“The Marriage Ideal” – part two

August 11, 2010


In the first part of “The Marriage Ideal” I commented on a New York Times editorial supporting the overturning of California’s Proposition 8.  I rejected the arguments of the writer in favor of gay marriage on the grounds that they conflicted with Catholic moral teaching, which Catholics believe is objectively true, divinely revealed, and binding on all men.  I also recognized that this naturally brings up the question of how one can reconcile the grounds for this rejection with the secular nature of the U.S. Constitution, and how one might respond to Judge Walker’s claim that “The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose” (decision, p. 8).

In this post I will attempt to demonstrate two things.  First, I will show why Judge Walker’s claim is wrong without reference to the Constitution.  This will be in essence a theoretical demonstration.  Second, I will show how Judge Walker’s decision might be overturned, working within the system of the U.S. Constitution – this will be a practical argument.

These two sections are necessary because of the nature of the legal and moral problem being discussed.  Essentially, the faithful Catholic has to find a way of getting his views accepted within a system that on principle rejects any of his views insofar as they are Catholic.  Accordingly, I wish to demonstrate the falsity of the principles and the intrinsic injustice of this system, as well as provide a practical solution to the problem that can be achieved within the limits of that unjust system.

1a. Catholic teaching on the nature of the state

I am well aware that this section will likely seem irrelevant to those who are not Catholic.  However, the teaching it contains is nevertheless true and important, as is everything that comes from God.  In the next section I will show how Judge Walker’s claim is also inherently contradictory, without reference to Catholic teaching.  This first section will show not only that Judge Walker is wrong, but why he is wrong, and what is right.

According, then, to the authoritative teaching of Pope Leo XIII’s encyclical Immortale Dei, the reasoning behind Catholic teaching on the state is as follows.

(i) Man is naturally prompted to live in society (family, state, etc.), because the individual is not self-sufficient.

(ii) No society can hold together without a governing authority.

(iii) Therefore this authority is of natural origin, like society itself.

(iv) God, who is the creator of nature, is therefore the creator of both society and governing authority.

(v) Therefore all public power proceeds from God (cf. 1 Corinthians xiii. 1).

It should be noted that conclusion (v) is in direct opposition to the philosophy behind modern secular political systems, which hold that public power proceeds from the people.  According to this latter theory, if a majority of people in the state support a given law, and the law is not found to violate any general principles that may be self-imposed on society, again by the people or their representatives (like the U.S. Constitution), the law accordingly becomes binding on all the citizens of the state.  In Catholic teaching, however, this is not necessarily the case.  If law x is contrary to the law of God, it makes no difference if every single person in the state supports law x: the law is invalid, because law only has validity and force insofar as it conforms to the law of God, who is the supreme lawgiver and the source of all authority, as was shown above.

A further and perhaps even more striking contradiction is the consequence of conclusion (v) with regard to the proper attitude of the state towards God and religion.  Leo XIII goes on to teach that, just as each individual owes worship to God his Creator, so each society, because it has also been created by God (see (iv) above), owes worship to God, its Creator.  And because we are bound to worship God in the way He has indicated to us, the state has the duty of discovering the true religion and supporting and protecting it in every way.  This true religion is “easily discovered” to be Catholicism.  Pope Leo gives the following examples of the “abundant and striking proofs” that this is so: “the fulfilment of prophecies, miracles in great numbers, the rapid spread of the faith in the midst of enemies and in face of overwhelming obstacles, the witness of the martyrs, and the like.”  The state therefore has the obligation of supporting and protecting the Catholic religion.

The state has this obligation for practical reasons as well.  The purpose of the state is to promote the common good; that is, the good of every person living in it.  But the ultimate good of every person living in any state lies in achieving eternal beatitude in heaven, which can be done only through the true religion.  Therefore, if the state fails to support the true religion, it is contradicting its very purpose for existence.  As Pope St. Pius X writes, “as the present order of things is temporary and subordinated to the conquest of man’s supreme and absolute welfare, it follows that the civil power must not only place no obstacle in the way of this conquest, but must aid us in effecting it” (Encyclical Vehementer nos, 3).

Judge Walker’s claim, then, that “the state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose” is manifestly and gravely false – or at the very least, incomplete and misleading.  One of the foremost obligations of the state is, not necessarily to enforce, but to support and defend true “moral” and “religious beliefs.”  The separation of Church and State is, of course, based on the idea that the true religion cannot be identified, and thus the state must restrict itself to areas unrelated to religion.  But as was shown above, and as Pope Leo writes, “It [is] a sin for the State not to have care for religion as a something beyond its scope.”

1b. The inconsistency and injustice of Judge Walker’s statement

I wrote in my first post that it was impossible to remain neutral on the issue of state recognition of gay marriage.  It is equally impossible to remain neutral on the Catholic teaching of the nature of the state.  Any teaching other than the Catholic teaching is of necessity anti-Catholic, and therefore false.  As Michael Davies writes, “A secular approach is by that very fact an anti-God and an anti-Christ approach” (The Reign of Christ the King, TAN Books, 5).

A clear example of the truth of this statement can be found in the encyclical of Pope St. Pius X quoted above.  The Pope writes: “That the State must be separated from the Church is a thesis absolutely false, a most pernicious error.  Based, as it is, on the principle that the State must not recognize any religious cult, it is in the first place guilty of a great injustice to God” – for the reasons given by Pope Leo XIII.  Further, “This thesis is an obvious negation of the supernatural order.  It limits the action of the State to the pursuit of public prosperity during this life only, which is but the proximate object of political societies; and it occupies itself in no fashion (on the plea that this is foreign to it) with their ultimate object which is man’s eternal happiness after this short life shall have run its course.”

It is clear that there is no middle ground between the Catholic position and the secular position.  Either Catholicism is the true religion, or it is not.  If it is, the state is bound to support it.  If it is not, or the state refuses to recognize it, the whole conception of the purpose of the state will be entirely different.  The resulting secular concept of the state will, as Pope Pius observes, “negate the supernatural order” and “limit the action of the State to the pursuit of public prosperity.”  Both effects directly contradict Catholic doctrine on essential points.  If, therefore, Catholicism is true and the state does not recognize it, it is obvious that an incalculable injustice is being done.  Thus, ignoring the claims of the Catholic Church is exactly the same in effect as actively rejecting them.

This is the fault of which both Judge Walker and the U.S. Constitution are guilty.  Further, the secular position they adopt is not only false (something which can be disputed, on the grounds that Catholicism is not true), but self-contradictory (something that cannot be disputed).

The reason it is self-contradictory is that it fails to recognize that the secular position itself is a moral and religious view.  To say that government can have no concern for religion (which is not exactly what the Constitution says, but is how it is interpreted) is emphatically not to remain neutral.  It is to reject religion and substitute for it the belief system, the “religion,” of secularism, which is based on the premises identified by Pope St. Pius X: the negation of the supernatural and the limiting of the state to the mere pursuit of prosperity.

Furthermore, these principles are only the basis of much more directly harmful policies.  In fact, they lead directly to the de facto imposition of atheistic materialism and moral relativism as the state religion.

Lest I be accused of exaggerating, consider the following examples from Judge Walker’s decision (again, the full text is available here).  As evidence that the state does not have an interest in distinguishing between same-sex and opposite sex-couples, he cites the fact that  “the American Psychiatric Association, the American Psychological Association and other major professional mental health associations have all gone on record affirming that homosexuality is a normal expression of sexuality” (p. 76).  As evidence that Proposition 8 unjustly enacted a “private moral view,” he cites the statement of the Catholic Congregation for the Doctrine of the Faith that homosexual acts are “a serious depravity” (p. 102): in other words, that homosexuality is not a normal expression of sexuality.

One source says homosexuality is “a normal expression of sexuality.”  The other says that homosexual acts are “a serious depravity.”  The first statement is accepted, and the second is rejected, because the first statement comes from a secular source and the second from a religious source.  This is not “neutrality”: this is the religion of secularism.  Psychologists, not priests, are to decide whether homosexuality is “normal” and can be recognized by the state.  Furthermore, the psychologists making the decision are almost all secularists themselves, and therefore moral relativists, who essentially believe that no behavior can be prohibited that does not cause obvious harm to another person.

To repeat: there is no middle ground here.  One is either for the Church and against secularism, or for secularism and by that very fact, wittingly or not, against the Church.  This is the basic problem with the U.S. Constitution: by the very fact of its refusal to recognize the Catholic Church, it shows itself, intentionally or not, to be anti-Catholic and secularist.

2. A constitutional solution

Now, I am realistic enough to recognize that the first amendment of the Constitution is not going away any time soon.  In this connection, it should be noted that Catholics in a non-Catholic state are bound to work within the confines of the political system in which they find themselves.  There is no question of a Roman army, if one existed, invading the United States and forcing it to change its Constitution.  To use force in such a situation is itself a violation of Catholic morals.

Given, then, that American Catholics must work within an unjust system of government that forbids them to pass laws defending their religious beliefs as such, they must find a way of achieving the same results without explicitly involving their religious beliefs.  Although I am far from being a legal expert or a constitutional scholar, I will propose one possible solution here.

It is, however, necessary first to have some idea of the reasoning behind Judge Walker’s decision.  Judge Walker’s grounds for overturning Proposition 8 are that it violates the equal protection clause of the 14th amendment: “No state shall … deny to any person within its jurisdiction the equal protection of the laws.”  His reasoning is that the equal protection clause applies in this case because homosexual couples do not differ in any significant way from heterosexual couples.  (He answers in the negative the question, “Whether any evidence shows California has an interest in differentiating between same-sex and opposite-sex unions?”: see pp. 71-84.)

His justification for this reasoning is found on pages 109-114.  This justification amounts to the following.  Judge Walker admits that the “evidence at trial” shows that “marriage in the United States has traditionally not been open to same-sex couples” (p. 112).  We are told, however, that this “exclusion” is merely “an artifact of a time when the genders were seen as having distinct roles in society and in marriage.  That time has passed” (p. 113).  Therefore, the history and tradition of the United States’s attitude towards marriage, which were the criteria by which the question was to be settled (p. 111) may, in Judge Walker’s opinion, be ignored, and the final, clinching argument be set  forth: “Plaintiffs do not seek recognition of a new right … Rather, plaintiffs ask California to recognize their relationships for what they are: marriages” (p. 114).

In other words, Judge Walker, by his own admission, rejects the views, not only of seven million Californian voters, but also of the collective historical population of the United States, in favor of his own view (supported by the assertions of a handful of homosexualist psychologists and psychotherapists) that same-sex marriages are marriages because … they are.

I defy anyone to claim that this is not a case of “moral or religious beliefs” being “enacted” by “the state” “without an accompanying secular interest.”  (Assuming for the purposes of argument that “the state”=”Judge Walker”).

If my argument is accepted, the consequences are clear.  Because homosexual couples, in the view of the entire tradition of the United States and of the majority of voters in the state where the question was put, are incapable of exercising the right to marriage, as marriage is only possible for opposite-sex couples, the equal protection clause of the fourteenth amendment does not apply.  Therefore there are no grounds for overturning the will of the majority as decided by a fair election.

To Judge Walker’s statement “that the majority of California voters supported Proposition 8 is irrelevant, as ‘fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections'” (p. 114), we may reply that the whole question is whether same-sex marriage is, in fact, a fundamental right.  Until Judge Walker can provide conclusive evidence to the contrary, we are bound to accept the decision of the voters that a fundamental right is not at issue.

It would be very interesting to see how one could possibly provide evidence for the unhistorical and unpopular moral view that same-sex marriage is a fundamental right without falling under the condemnation of Judge Walker himself for “advancing a private moral … view without an accompanying secular purpose.”


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