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, December 29, 2015

Same-Sex Marriage, Religious Liberty, and the Questions That Lie Ahead

A few days before Christmas, the National Catholic Reporter published an article (available here) by Angela Cave, a reporter for Catholic News Service. The article addresses the challenges – both of the present day and those that loom on the horizon – confronting religious communities and organizations who oppose same-sex marriage. I was interviewed for this piece as was Villanova political scientist Daniel Mark.

In the article, each of us discusses how the Obergefell decision marks not the end of the same-sex marriage debate, but the beginning of a new chapter in which supporters of same-sex marriage will seek to make their opponents submit to the new order. Religious believers and institutions are among the most conspicuous dissenters who will be targeted in this effort to change the culture. That, after all, is the goal of this movement – not formal “equality,” but the affirmation of sexual identity. And where that affirmation is not voluntary, LBGT culture-warriors will cheerfully seek to employ both social exclusion and governmental coercion to achieve their desired ends. Thus, Catholics schools and other institutions that remain faithful to Church teaching will have their employment and employee benefit policies challenged, together with their tax-exempt status, to mention only the most obvious examples. Others are discussed in the article.

What does not appear in the article are two points I made in the interview. (I add this not by way of criticism, mindful of the constraints that space and editorial decisions necessarily impose). First, I noted that these challenges to religious liberty are not taking place in isolation. Indeed, the Obama administration’s efforts to require religious institutions and companies to provide contraceptives, sterilization procedures, and abortifacient drugs through the HHS mandate – to appropriate these organizations for the government’s own purposes – are taking place at the same time. Second, I noted that it is plainly the case that LGBT individuals have been subject to unjust discrimination and hateful treatment in many instances throughout history, and that this was contrary to Church teaching and the spirit of the Gospel. At the same time, I noted that allowing religious institutions to follow their religious consciences and refrain from equating a same-sex union with traditional, conjugal marriage between one man and one woman was neither hateful nor unjust.

A third point, which I did not offer in the interview, but which I will now share is the following. Swimming against the cultural tide – opposing the cultural normativity of same-sex marriage – takes an enormous amount of courage. This is also true of religious leaders, including the Catholic bishops in the United States. There is enormous pressure for local ordinaries to change their policies, to “get with the times,” to employ individuals in parochial schools and social service organizations and diocesan staff offices who are civilly married to a person of the same sex, and to offer that couple the same benefits as a married man and woman. So far the U.S. bishops have shown enormous resilience in upholding the Church’s teaching with integrity. They have resisted the urge to change.

But their unanimity and resilience will be tested. Undoubtedly, some bishops favor such a change – whether out of desire to appear “pastoral,” “welcoming,” and “inclusive,” or out of a genuine theological conviction that the Church’s teaching on sexuality needs to be “updated.” No doubt some bishops will be inclined to do what is easy and popular (which they and their allies will see as courageous and prophetic) – defending their actions as simple compliance with the positive law – a compliance that is necessary in a pluralistic society such as ours. Of course the bishops did not hide behind the excuse of “legality” in the days and years following the Court’s ruling in Roe v. Wade. Of course pluralism is not the goal of the current challenges to religious conscience, but legal and cultural hegemony.

When put to the test – a test that is surely coming – let us hope and pray that the members of the American episcopacy will look to the example of St. John Fisher and not that of Thomas Cranmer.


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