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Friday, July 11, 2003
You may remember that when now-Justice Clarence Thomas was nominated for the Supreme Court, before the Anita Hill accusations were made, a controversy arose over Thomas' praising of an article that supported the use of "natural law" in constitutional adjudication. Those big words basically mean that the article's author was arguing that the Supreme Court should decline to enforce laws that are contrary to the precepts of "nature", or, more often, God. Natural law derives from St. Thomas Aquinas' theory that posits that God instills in human beings certain moral precepts, which are then used by humans (imperfectly) to create human laws. Natural law does not have to be religious in nature; some other theorists reject Aquinas' attribution of natural law principles to God, but agree that humans are born with these principles hard-wired into their circuitry.

Natural law has a perfectly honorable tradition as a philosophical hypothesis and ethical philosophy. The Declaration of Independence, famously, invokes natural law when it states that humans "are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness". And the Catholic Church continues to study and invoke natural law as the governing ethical philosophy of the Church. The problem comes when it is invoked as law, or a principle of constitutional interpretation, as was advocated in the article Thomas praised. First, in its religious form, natural law would essentially establish a theocracy. Whatever the value of Catholic moral teachings, if we allow such teachings to be a valid basis to strike down legislation, we would be no different than Muslim countries where laws must conform to the Koran.

But even in its secular form, natural law is extremely dangerous, because, as even Aquinas recognized, its principles are so general. Nobody believes that humans are born with the Napoleanic codes inscribed in their brains. Rather, natural law theories posit that we are born with such abstract concepts as "you should not kill another human being" and "you have an obligation to take care of the weak". Of course, the article Thomas praised (wouldn't you know it) was advocating the use of such principles to strike down laws that legalize abortion. But even if we assume that these concepts are hardwired into our brains, they are too abstract to provide even a minimal basis for interpretation by a court-- abortion is a perfect example of this, as people would argue whether it constitutes "killing another human being" (Aquinas himself, for instance, did not oppose all abortions) or "not taking care of the weak", or whether in fact a fetus has not yet achieved full humanity, and that the mother's weakness is the relevant consideration of society.

As a result, natural law has properly been rejected as a means of constitutional interpretation, and even Thomas disavowed his praise for natural law during his confirmation hearings. But in one institution-- the Catholic Church-- natural law is still the touchstone of any analysis of what governments may or may not do. Of course, as we have seen lately, the Catholic Church's perception of its relationship to the law is peculiar indeed; the institution seems to feel that it is not bound by laws requiring those who take responsibility for the children of others to take steps to prevent sexual abuse of children, and further that any enforcement of the laws requiring cooperation with law enforcement is a violation of the Church's First Amendment right to free exercise of religion. (Under this theory, of course, the government would have had no power to stop David Koresh from raping pre-teenagers.) While this position is obviously a transparent ruse to protect the pedophiles and their enablers that are strewn throughout the Church hierarchy, I can also tell you that many Catholics (especially conservative ones) believe it. But while not bound by the law, the Church takes an aggressive position regarding its right to shape it, and the goal seems to be to bring human law in line with natural law principles as the Church sees them.

That's a long introduction for a noxious post that was made by prominent New York conservative priest Father George W. Rutler in National Review Online today. It was a response to an argument by John O' Sullivan, who argues that the solution to the gay marriage controversy is to permit competition among various models of marriage, including traditional religious marriage, civil marriages (which would include gay marriage), and domestic partnerships. O'Sullivan's argument is complicated, but it basically says that traditional marriage will suffer no harm from the competition. Here is Father Rutler's response:

"The point is not whether the State should recognize same-sex marriages (the term in itself being oxymoronic). The fact is that the State cannot do it. As the Canadian bishops recently wrote to the Prime Minister of Canada: Marriage pre-exists the State and is fundamental to society and the institution of marriage therefore cannot be modified by the State or a court of law. They also pointed out that 'same-sex marriage' discriminates against heterosexual marriage and the family which would be deprived of their social and legal recognition as the fundamental and irreplaceable basis of society."

This, of course, is classic natural law reasoning, with a perverse claim of victimization thrown in at the end. (I thought conservatives were opposed to the culture of victimization.) And the natural law reasoning is totally spurious. Of course, Father Rutler, marriages existed in the church before the State recognized it. And of course, those marriages "cannot be modified by the State or a court of law". But that has nothing to do with the issue at hand, which is what the state chooses to recognize as marriage and afford benefits to. The question of gay marriage is the question of discrimination-- whether or not the state can grant benefits to heteros that it refuses to grant to gays, including inheritance rights, immigration rights, child visitation, hospital visitation, insurance coverage, and the like. States should not hand these rights out in a discriminatory fashion whether they are labeled "marriage" or "a ham sandwich". And a government which chooses to continue to use the label "marriage" while handing these benefits out in a non-discriminatory fashion is not "modifying" the definition of marriage that preexisted the state, any more than a state that allows a person to remarry after divorce (not permitted under Catholic doctrine) or allowing a Catholic to marry a non-Catholic without an agreement to raise the children as Catholic (generally discouraged by the Church) is modifying the definition of marriage that preexisted the state. The state is simply modifying the manner in which it affords certain benefits to certain people who enter into certain social arrangements, i.e., civil marriage. Nothing the state can or will do will change the religious definition of marriage.

Let's take another example where we can see this more clearly. Catholic funeral rites also predate the United States government. The Catholic Church defines a "funeral" in a certain fashion, and requires certain ceremonies to take place as part of a funeral. If the US government decides to pay for the costs of funerals of dead veterans, and further decides to do it in a non-discriminatory fashion, paying not only for Catholic funerals that contain these ceremonies but also for other types of funerals, devised more recently, that do not contain them, is the government "changing" the definition of the funeral? Of course not! The Catholic Church can still believe what it wants to believe about its funeral ceremonies, and the US government is simply using a non-discriminatory definition of "funeral" to determine when veterans' benefits are paid.

Finally, a point about Father Rutler's discrimination claim. It is obvious as it can be that marriage laws discriminate in favor of heterosexuals, and Father Rutler must know this. So, he recasts this argument to say that taking away heteros "social and legal recognition as the fundamental and irreplaceable basis of society" is tantamount to discriminating against heteros. First, this is plainly not true. It is not discrimination to stop discriminating in favor of a group. When laws against interracial marriage were eliminated, did that action discriminate against those who preferred to marry within their race? Of course not-- they can still marry within their race, even now.

(As an aside, this post originally used affirmative action / racial preferences as an example of the foregoing. It was pointed out to me by a reader that when California passed Proposition 209, some advocates and at least one federal judge did say that eliminating racial preferences for minorities would constitute discrimination. I believe that the actual issue with ballot measures that eliminate racial preferences is somewhat more narrow-- i.e., that minorities are forced to seek favors from the government at the state level whereas others may seek them at the local level, and that such ballot measures eliminate racial preferences even when they are a remedy for discrimination, and the elimination of effective remedies for state discrimination violates equal protection. That is of little matter, however. It is clear that the elimination of legalized prejudice against homosexuals in no way discriminates against heterosexuals; there is no way in which favoritism towards heteros was any sort of a remedy for previous discrimination.)

But there is another problem with Father Rutler's discrimination claim as well. He identifies two aspects of heterosexuality that he says are being taken away by recognition of gay marriage. The "social recognition" of heteros as the fundamental basis of society, and the "legal recognition" of the same. The legal recognition argument is answered above-- taking away legalized discrimination in favor of a particular group does not constitute discrimination against that group. It simply levels the playing field. But I find the "social recognition" claim even more interesting. It is quite true that the social recognition of heterosexuality as fundamental to society is declining. But these gay marriage laws are reflecting that trend, not causing it. Rather, this social recognition is changing because more and more people are rejecting the Catholic Church's teachings that homosexuality is immoral, and that the legal system should be used to stop people from engaging in gay sex. Father Rutler's plea of discrimination is the petulant whining of someone who knows he is losing the culture war; of someone who is coming to realize that something that he views as extremely important, and likely to send us all to hell, is viewed as a basically private matter that is none of his business by ever greater portions of society.

The funny thing is, gay marriage isn't going to change this, except to the extent that gay couples are more visible and people come more and more to respect their right to be who they are. Father Rutler is afraid not only that legal recognition of gay couples may come, but that such legal recognition will cause people to see the basic humanity of gay people that he, and many in his Church, are unable to see. His views are deserving of no sympathy; only pity.

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