SCOTUS's Decision and the Bishops' Response

by Michael Sean Winters

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The Supreme Court ruled that same sex marriage is a constitutional right yesterday. In his dissent, Justice Antonin Scalia faulted the court for an opinion that lacked even a “thin veneer of law.” Scalia is wrong. The equal protection arguments in the majority decision are not to be so easily dismissed. Reading the opinions and the dissents yesterday, I could not escape the thought that if the Church, and others, had supported robust civil unions fifteen years ago, a legal remedy could have been found that both guaranteed equal protection and also acknowledged, perhaps it is better to say embodied, the idea that the procreative possibility of that unique form of human friendship we call marriage makes a traditional marriage distinctive, and distinctive in a way that warrants societal recognition. Alas, that train left the station fourteen years ago.

Every Catholic should find troubling these words in the majority’s decision: “Four principles and traditions demonstrate that the rea­sons marriage is fundamental under the Constitution apply with equal force to same-sex couples. The first premise of this Court’s rel­evant precedents is that the right to personal choice regarding mar­riage is inherent in the concept of individual autonomy.” The overheated sense of human autonomy is at the root of most of the nation’s problems from environmental degradation to the reckless irresponsibility of the investor class to the breakdown of communities as social capital flees. And, of course, for us Catholics, marriage is not only about personal choice, it is about participating in God’s plan as co-creators. This same sense of autonomy stalked the majority’s decision in Planned Parenthood v. Casey, which yielded an even more regrettable outcome.  

Of all the opinions, the one I most admired was that of Chief Justice Roberts. I admit that part of my admiration stems from context. Earlier in the week, the Chief Justice upheld the subsidies provided by the Affordable Care Act to those working poor who need them to get insurance coverage. He did so in large part because of how he construed the statute but he also deferred to the legislative intent of the Congress. Similarly, in yesterday’s case, Roberts said that while he does not discern a constitutional right to same sex marriage, neither does he discern a constitutional impediment: It is up to the people, acting through their legislatures, to decide the issue. He gets high marks for consistency. There is no way around the observation that the majority, yesterday, ignored the will of the people expressed in those states that had not adopted same sex marriage. Yes, the courts traditionally have a role in defending the rights, usually of a minority, against the will of a hostile majority. And, yes, some of the majorities in certain states really are hostile to gays and lesbians. But, that role as defender is usually invoked only when the equal protection claims are clear in the law, and have been for some time.

I am not a legal scholar. I have spent more time than I ever imagined reading legal opinions since I began this job, but I look forward to reading from more learned sources in the days ahead. Of greater interest to me than the opinions themselves were the reactions by various bishops throughout the United States. It was a mixed bag.

The United States Conference of Catholic Bishops issued a scorching statement, signed by their president, Archbishop Joseph Kurtz. It was deeply unfortunate. The analogy to Roe v. Wade is likely wrong. The statement that the decision is “profoundly immoral and unjust” would have benefited from an acknowledgement that for many people, the decision is a vindication, a sign that they are, for the first time, truly equal before the law. But, most disturbing in Archbishop Kurtz’s statement is what is not there: Not so much as a nod to the Church’s teaching that all persons, including gays and lesbians, are worthy of respect and possessed of inherent dignity. No reminder that Christians are called to civility. One gets the impression that the staff at USCCB HQ plans to dig in.  The tone is petulant, and petulance does not become a minister of the Gospel.

My colleague Tom Roberts has already reported on the letter Cardinal Donald Wuerl sent to his priests. (A virtually identical letter to all Catholics was also posted on the archdiocesan website.) I encourage everyone to read the cardinal’s letter. It is clear that +Wuerl cedes not an iota of the Church’s teaching on marriage. In fact, he gives a brief and beautiful restatement of that teaching. It is also clear that he grasps that the law of the land has changed and the Church has better things to do than spend millions of dollars on law suits to prevent an accountant at Catholic Charities from getting dental coverage for his same sex partner. We know what we mean by marriage and spouse, but for purposes of the law, the Church will abide by the law. Not every employee of the Church is in a ministerial position. If they are, the Supreme Court’s ruling in Hosanna Tabor protects the Church’s interest in its ability to preach the Gospel.

Cardinal Wuerl also reminds all who read his letter that the Church welcomes everyone. He writes:

Are people who share our faith but struggle with the Church’s understanding about marriage still welcome at Church? Because Jesus came to save all people, all are invited to be a part of God’s family – his Church. Faithful to her Lord and Founder, the Church welcomes everyone. It is the home for all who seek to follow Jesus as his disciple. This welcome is extended to everyone: married couples with children, unwed mothers and fathers, the single unmarried, couples who struggle with infertility, men and women with same-sex attraction, individuals facing gender issues, those whose marriages have broken down and suffered the trauma of divorce, people with special needs, immigrants, children born and unborn, the young, seniors, and the terminally ill, sinners and saints alike. If the Church were to welcome only those without sin, it would be empty. Catholic teaching exhorts every believer to treat all people with respect, compassion, sensitivity, and love. All are called to walk with Jesus and so all who try to do so have a place in the Church.

These are the words of a pastor. These are words that should have been included in the statement from the USCCB.

Other bishops issued fine statements, including Archbishop Wilton Gregory of Atlanta, Archbishop Gregory Aymond of New Orleans, and Bishop Gregory Hartmayer of Savannah. (h/t to Rocco for the links.) But, I especially wish to call attention to the statement issued by Bishop Robert McElroy of San Diego. It reads in full:

Today the United States Supreme Court ruled that the historic definition of marriage as a relationship between one man and one woman is unconstitutional.

The Catholic Church, along with other faith traditions, teaches that the nature of marriage and the family cannot be redefined by society, as God is the author of marriage and its corresponding gift of co-creating human life. The legal recognition of marriage is not only about personal commitment but also about the social commitment that husband and wife make to the well-being of their children. It is for this reason that it is important for government to give a unique status to marriage between one man and one woman both in law and in public policy.

The Catholic community of San Diego and Imperial counties will continue to honor and embody the uniqueness of marriage between one man and one woman as a gift from God--in our teaching, our sacramental life and our witness to the world. We will do so in a manner which profoundly respects at every moment the loving and familial relationships which enrich the lives of so many gay men and women who are our sons and daughters, our sisters and brothers, and ultimately our fellow pilgrims on this earthly journey of life. And commanded by the Gospel of Jesus Christ we will continue to reach out to families of every kind who are encountering poverty, addictions, violence, emotional stress or the threat of deportation, and to attempt to bring them faith and care, service and solidarity.

Couldn’t have said it better myself. +McElroy is especially to be commended for using the phrase “gay men and women” rather than the contorted “persons who experience same sex attraction.” It is disrespectful to not refer to people in the manner they refer to themselves, especially with a phrase that is almost Kantian in its separation of such an intimate part of a person’s personality from the person.

The dissents in the case, and some of the statements by the bishops, warn about the implications for the religious liberty of the Church that portend because of yesterday’s ruling. I do not doubt some will arise but I also think such lawsuits will be far less likely to be filed in the first place if more bishops adopt the respectful tone evidenced in the statements by Cardinal Wuerl, Archbishops Gregory and Aymond, Bishops Hartmayer and McElroy. I do not know how many gay men and women plan to get married, but I do know that the issue of same sex marriage has always been about more than marriage. It has been about respect. We Catholics should not expect respect for our beliefs if we are disrespectful towards those with other beliefs.

Yesterday, the Supreme Court issued a decision. The sky did not fall. Young men and women will still fall in love, get married, and make babies. The Church will still be there to accompany them. The fact of sexual difference is not going away anytime soon. But, as in the referendum on this issue in Ireland, yesterday’s decision is a wake up call for the Church. Are we going to continue to fight same sex marriage in the courts and in our words, to the exclusion of other more pressing issues? Are we going to continue to let the egalitarian, and largely secular, left set the Church’s agenda? Or are we going be about our business of accompanying people, all people, and especially married couples, with a teaching about marriage, and with the grace of the sacrament, and with the loving support of the Christian community, all of which are as beautiful today as they were at 9:59 a.m. yesterday. 

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