This blog started out as a companion piece to my book, Musings from the Christian Left (excerpts of which can be found in the July 2004 link) and to support a planned radio show. Now, its simply a long term writing project from a Christian Left Libertarian perspective (meaning I often argue for liberty within the (Catholic) Church, rather than liberty because the church takes care of a conservative view of morality.

Monday, August 24, 2009

The battle over gay marriage is heating up

The battle over gay marriage is heating up in the District of Columbia, as the forces against it are about to launch an initiative stating that marriage is only between a man and a woman. The prospects for this initiative are not good, since on its face, it violates the District's Human Rights Act as much as the prior attempt at a referendum to prevent the District from honoring gay unions performed in other states. With a Speaker of the House from San Francisco, it is unlikely that any District law on this subject will be negated by Congress by legislative veto.

Furthermore, any such initiative would likely not pass the equal protection test in the courts, even if it were allowed on the ballot. Colorado citizens tried to negate all gay rights protections by a state constitutional amendment. The federal courts found that the motivation for this amendment was malice against gays, which is not a rational basis for inequality. There is currently a suit in California, filed by former U.S. Solicitor General Ted Olson, alleging that Proposition 8 carries the same flaws, leading to the likely repeal of not only Proposition 8, but all such gay marriage bans, including the one enacted in Virginia in 2006. The Virginia Amendment, which even went so far as to negate "marriage like contracts" has not yet been challenged, since the Lambda Legal Defense fund is waiting for a better Supreme Court to move forward with these challenges - although waiting gave them Alito and Roberts in the interim.

Of late, the Catholic Church has been supporting amendments in support of traditional marriage. Indeed, the latest papal encyclical, Caritas in Veritate mentions defense of marriage between a man and a woman explicitly. The question I have is, is this a good idea?

The Sacrament of Marriage has a complicated history. In biblical times, polygamy was an accepted fact of moral behavior. Indeed, when rebuking the Sadducees, our Lord calls the patriarchs, who were polygamists, among the living. If their way of life were damnable, he could not have done that.

This past Sunday, the marital comparison to the Church in St. Paul's letter to the Ephesians was the Epistle for the week. It contains the phrase "the two shall become one flesh." This terminology is echoed in the Gospel of Matthew, written later, almost word for word. This phrase has two meanings. One is sexual but the other is legal. It reflects the underlying truth that when one is married, one is divorced from one's family of origin and one with one's spouse.
A main impetus for gay marriage is the lack of recognition in family law of the rights of the gay spouse in relation to the family of origin, especially regarding inheritance and end of life issues. Such couples function as a de facto family, but there is not recognition in the law. The law is not catching up to the reality of their situations - and it is recognizing that if a heterosexual couple can, with one act, gain recognition of their rights as a family, that is is an onerous burden to force a gay couple to execute a multitude of legal instruments to gain the same rights - some of which are still out of reach, particularly with regard to the Social Security system. The latter provisions are indeed anti-family, as sometimes the gay couple has custody of children and the natural parent is the one who has died. An equal application of the law would provide survivors benefits to the remaining custodial partner rather than forcing the child into the foster care system, or to an unfit parent. There is no sensible logic which can state with a straight face (pardon the pun) that breaking up an existing family unit at such a time is in any way "pro family."

These legal developments will, of course, affect the way the Church deals with marriage, since from ancient times the celebration of the Sacrament has followed the civil rite - and still does in much of Europe. The United States is unique in the use of religious authorities to celebrate civil marriage at the same time. The Sacrament was originally a simple blessing of the civil action. It later evolved into a separate set of vows. It is also recognized that the vows that a couple makes are made to each other. The Church witnesses the marriage, but it is performed by the parties themselves. Given that fact, any teaching that gays cannot marriage seems out of step with reality. They seem to do it all the time now, regardless of what the Church says.

Some object to gay marriage and gay sex overall because it cannot produce children. Marriage, of course, is as much about caring for children as producing them. Gays are perfectly capable of doing that, and in fact do it because people sometimes enter into gay relationships with children in tow. While religious leaders talk about the role of procreation in marriage, the ability to procreate is not a requirement in either civil law or canon law to marry - (Canon law requires only the ability to function - although it still regards sodomy as disordered). Of course, the very concept of disorder requires that there be a natural order outside of human experience to damage (since God cannot be damaged). If the natural order is considered a sophistry then the disorder argument carries no weight, especially given the biological evidence that homosexuality is simply a natural variation in the species. If inability to procreate is not a bar to marriage among heterosexuals, it cannot be so for homosexuals.

The distinction needs to be made here between marriages, which exist before God regardless of what we say, and weddings. Weddings, going back to the Old Testament, are a joining of two families as well as the separation of the couple from each family, as is dictated in the New Testament. Weddings are an opportunity for each family to give their tacit consent to the new situation (in some ceremonies, it is still asked "who gives this person in marriage"). Usually, the parent has no choice in the matter, yet asking the question was a recognition of the fact that the child is transitioning out of the family of origin. To not celebrate gay weddings deprives Catholic families of the chance to come to grips with this within the comforting embrace of the Church. As such, it is an insult not to the couple, who often care less what the Church thinks - since the Church appears to care less about them, but to the Catholic families who willingly or unwillingly, give their children in what is soon to be recognized as legal marriage.

Such recognition is inevitable, since there is no rational basis for the family of origin to maintain superior rights in relation to a gay spouse when it does not have these rights over a straight spouse. There is certainly no biblical justification for such a distinction if the two are considered one flesh. Indeed, it is more likely that the gay couple has separated from their families of origin, so the irony that the family of origin has more legal rights is stinging and will not stand the test of equal protection law.

Finally, the Church will see it in their interest to recognize these marriages, since if it gives the Church a platform to teach that monogamy is a good thing for gays and lesbians that it does not have now as it counts both monogamous and promiscuous gay sex as the same thing, even though it is not the same thing at all. The morality of the sex act is not the act itself, but how it is used. Promiscuity is always a selfish act, where committed sexuality is unitive, natural and an expression of how the person was created. If God created people to be gay, as we are finding, who are we to argue with God? Indeed, how can we expect gays and lesbians to trust the Church when we talk about God when we do not trust them when they say that they were created to be Gay and were well made? If the current teaching on homosexuality is a barrier to evangelization, and indeed an impetus to suicide for gay youth, how can it stand? My answer is that it can't and it won't. Hopefully the changing legality of gay marriage will be an impetus to a further examination of this fact.

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