Matthew J. Franck

Same-sex marriage and social change: exceeding the speed of thought

Matthew J. Franck
By Matthew Franck

January 11, 2013 (thePublicDiscourse.com) - It is remarkable that the idea of same-sex marriage has gained ground so rapidly. Those most quick to accept the idea have been elite liberals, with ordinary Americans lagging behind but becoming more accepting of the idea. In the thick of the struggle over the law and politics of marriage, we can easily forget how novel is the idea of two men or two women marrying each other.

This fact came home to me when I participated in a forum on the subject at Princeton University last spring. Present in the room were two lions of the liberal academy, each past the “threescore years and ten” of which the Psalmist speaks, each a distinguished scholar with many publications to his credit, each known for his devotion to liberal causes. Both gentlemen expressed the opinion that the cause of same-sex marriage was obviously just, that opponents of the cause were obviously reactionary and benighted, and that this was plainly the new civil rights struggle of our time.

Yet it struck me that if denying same-sex couples the “right to marry” was such an obvious and gross injustice as to merit such energetic claims today, why had it never occurred to either of these august scholars decades ago, at the beginning or the middle of their careers? In the books of proud advocacy each had published, say, twenty or thirty years ago, there was not the slightest hint that American public life was disfigured by this particular injustice.

Redefining marriage to include same-sex relationships simply didn’t occur to them, because it didn’t occur to anyone. Yet that day they espoused that view with the fervor of men who had always thought so, and for whom it was unthinkable to believe otherwise. If they reflected on this change in their own thinking, would they conclude that their reasoning powers had been deficient years ago, or their moral sympathies inadequate?

It is, of course, possible for people to evolve in their thinking, and to come to views that weren’t on their radar in earlier days. But this seems to be a special case, not accounted for by the emergence of a genuinely new issue, nor by new knowledge, nor by a change of heart or of mind about something basic. The scholars of whom I speak, for instance, have been liberal in their attitudes toward homosexuality for many decades. One could well believe that mistreatment of homosexuals was wrong, without believing it was even possible for two persons of the same sex to marry.

If we compare the issue of same-sex marriage to an issue with which it is often equated, that of interracial marriage, we find that it stands out as unusual yet again. Like slavery itself, the now-discredited ban on interracial marriage was never without critics who complained of its injustice. Only racists thought such a ban was just, and Americans were not universally racist.

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By contrast, no advocates of justice in human history, prior to the modern sexual revolution in the West, ever thought of same-sex marriage, whatever their views on society’s treatment of homosexual persons. This historical reality brings us to Michael J. Klarman’s new book, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage. Klarman, a Harvard law professor whose very large book on the struggle for African-American civil rights won the prestigious Bancroft prize in history, has written a much shorter book this time around because all the history he relates is so very recent. Every significant element of the story has occurred in just the last twenty years. And the overwhelming impression one gets, in the pages of From the Closet to the Altar, is of social change taking place at dizzying speed, with very little thought about where we are going.

Strictly a legal-political history in its first eight chapters, Klarman’s book is a thorough and instructive tour of the last few decades, but only on a very narrow subject. The author’s tight focus on the marriage issue makes the book unsuitable as a history of American sexual attitudes and mores, of homosexuality generally, or of other “gay rights” issues; all these subjects tangentially appear only in connection with the marriage question. The spotlight is on activists, lawyers, judges, politicians, and public officials as they battle over whether marriage will be redefined to include same-sex relationships; in the background are voters and the general public as the terrain of the contest among elites.

But here is perhaps the useful reminder provided by Klarman’s book. Not only did no one ever believe, before the last few decades, that justice required us to redefine marriage as the solution to some problem. Among gays and lesbians themselves, it remained highly contentious, until still more recently, whether marriage was even something they wanted. They universally desired better treatment from the larger society, but it was by no means universal among them to desire marriage as the mark of that better treatment. And it was not just a question of whether they wanted to press for marriage now or later, as a tactical matter; it was an open question whether they wanted it at all. In the memory of any of us of middle age who have known gays and lesbians all our lives, we quite vividly recall the commonly expressed view among them, not long ago, that marriage was “for straights,” or “for breeders,” in the patois of the gay subculture.

Of this we should pause and take stock for a moment. The consensus among gays and lesbians today (with very few dissenters) is that they do indeed desire the right of civil marriage. But why do they want it? The question is seldom asked. They so plainly desire it so very much that it seems rude to ask.

Well, why have men and women throughout the ages wanted to marry—to unite with each other in a private relation that is publicly recognized, honored, and commonly sanctified? The answer may be found in another recent book, by Sherif Girgis, Ryan T. Anderson, and Robert P. George, titled What Is Marriage? Man and Woman: A Defense. Sexual attraction and romantic love may prompt a couple’s desire to be together, but they marry in order to make something new that honors and ennobles that attraction and love: the nucleus of a family, in a comprehensive relation of husband and wife that points toward the future, with an openness toward making that future through procreation.

We know that marriage can take place without procreation, and most assuredly procreation can take place without marriage. But as a public institution founded on private relations, marriage would not exist were it not for the offspring that regularly result from marital acts. And so, ask the question again: why do (typically young) men and women get married? What purpose are they pursuing? In the paradigm case, the answer is: to start a family in the way all families are made possible in nature, by sexual intercourse and childbearing.

Same-sex couples can and do raise children, but in no case can a child be the offspring of both partners. The family-with-children headed by a same-sex couple, then, is by definition an exceptional case, and cannot ever be the paradigm case of a marriage-based family. In this it resembles opposite-sex couples with stepchildren or adopted children, but only superficially. The difference that still remains is that these opposite-sex couples can provide their children with both a mother and a father, which same-sex couples cannot do. Whether that is a difference that makes a difference is a fitting question, not one to be banished as invidiously discriminating before it is asked.

Where the “conjugal view” of marriage is concerned (as What Is Marriage? calls it), as opposed to the “revisionist view,” something both natural and necessary is pursued. Uniting sexually complementary persons so that new life is brought into the world, and children are provided with mothers and fathers (and this by adoption or stepparenting or the like where “nature” fails), is what marriage has always been about at its core. And it is in order to foster this union and its fruits that marriage is recognized and protected by the laws.

In the revisionist view, marriage comes to be about something else. Throughout Klarman’s book one encounters this fact, though the author, whose prejudices are entirely in favor of this change, makes no effort to present it. For same-sex marriage advocates, marriage is about material benefits (of financial advantage, inheritance rights, control of medical care, etc.), or it is about social status and recognition (the attainment of equality under the law for a relationship hitherto left out of its ambit), or it is about a liberationist ideological project (the normalization and acceptance of homosexuality by the “heteronormative” larger society), or it is about some “transgressive” project (to transform our understanding of marriage because its traditional norms are thought to be unjust, or part of a larger fabric of injustice).

How strange this all looks from the standpoint of the tradition these advocates presumably seek to join. Men and women too might marry for some of these reasons (e.g., for material advantage or status), but they are not why marriage exists, and we are inclined to think ill of couples whose reasons for marriage do not go to the core of its purpose and nature. A change to the definition of marriage that eliminates, among its essential features, the purpose for which it came into being in the first place, is quite a step to undertake.

Throughout From the Closet, we find leading figures in the fight for same-sex marriage trying to divert the attention of voters, legislators, and judges away from the very unorthodox nature of the claim they are making on marriage as an institution. Again and again they are portrayed as pressing on accepted precepts of equality—the condemnation of “discrimination,” the application of “rigorous scrutiny” by judges to claims on behalf of tradition, and so on—as though the thing they so ardently desire were simply an extension of marital norms on which all agree.

Yet this is an astounding case of misdirection. The truth is that they wish to redefine a foundation stone of human society in such a way that it will no longer bear the weight we put on it. As others have observed, redefining marriage to include same-sex relationships completes the separation of marriage from its true nature, already begun by modern divorce law and other social changes, by making it about adult desires rather than the formation of families and the welfare of children.

Klarman turns, in the final three chapters of his book, to the correlation of forces that, in his view, will “inevitably” result in the establishment of same-sex marriage in the whole United States, probably as a result of a Supreme Court ruling in the near future. Here the most striking thing, coming from the pen of a law professor and constitutional historian, is how little interest he takes in the legal arguments and their persuasive connection to constitutional principles. Klarman seems to regard the Supreme Court justices as life-tenured Solons, lawgivers for the nation who act on their own moral convictions, and a rough sense of public opinion, rather than on legal principles discernibly present in the supreme law of the land to which the people have consented.

It is best not to be too confident of the success of a movement that has existed for so short a time, is so unsure of its arguments, and is so heavily reliant on a cynical view of constitutional government. With two cases on the Supreme Court’s docket, we will find out very soon how well moral and legal incoherence hold up, in the court of law and the court of public opinion.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. This article reprinted with permission from The Public Discourse.

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Louisiana judge orders state to recognize gay ‘marriage’

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By Kirsten Anderson

A Louisiana judge on Monday ordered state officials to recognize the out-of-state “marriage” of a lesbian couple and allow one of the women to legally adopt her partner’s child.

Angie Costanza and Christy Brewer were “married” in 2008 in California, but Louisiana’s marriage protection amendment, passed by 78 percent of voters in 2004, prevented the state from recognizing the couple’s union.  The pair sued in 2013 to overturn the law, in part because Costanza wanted to be listed as a parent on Brewer’s son’s birth certificate. 

Initially, Judge Edward Broussard dismissed the case without a hearing, but the couple appealed.  On Monday, Judge Edward Rubin took their side, ruling that Louisiana’s marriage protection law is unconstitutional in three ways:  According to Rubin, the ban on same-sex “marriage” violates the full faith and credit clause of the Constitution, as well as the due process and equal protection clauses of the 14th amendment.

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Rubin’s decision comes just weeks after U.S. District Court Judge Martin Feldman declared Louisiana’s marriage protection law constitutional – the first federal judge to decide in favor of a same-sex “marriage” ban since the U.S. Supreme Court struck down key portions of the federal Defense of Marriage Act (DOMA) last year. “There is simply no fundamental right, historically or traditionally, to same-sex marriage,” Feldman wrote in his decision. 

However, because this case is being tried in the state courts, Rubin’s decision will take precedence over Feldman’s, pending appeal.

The state plans to appeal Rubin’s ruling to the state Supreme Court.  Meanwhile, the federal case is also moving forward.  Ultimately, it is expected that the question of whether statewide bans on same-sex “marriage” are constitutional will be decided by the U.S. Supreme Court sometime in 2015. 

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New archbishops in Chicago and Madrid: Ratzingerians out, ‘inclusiveness’ in

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Chicago's Archbishop-elect, Blase Cupich

Pope Francis announced Saturday that he is appointing as archbishop of Chicago a prelate best known in pro-life circles as the man who ordered his priests in 2011 not to participate in local 40 Days for Life prayer vigils. The media and Church watchers describe him as “progressive,” “inclusive,” and “left-of-center.”

The appointment of Bishop Blase Cupich, current head of the Spokane diocese in Washington, to America’s third most prominent see – an appointment which Vatican watchers predicted would signal the pope’s priorities for the direction of the U.S. Church – has been widely praised by liberal Catholics and opponents of Church teaching but met with concern by many Catholic activists.

The archbishop-elect gave a sense of his approach to the U.S. “culture war” in an interview Sunday with Chicago’s CBS affiliate, in which he suggested he would be open to giving Communion to pro-abortion Catholic politicians and a person wearing a button in favour of same-sex “marriage.”

“As long as they’re in church, are willing to hear the word of God, be open to Christ’s call of conversion for each one of us, then I think that that’s sufficient for me,” he said. “We cannot politicize the Communion rail and I just don’t think that that works in the long run.”

Cupich will replace the ailing Cardinal Francis George, known in the US as a “Ratzingerian” for his strong defense of Catholic orthodoxy, particularly on issues of sexual morality, but who is suffering from cancer and is overdue for retirement at age 77. The archbishop of Chicago is also normally granted the “red hat” and made a cardinal, which would make Cupich eligible to vote in upcoming papal conclaves. Cupich is scheduled to be installed in Chicago November 18.

The Chicago appointment mirrors that of another outside the US in recent weeks. Rome announced August 28 that Carlos Osoro Sierra, 69, will be installed as the new archbishop of Madrid, Spain’s capital city and largest archdiocese. But the story in Madrid has less to do with the new appointee and more to do with the would-be appointee who was demoted.

Until just before the appointment, most Vatican watchers expected the prominent post to be given to 68-year-old Vatican Cardinal Antonio Cañizares Llovera, dubbed the “little Ratzinger” for his orthodoxy in line with Pope Benedict XVI.  When LifeSiteNews interviewed Cardinal Cañizares in 2009 at the time of his appointment as prefect of the Vatican’s Congregation for Divine Worship and Discipline of the Sacraments, he noted that denying communion to pro-abortion politicians was a charitable act.

Leaving his Vatican post, he was considered a natural for the Madrid spot. But instead it went to the archbishop of Valencia, and Cañizares is to fill that vacancy instead.

The former archbishop of Valencia is known for his strong “liberal” leanings and he will be replacing Cardinal Antonio Maria Rouco Varela, 78, who, like Cañizares, is also known for following the lead of the retired Pope Benedict XVI.

El Pais wrote of the new appointee that Catholics of the Madrid archdiocese, accustomed to the “hieratic” Varela, will be seeing “an entirely different model.”

“Shortly after the announcement of his appointment, the most repeated words to define his figure were ‘dialogue’ and ‘moderation.’”

“During the 12 years he has been the head of the Catholic Church [in Madrid], Rouco Varela has too often mixed faith and politics, with an overdose of intransigence. Defending the (exclusively traditional) family and attacking laws that recognize the right of women to abortion are the main workhorses.”

Catholic News Agency’s Vatican-watcher, Andrea Gagliarducci, wrote that the appointment marks a “new course for Spain’s bishops.” He is described in the Spanish press as “affable,” “friendly,” and “extremely gregarious.” 

As for Cupich, David Gibson of Religion News Service described him as “a prelate closely identified with the Catholic Church’s progressive wing.”

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Vatican watcher Rocco Palmo, author of the “Whispers in the Loggia” blog, wrote that the appointment is “the most shocking major move the American hierarchy has seen in the last decade and a half.” Another Vatican veteran, John Allen Jr., wrote for the US Catholic online magazine Crux that Cupich so closely mirrors Pope Francis’ theology and style that he could be called the “American Pope Francis in Chicago.”

On his blog, Bishop Robert Lynch of St. Petersburg, Florida, known for his icy relations with the pro-life movement, shared his excitement over the “new breeze” brought by Cupich’s appointment. The bishop noted that Cupich “admires deeply the ecclesiology and vision” of leftist prelates such as former San Francisco Archbishop John Quinn and former Galveston-Houston Archbishop Joseph Fiorenza.

The news of Cupich’s appointment was met with praise in the mainstream press. According to The New York Times Francis has “set the tone” for US appointments by “replacing a combative conservative with a prelate whose pastoral approach to upholding church doctrine is more in keeping with the pope’s inclusive tone.”

It has also been praised by dissident Catholic groups such as the homosexual activist group New Ways Ministries. Last year, the group issued a roundup of evaluations of the various leading members of the US Conference of Catholic Bishops who were set to elect a new president. New Ways praised Cupich for his intervention in the 2012 debate leading up to a referendum on “gay marriage” in Washington State. Cupich’s only intervention was a pastoral letter in which he asked voters to uphold traditional marriage, but also called for a “more civil and honest conversation about Catholic positions on equality.”

“I also want to be very clear that in stating our position, the Catholic Church has no tolerance for the misuse of this moment to incite hostility toward homosexual persons or promote an agenda that is hateful and disrespectful of their human dignity,” Cupich wrote.

Cupich stood out from his fellow US bishops in his response to the abortion-funding Obamacare. Though he joined his other bishops in condemning the Obama administration’s mandate that Catholic employers cover abortifacients and contraceptives, he encouraged Catholic Charities in his diocese to act as an Obamacare navigator and help people sign up for coverage that could fund the destruction of unborn life.

He also condemned the line of other US bishops when they threatened to shut down Catholic social services. “These kind of scare tactics and worse-case scenario predictions are uncalled for,” Cupich wrote in a letter to diocesan employees. “I am confident we can find a way to move forward.”

Today the anti-Catholic organization Call to Action issued a press release saying they are “relieved” at the appointment. “At a time when numerous U.S. Bishops are choosing to fight ideological battles, Pope Francis’ selection of Cupich demonstrates a desire for a humbler, more pastoral church.”  

Call to Action, like New Ways Ministries, works to overturn Catholic doctrine, particularly on sexual matters, from within the Church, and has received the censure of the US bishops for their activities. They wrote, “The choice of Cupich shows promise for a church which can be closer to the people. Catholics in Chicago and beyond yearn for a faith rooted in the Gospel call of love and justice over rigid orthodoxy.”

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Rick Perry: Joan Rivers’ death shows Texas is right to require abortionists to have admitting privileges

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By Kirsten Anderson

In the wake of the high-profile death of comedienne Joan Rivers due to complications from throat surgery at an outpatient clinic in New York City, Texas Gov. Rick Perry pointed to the tragedy as an example showing the necessity for his state’s one-year-old law requiring abortion clinics to meet the same standards as other ambulatory surgical centers.

"It was interesting that when Joan Rivers -- and the procedure that she had done, where she died -- that was a clinic,” Perry said at a Texas Tribune event on Sunday. “It's a curious thought that if they had had that type of regulations in place, whether or not that individual would be still alive.”

Many observers have criticized the governor’s remarks, noting that Rivers’ surgery was performed in a fully licensed ambulatory surgical center by a doctor with admitting privileges at a nearby hospital, as is the current standard for abortion facilities in Texas, but died anyway.  However, the painstaking investigation into what may have gone wrong at the New York City clinic reveals that while all surgery carries risks, ambulatory surgical centers are required to take every precaution to ensure the safety of their patients, in contrast to more loosely regulated abortion clinics, where injuries and deaths are rampant, and often covered up.

While 32 separate medical associations have signed a joint agreement stating that anyone “performing office-based surgery must have admitting privileges at a nearby hospital, a transfer agreement with another physician who has admitting privileges at a nearby hospital, or maintain an emergency transfer agreement with a nearby hospital,” abortion businesses have fought such regulations tooth and nail, arguing that requiring abortionists to maintain admitting privileges is too burdensome and will cause clinics to close their doors.  

Abortionists have also opposed tougher safety restrictions forcing them to adhere to the same standards as other ambulatory surgical centers, arguing that upgrading their substandard facilities to meet hospital-grade requirements is costly and unnecessary.  But proponents of such regulations point out that the tiny parking lots, narrow hallways, and lack of elevators common to most abortion facilities are serious impediments to getting lifesaving help to women in case of emergencies, delaying paramedics who can’t park their ambulances or maneuver gurneys through such buildings.  In addition, licensed ambulatory surgical centers must have and properly maintain state-of-the-art resuscitation equipment, and train employees in their use – something abortion clinics have repeatedly been cited for failing to do.

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