivility. In other nations, and sometimes here, we see that where homosexuals gain the power they ask for that religion takes the back seat rather quickly. You bring up the Boy Scouts and other such groups and the right of free association. It is precisely there where we can see that discrimination begins to occur. When a college Christian group is taken to court for requiring that members adhere to Christianity, then no number of amicus briefs can deny the fact that a suit was filed in the first place. It remains my contention that many homosexuals demand more then mere tolerance, but rather total acceptance and the silencing of those who dare disagree. If I am wrong then I challenge those who are homosexual or who support special rights for homosexuals to prove it. Let me go a few years without seeing any actions against religious believers based on their opposition to gay rights. No more law suits, no more hate crimes attacks on freedom of speech and religion, no more kangaroo court human rights commission trials, no more denial of credentials to teachers or therapists who don't toe the party line etc. That would encourage me to at least reconsider my fears. I do thank you for your civil and decent response. It is appreciated.

Posted by: Fr. J | Sep 5, 2011 1:00:14 PM

I wasn't going to post again, but I read this just today:


Christian churches must be banned from performing any marriages if they refuse to hold civil partnerships ceremonies for gay couples, a Conservative MP has demanded.

Mike Weatherley has urged the Prime Minister to show no toleration to churches which turn away gays and lesbians who seek to marry in their premises.

The Hove and Portslade MP has in turn been criticised by Bishop Kieran Conry of Arundel and Brighton for “over-stepping the mark”.

In a letter to David Cameron the south coast MP had said that the proposed Coalition amendment to the 2010 Equality Act to allow religious bodies or individual places of worship to register the controversial ceremonies would remain “unfair” as long as heterosexuals could marry in the churches of their choice.

The law must instead be changed to compel churches to register civil partnerships, said Mr Weatherley, whose constituency near Brighton which has one of the highest numbers of gay couples in civil partnerships in the country.

He told Mr Cameron to follow a precedent he suggested had been set by laws compelling 11 Catholic adoption agencies to assess gay couples as potential adopters and foster parents, although most of them have either since closed or left the control of the church.

Mr Weatherley said that the alternative would be to surrender to a “messy compromise” in which gays would remain the victims of inequality.

“I am becoming increasingly concerned about the inequality which exists between the unions of same-sex couples and those of opposite-sex couples in this country,” he said in his letter.

“As long as religious groups can refuse to preside over ceremonies for same-sex couples, there will be inequality,” he said.

“Such behaviour is not be tolerated in other areas, such as adoption, after all.”

Mr Weatherley described the 2004 Civil Partnership Act, which permitted legal recognition of same-sex unions, as an “uneasy truce” between campaigners for equality and people who sought to uphold the religious significance of marriage.

He added that until “we untangle” marriage from religion “we will struggle to find a fair arrangement”

Posted by: Fr. J | Sep 8, 2011 12:42:30 PM