Carson Holloway

Justice Sotomayor and the path to polygamy

Carson Holloway
By Carson Holloway
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April 22, 2013 (PublicDiscourse) - Opponents of same-sex marriage resist it because it amounts to redefining marriage, but also because it will invite future redefinitions. If we embrace same-sex marriage, they argue, society will have surrendered any reasonable grounds on which to continue forbidding polygamy, for example.

In truth, proponents of same-sex marriage have never offered a very good response to this concern. This problem was highlighted at the Supreme Court last month in oral argument over California’s Proposition 8, the state constitutional amendment that defines marriage as a union of a man and a woman.

Surprisingly, the polygamy problem that same-sex marriage presents was raised by an Obama appointee, the liberal Justice Sonia Sotomayor. Sotomayor interrupted the presentation of anti-Prop 8 litigator Theodore Olson to pose the following question: If marriage is a fundamental right in the way proponents of same-sex marriage contend, “what state restrictions could ever exist,” for example, “with respect to the number of people . . . that could get married?”

In response, Olson tried to set up a clear distinction between same-sex marriage and polygamy, suggesting that the kinds of governmental interests that justify a prohibition of polygamy are irrelevant in the case of same-sex marriage.

The Court has said, he contended, that polygamy raises “questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody” and therefore “is an entirely different thing” than same-sex marriage. Moreover, Olson argued, when a “state prohibits polygamy, it’s prohibiting conduct,” but if “it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.”

Justice Sotomayor’s concerns about the possibility of a path from same-sex marriage to polygamy may arise from the fact that there is already a case in federal court challenging Utah’s anti-bigamy law as unconstitutional.  In any event, she should be just as concerned about this question after oral argument as she was before it, because none of Olson’s distinctions can reasonably justify a prohibition on polygamy if the Court finds a constitutional right to same-sex marriage. To see why, it’s first useful to note a crucial distinction that Olson overlooked, as well as the most famous Supreme Court case regarding polygamy, which he failed to mention.

Olson’s words to the Court suggest that the state somehow “forbids” same-sex marriage today just as it “forbids” polygamy. This is not true, as Adam MacLeod noted on Public Discourse earlier this week. Under current law and Supreme Court precedent, no state has constitutional authority to punish anyone for entering into a same-sex relationship. No state in fact “prohibits” same-sex marriage. If any persons wish to enter into such a relationship and call it a marriage, they are perfectly free to do so.

The real issue, the real complaint in the case that Olson represents, is that the state simply refuses to bestow on same-sex unions the same recognition that it gives to heterosexual marriages. In stark contrast, the law in many American jurisdictions not only refuses to recognize polygamous marriages; it actively punishes them. Enter into a same-sex marriage and the government will simply ignore you. Enter into a polygamous marriage and the law permits the government to prosecute you for a crime.

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Unlike the distinctions Olson raised, this one is real, and it positively undermines his assurance that we can have same-sex marriage while still banning polygamy. Common sense makes it hard to see how this could be done. In Olson’s view, the state may not officially prefer heterosexual marriage by a policy so mild that it does nothing other than to leave same-sex couples alone while declining to formally recognize their unions. By what reasoning, then, could it have a right to prefer some definition of marriage by actually punishing those who choose to disregard it?

Moreover, in his summary of what the Supreme Court has “said” about polygamy, Olson omitted to mention the single most famous case dealing with this question, Reynolds v. United States (1879). In that case the Court upheld the federal law forbidding polygamy in the territories of the United States, and declined to find that the free exercise clause immunizes those who practice it for religious reasons.

Most of the Court’s argument is dedicated to the original meaning of the Constitution’s religion clauses, but also noteworthy is its passing comment on the basis of the law in question, a basis that the Court at that time apparently found unquestionably legitimate: “Polygamy has always been odious among the northern and western nations of Europe . . . and from the earliest history of England polygamy has been treated as an offense against society.”

Reynolds has never been overturned and indeed has been cited as an authority by the modern Supreme Court. In it the Court tells us straightforwardly the basis of laws prohibiting polygamy: moral disapproval of the practice. This raises a serious problem for the defenders of same-sex marriage.

A number of the Court’s precedents defending a “right of privacy” have already strongly undermined the idea that the majority’s moral convictions are a sufficient basis for law. If the Court finds a right to same-sex marriage, it will practically dismantle the whole concept of morals legislation. But if moral preference for heterosexual marriage cannot be a reasonable basis on which to afford it a formal recognition denied to other unions, then how can moral disapproval be a reasonable ground on which to forbid and punish polygamy?

Let us turn now from the distinctions Olson overlooked to the ones he emphasized. In the first place, Olson contended that polygamy raises serious concerns about “exploitation,” “abuse,” and “patriarchy” that aren’t relevant to same-sex marriage. Presumably he was referring to the “abuse” and “exploitation” of the children and perhaps wives of plural marriages. Yet, under the constitutional theory of marriage Olson has tried to sell, none of these considerations would be sufficient to forbid polygamy. Olson insists that marriage is a fundamental right. Standard Supreme Court doctrine holds that fundamental rights can only be infringed to defend a “compelling state interest” and that the regulations made to protect that interest must be drawn as narrowly as possible.

Everyone would concede that prevention of abuse and exploitation of children and wives is a compelling state interest. On the other hand, nobody would contend that such abuse and exploitation is the very essence of polygamy. After all, abuse and exploitation can be found in monogamous marriages, too. The most one could say is that these problems are dangers to which polygamous unions are more or less prone. In any case, under the “fundamental rights” doctrine on which Olson relies, the least restrictive means to remedy such dangers would be to recur to already existing laws punishing such abuse and exploitation, rather than going so far as to ban polygamy altogether.

Olson may also have been hinting that the state could reasonably fear that abuse and exploitation of children is more likely to arise in families where the children are not related by blood to all of their parents. This is a reasonable concern, but it could be raised just as easily in relation to same-sex marriages, where at best, only one parent can be biologically related to each child.

Similar problems arise if we consider Olson’s invocation of “patriarchy” as a justification for forbidding polygamy. We might ask: What’s wrong with patriarchy?

The most straightforward answer to this question that Olson could muster is that patriarchy is morally offensive in a liberal, egalitarian society. But, as we have seen, the case for a right to same-sex marriage depends on the Court’s willingness to expel moral sentiments as a basis for law. Or is the Court to hold that the things that offend traditional moral sensibilities are impermissible as bases for law while the things that offend progressive moral sensibilities are fine? This would be to reduce constitutional jurisprudence to naked partisanship and ideology.

Be that as it may, there is no necessary connection between patriarchy and polygamy, at least under the constitutional and legal regime now prevailing. Under the modern interpretation of the equal protection clause, any “right” to enter plural marriages would be held equally by men and women. It would not be a patriarchal right of some men to have multiple wives, but a right of both men and women to have multiple spouses of their own choosing.

Moreover, given the ease of access to divorce, there would be no serious reason to fear that women who entered plural marriages would be unable to escape from them if they found them unsatisfactory. And again, if the creation of a “right” to polygamy opened a social space in which some patriarchal subordination of women could develop, this problem could be corrected by legal remedies falling far short of banning polygamy entirely.

Olson also suggested that a ban on polygamy is made reasonable by certain technical and legal challenges that it raises, challenges involving “taxes,” “inheritance,” and “child custody.” Again, the distinction here between same-sex marriage and polygamy is underwhelming. Because same-sex marriages are prone, like polygamous marriages, to have children who are not biologically related to all of their parents, they are also prone to complications involving inheritance and child custody.

Perhaps by referring to “taxes” Olson meant to suggest that polygamous unions have a potential to produce enormous families and thus to drain federal revenues by entitling single families to hitherto unheard of numbers of tax deductions and credits. This fear, however, assumes that the standard polygamous union will feature one husband with many wives. This may not turn out to be the case. At any rate, as noted before, if marriage is a fundamental right in the way Olson’s words suggest, such problems would have to be remedied by the least-restrictive means, and mere reform of the tax provisions is far less restrictive than an outright ban on such marriages. (For example, dividing spousal benefits by the number of spouses.)

Finally, Olson argues that laws forbidding polygamy target behavior, while laws refusing to recognize same-sex marriage prohibit the exercise of a right based on people’s status. This distinction is entirely spurious. If laws against polygamy can be understood as targeting behavior, the same can just as easily be said about laws defining marriage as a union of a man and a woman.

Such laws refuse to bestow official recognition on a certain behavior—entering into a same-sex relationship—in which the state believes it has no vital interest. Conversely, if laws defining marriage as a union of a man and a woman can be viewed as singling out a specific class of people—gays—then anti-polygamy laws can equally be presented in the same sinister light: They refuse the right to marry to people of a certain status—polys—those who desire to marry multiple people.

As these reflections suggest, there is very good reason indeed to believe that the declaration of a “right” to same-sex marriage will set us on the path to polygamy. To allay these concerns, the proponents of same-sex marriage sometimes respond that they are only seeking what married heterosexuals already have: access to marriage understood as a union of two people. But this reassurance utterly misses the point: All the arguments by which they seek that end can easily be turned to the purposes of those who might next seek polygamy.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press). This article reprinted with permission from The Public Discourse.

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Are you praying for the upcoming Synod on the Family? You should be, and here’s why

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By John-Henry Westen

Catholics, and all Christians who value family values, should be praying earnestly for the Catholic Church as a struggle over critical family issues is coming to a head in the run-up to the Extraordinary Synod on the Family, which takes place October 5-19. 

Augmenting the concerns is the fact that some of the cardinals closest to Pope Francis himself are increasingly in public disagreement over crucial matters related to faith and family. For some, the concerns reach right to the pope himself.

While Synod preparations have been going on for a year, Sunday’s weddings of 20 couples in St. Peter’s Basilica by Pope Francis presented a figurative, and perhaps foreboding launch.

In a press release prior to the ceremony, the Rome diocese inexplicably went out of its way to highlight the fact that some of couples the pope was going to marry were cohabiting. "Those who will get married Sunday are couples like many others,” it said. “There are those who are already cohabitating; who already have children.”

Unsurprisingly, the mainstream press took the bait and seized upon this statement to run headline after headline pushing the confusing notion that the event was a prelude to, or evidence of, a change in Church teaching on marriage.

Headlines like: 

All I can do is pray that the public fallout from these wedding ceremonies does not foreshadow the public outcome of the Synod. If so, we could be headed for a tragedy akin to the tragedy of the late sixties when, despite the proclamation of the truth of Humanae Vitae against contraception, the effect among ordinary Catholics was a near universal rejection of the teaching in practice.

What to expect at the Synod

The official list of those taking part in the Synod includes 114 presidents of Bishops’ Conferences, 13 heads of Eastern Catholic Churches sui iuris, 25 heads of the dicasteries of the Roman Curia, nine members of the Ordinary Council for the Secretariat, the Secretary General, the Undersecretary, three religious elected by the Union of Superiors General, 26 members appointed by the Pontiff, eight fraternal delegates, and 38 auditors, among whom are 13 married couples and 16 experts.

You’ve undoubtedly heard of Cardinal Kasper’s intervention at the Consistory of Cardinals earlier this year, in which he laid out a contentious proposal to allow Catholics who have been divorced and then ‘remarried’ outside the Church to receive Communion. 

Since then a bevy of heavy-hitter cardinals have fought that proposal, including:

Today, however, Cardinal Kasper said the “attacks” from these cardinals were not so much directed at him but at Pope Francis, since, claims Kasper, he discussed his intervention with the pope and gained his approval.

The claim has some basis, since the day after Kasper made the proposal, before it was made public, Pope Francis praised it publicly.  According to Vatican Information Service, the Holy Father said:

I read and reread Cardinal Walter Kasper's document and I would like to thank him, as I found it to be a work of profound theology, and also a serene theological reflection. It is pleasant to read serene theology. And I also found what St. Ignacius described as the 'sensus Ecclesiae', love for the Mother Church. ... It did me good, and an idea came to mind – please excuse me, Eminence, if I embarrass you – but my idea was that this is what we call ‘doing theology on one's knees’. Thank you, thank you.

Of note, Vatican correspondent Sébastien Maillard, writing for France’s La Croix, reports today that Pope Francis is “irritated” by the release of a book containing criticisms of the Kasper proposal by five cardinals.

As LifeSiteNews.com reported yesterday, one of those authors, Cardinal Raymond Burke, is being demoted from his headship of the Apostolic Signatura. The only post planned for the 66-year-old cardinal thus far is patron of the Order of Malta. 

Cardinal Burke’s pre-Synod interventions go beyond the divorce and remarriage question and into the matter of homosexuality.  In a recent interview Cardinal Burke gave a clear refutation of the misuse of Pope Francis’ famed ‘Who am I to judge’ quote to justify homosexuality.

While the issue of the Church’s teachings on homosexuality is seldom raised in reference to the Synod, with most of the emphasis being placed on the question of divorce and remarriage, it is mentioned in the working document, or ‘Instrumentum Laboris’, of the Synod.

As with the matter of divorce, no doctrine regarding homosexuality can be changed, but much confusion can still be sown under the auspices of adjustments to “pastoral” practice. Without a clear teaching from the Synod, the effects could be similar to the shift in “pastoral” practice among dissenting clergy after the promulgation of Humanae Vitae, which led to the use of artificial contraception by most Catholics.

Already and for many years there has been de facto broad acceptance of homosexual sexual practices in many Catholic schools, universities and many other institutions, with many staff being active homosexuals in open defiance of Catholic moral teaching.

Regarding the Synod’s deliberations on homosexuality, it does not bode well that one of Pope Francis’ personal appointees to the Synod is retired Cardinal Godfried Danneels.  The selection is remarkable because of Danneels was caught on tape in 2010 urging a victim who had been sexually abused by a bishop-friend of Danneels, to be silent.  Then, only last year Danneels praised as a “positive development” that states were opening up civil marriage to homosexuals.

Then, just this week, as reported on the Rorate Caeli blog, one of the three Synod presidents gave an interview with the leading Brazilian newspaper in which he said that while stable unions between homosexual persons cannot be equated to marriage, the Church has always tried to show respect for such unions.

The statement matches that of another prominent Synod participant, Vienna’s Cardinal Christoph Schönborn, who in 2010 spoke of giving more consideration to ‘the quality’ of homosexual relationships. “We should give more consideration to the quality of homosexual relationships. A stable relationship is certainly better than if someone chooses to be promiscuous,” Schönborn said.

In the end, while there is currently a public battle in the Vatican that is unprecedented in modern history, the faith will not and cannot change.  As faithful Catholics, and Christians, we must cling to the Truths of Christ regarding the family and live them out in our own lives first and foremost.  That is difficult, to be sure, especially in our sex-saturated culture, but with Christ (and only with Him) all things are possible. 

Plead with heaven for the pope and the bishops in the Synod.  LifeSiteNews will be there reporting from Rome, and, with your prayers and support, be of service to those defending truth.

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Poet: I ‘would’ve died’ for my aborted daughter’s ‘right to choose,’ just ‘like she died for mine’ (VIDEO)

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By Ben Johnson

What kind of mother asks her baby to die for her? And what kind of media outlet celebrates that?

To take the second question first, The Huffington Post is promoting a video featuring Scottish “poet” Leyla Josephine, celebrating her decision to abort her daughter. The video, “I Think She Was a She,” was uploaded to YouTube a month ago.

In the video Josephine, decked out in military camouflage, justifies herself in part by saying that she would have been willing to serve as a sacrifice to abortion just as she offered her daughter to the idol of “choice.”

“I would’ve supported her right to choose – to choose a life for herself, a path for herself. I would’ve died for that right like she died for mine,” she said.

In the next rhyming line, she addresses her unborn daughter: “I’m sorry, but you came at the wrong time.”

“I am not ashamed. I am not ashamed. I am not ashamed," she continues – a phrase she repeats a total of six times. She repeats the phrase "This is my body" three times. (She also takes the Lord's name in vain once.)

In the early part of the video, she describes her belief that her child was a girl and imagines a life where she had given birth to her daughter.

“I know she was a she,” she says. “I would have made sure that there was space on the walls to measure her height,” she adds. “I would have made sure I was a good mother.”

At one point she appears to describe the emotional aftermath of her choice as “a hollowness that feels full, a numbness that feels heavy.”

But she later calls the idea that her child was a girl or a boy “bull---t” and affirms, yet again, she is not ashamed.

This provokes a few observations:

1. If she knew her child's sex, she must have had a late-term abortion. Our gentle, healing restoration is needed in a world marred by so much aggression and anger in the name of political orthodoxy.

2. Fr. Frank Pavone has written, ”Did you ever realize that the same four words that were used by the Lord Jesus to save the world are also used by abortion advocates? 'This is My Body.'” To paraphrase him, he notes the difference. One, by surrendering His life on the Cross, gave life to the world. The abortion industry uses this phrase to impose its will on the bodies of separate, living human beings who have not harmed anyone.

3. The most chilling phrase in the video is her statement, “I would’ve supported her right to choose...I would’ve died for that right like she died for mine.”

First of all, her daughter did not die for the “right to choose.” Her daughter was not sacrificed for the inalienable “good” of keeping abortion-on-demand legal (and, in the UK, taxpayer-subsidized). Politicians are bribed to maintain it; no baby needs to die for it. Josephine's child died because HuffPo's hero of the moment chose not to carry the baby to term and place him/her in the hands of loving adoptive parents who would have cherished her baby – whether it was actually male, female, or intersex.

Josephine describes the emotions that actually led to the abortion only metaphorically – e.g., she compares the abortion to chopping down a cherry tree – but that angst is the root (so to speak) of the abortion, not the great and grand cause of assuring that other women have the right to go through the same soul-crushing grief.

That intimation that her daughter died for “choice” – that she offered her baby as a living sacrifice on the altar of abortion – confirms the darkest rhetoric of the pro-life movement: That for some in the movement, abortion is sometimes regarded as an idol.

And that raises one other, more universally held question: What kind of parent asks his son or daughter to die for the “right” to abortion? Parents are supposed to be the one who sacrificially care for their children, who forsake their own comfort, who do whatever is necessary – even die – to keep their children safe, healthy, and well. Josephine's blithe, “Sorry, but you came at the wrong time” sounds as hollow as a gangland assassin's apology to the family caught in the crossfire of a drive-by shooting. Abortion severs the love that God, or Mother Nature, or evolution, or whatever you choose to believe in placed within every pregnant woman to link the mother to her child.

The abortion lobby's rhetoric, which increasingly disregards the value of unborn life, is untethered by the bonds of human compassion, is fundamentally selfish and cold-blooded, and lacks a sense of humanity and brotherhood to the point of obliterating maternal love itself.

“Will a woman forget her child, so as not to have compassion upon the offspring of her womb?” God asks through the prophet Isaiah. “But if a woman should even forget these, yet I will not forget thee, saith the Lord.”

The pro-life movement exists precisely to set this upside-down order aright, to reinstate the natural love and compassion everyone should have for all of God's creation – most especially that between a mother and the innocent child she has helped create and fashion with her own DNA.

Cross-posted at TheRightsWriter.com.

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Cardinal Dolan greets worshipers and guests on the steps of Saint Patrick's Cathedral in Manhattan after Easter mass on April 8, 2012 in New York City. Lev Radin / Shutterstock.com
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Catholic leaders criticize Cardinal Dolan’s defense of gay group at St. Patrick’s Parade

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By Lisa Bourne
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New York Cardinal John O'Connor on the cover of the New York Post on January 11, 1993. http://rorate-caeli.blogspot.com/

New York Cardinal Timothy Dolan defended his decision to serve as grand marshal for the 2015 St. Patrick’s Day Parade on Wednesday, in the wake of widespread criticism from Catholics after he praised the organizing committee for allowing a homosexual activist group to march.

“If the Parade Committee allowed a group to publicize its advocacy of any actions contrary to Church teaching, I’d object,” Dolan stated in his weekly column. On the contrary, he argued, “The committee’s decision allows a group to publicize its identity, not promote actions contrary to the values of the Church that are such an essential part of Irish culture.”

Austin Ruse, president of the Catholic Family and Human Rights Institute, was not impressed with the cardinal’s argument. This is precisely about publicizing advocacy contrary to Catholic teaching,” he said.

“As a Catholic father I find there is rapidly contracting space where this shameful agenda is not stuck in the faces of my children,” Ruse told LifeSiteNews. “The Church should be protecting our children rather than abetting those who prowl about the world seeking the ruin of innocent souls."

Pat Archbold, a popular blogger at the National Catholic Register and who runs the Creative Minority Report blog, lambasted Dolan for suggesting the embrace and promotion of “gay identity” can be separated from the sin of homosexuality.

“This identity is not a morally-neutral God-given attribute such as male or female, black or white,” he said. “The identity is with the immoral choice to engage in immoral behavior.”

“The best that can be said in this situation is that these people choose to proudly identify themselves with an intrinsic disorder.  But in reality, it is worse than that,” he continued. “The people find their identity and pride in sin.  Either the Cardinal knows this or he doesn't, either way Cardinal Dolan reveals himself unequal to his responsibility as a successor of the Apostles.”

The parade committee changed its longstanding policy on September 3 after decades of pressure from homosexual groups. Upon being announced as the parade’s grand marshal later the same day, Cardinal Dolan said he had no trouble with the decision at all, calling it “wise.”

The organizers had never prohibited any marchers, but did not ban issue-focused banners and signs, whether promoting homosexuality or the pro-life cause.

Cardinal Dolan stated in his column Wednesday that he did not oppose the previous policy.

“This was simply a reasonable policy about banners and public identification, not about the sexual inclinations of participants,” he explained.

“I have been assured that the new group marching is not promoting an agenda contrary to Church teaching,” he said as well, “but simply identifying themselves as ‘Gay people of Irish ancestry.’”

The homosexual activist group that will march is called OUT@NBCUniversal, which describes itself as the employee resource group for LGBT & Straight Ally employees at the media giant.

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The network held the broadcast contract for parade coverage. Reports indicated the contract was about to expire, and that NBC joined in pressuring on parade officials.

Cardinal Dolan conceded in his column there were many thoughtful reasons for criticizing the parade policy change, and noted that he shared some of them.

“While a handful have been less than charitable in their reactions, I must admit that many of you have rather thoughtful reasons for criticizing the committee’s decision,” he said. “You observe that the former policy was fair; you worry that this is but another example of a capitulation to an ‘aggressive Gay agenda,’ which still will not appease their demands; and you wonder if this could make people think the Church no longer has a clear teaching on the nature of human sexuality.” 

However, he said, the most important question he had to ask himself was whether the new policy violated Catholic faith or morals.

In stressing that homosexual actions are sinful while identity is not, Cardinal Dolan said, “Catholic teaching is clear: ‘being Gay’ is not a sin, nor contrary to God’s revealed morals.”

Making opinion paramount, the cardinal offered that the parade committee “tried to be admirably sensitive to Church teaching,” and even though the original policy was not at all unfair, the committee was “realistic in worrying that the public perception was the opposite, no matter how often they tried to explain its coherence and fairness.”

“They worried that the former policy was being interpreted as bias, exclusion, and discrimination against a group in our city,” Cardinal Dolan wrote. “Which, if true, would also be contrary to Church teaching.”

When the decision was announced and Cardinal Dolan named the parade’s grand marshal, Philip Lawler, director of Catholic Culture and editor for Catholic World News, called it a significant advance for homosexual activists, and a significant retreat for the Catholic Church.

Pointing out in his column that the media will be correct to concentrate on that narrative at next March’s event, Lawler identified what he said is almost certain to be the result of the 2015 St. Patrick’s Day Parade.

“Next year there will be only one story-line of interest to the reporters who cover the annual parade in the world’s media capital: the triumph of the gay activists,” Lawler wrote.

“Photographers will be competing for the one ‘money’ shot: the picture of the contingent from OUT@NBCUniversal marching past the reviewing stand at St. Patrick’s Cathedral, under the benign smile of Cardinal Timothy Dolan.”

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