What is the true basis for our laws? Do we just make them up as we go, according to need and the winds of change? It’s a fascinating study and one that you could charge into starting with Archbishop Wenski’s insights. The overarching concern is for law regarding same sex marriage but the Archbishop opens up the subject into much wider fields.
Homily preached April 23, 2013 at Gesu Church by Archbishop Thomas Wenski during the annual Red Mass for members of the Miami Catholic Lawyers Guild.
“If you call a tail a leg, then how many legs does a cow have? Four, because calling a tail a leg doesn’t make it one.” So said Abraham Lincoln, thus showing a greater grasp of the reality of things than many in our culture today, including one famous Harvard law school graduate and possibly even a majority of the Supreme Court, should they decide to overturn DOMA and California’s Proposition 8 and thus effectively impose “same sex marriage” on the nation.
“Same sex marriage” has been advanced as a cause for equality - by providing the benefits to homosexual couples that have been afforded historically to married heterosexual couples. Not to give these benefits is alleged to be discriminatory. Of course, as fair-minded citizens we do hold that no one should be denied a job or a house; no one should be subjected to harassment or bullying because of one’s apparent sexual orientation. We should oppose any and all unjust discrimination.
But, that the state recognizes and favors the marriage of one man and one woman as a natural fact rooted in procreation and sexual difference is in no way unjust to homosexual couples any more than it is unjust to heterosexual couples who cohabitate without the legal benefits and protections of a civil marriage. The state has long provided benefits and concessions to encourage or reward behaviors that serve the common good of all. For example, businesses regularly receive tax breaks if they create more jobs in a particular area; and returning veterans receive benefits that those who did not serve do not.
The state, in historically recognizing the traditional understanding of the institution of marriage as a union of one man and one woman, does so to encourage and support, as social policy, heterosexual marriages because such marriages best provide the optimal conditions for the raising of future generations of its citizens. And all honest social research as well as anecdotal evidence shows that children are “hard-wired” to be best raised by a mother and father who are married to each other in a low conflict relationship. To state this fact is in no way to wish to disparage those parents and often grandparents who at great sacrifice raise children in alternative situations. They need and deserve our support. But, for millennia, marriage between one man and one woman has been promoting what the social scientists call “kin altruism”; in other words, it’s about what’s best for children. Only in the marriage of a man and a woman can “two become one flesh” (cf. Genesis 2: 24) and thus create a conjugal society – or family – which provides that the individuals who give life to children should be the ones to raise them in a bonded and enduring relationship.
The push for so called same sex marriage, if it prevails, will fundamentally change this– and in doing so will open a Pandora’s Box of unforeseen and, to be sure, unintended consequences – as the more permissive no-fault divorce legislation did some 40 years ago. Rather than see the institution of marriage as expressive of the complementarity of sexual difference between a man and a woman, ordered for the raising of children, the proponents of so-called same sex marriage would now redefine marriage for all as existing solely for the gratification of two (and why just two?) consenting adults.
There is little reason for optimism. We have gone from "We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights….” — an affirmation consistent with the legacy of our Judeo-Christian heritage — to the Supreme Court’s Casey v. Planned Parenthood. In Casey v. Planned Parenthood, the court compounds the folly of Roe v Wade and virtually establishes a new secular religion based on the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."
This endorsement of moral relativism in Casey v Planned Parenthood does not inspire much confidence that the Court will decide – based on the reality of things – in favor of traditional marriage as a union of one man and one woman. At any rate, no matter how the court rules, our country’s – and the West’s - culture war will no doubt continue.
One side of this war holds for a radical autonomy by which truth is determined not by the nature of things but by one’s own will. For this side, same sex marriage is only its most current poster child. In this view, modernity is defined as believing that one’s individual desires are the locus of authority and self-definition.
The other side, informed by the Judeo-Christian heritage which has had – at least up to recently, influenced so much our American jurisprudence - holds that men and women are not self-creators but creatures. Truth is not constructed, but received, and it must reflect the reality of things. As Lincoln said, “Calling a tail a leg doesn’t make it one.” Or, as the Book of Genesis says: “Male and female, He (God) created them.” (Genesis 1: 27)
The stakes are high. Blessed John Paul II said at the United Nations in 1995: “Detached from the truth about the human person, freedom deteriorates into license in the lives of individuals, and in political life it becomes the caprice of the most powerful and the arrogance of power. Far from being a limitation on freedom or a threat to it, reference to the truth about the human person – a truth universally knowable through the moral law written on the hearts of all – is, in fact, the guarantor of freedom’s future.”
Indeed, if any reference to a common truth founded in natural law is ruled out, it still remains necessary to lay down a minimum of norms if human beings are to live together. The only recourse is that of judicial positivism: to seek procedural rules that guarantee equal opportunity for every position represented at the table. But this ultimately leads to a dead end. And our pluralistic society has reached this dead end when it seems to be based precisely on a common agreement to set aside truth claims about the good and to adopt instead relativism governed by majority rule as the foundation of democracy.
The only justice that such a society can attain would supposedly require all parties to give up any claim to absolute truth about the good. When a democracy bases itself on moral relativism and when it considers every ethical principle or value to be negotiable (including every human being's fundamental right to life), it is already, and in spite of its formal rules, on its way to totalitarianism. The might of right quickly becomes might makes right.
Our nation’s founders built better than they knew – and better than we appreciate today. Their vision of freedom was one of ordered liberties, a vision remarkably congruent with Catholic social thought. St. Thomas Aquinas – the great theologian of the 13th century – would have been very comfortable in the presence of Jefferson, Adams and Monroe. And St. Thomas More, the patron saint of lawyers and politicians, who described himself as “the King’s good servant but God’s servant first,” would have found in Abraham Lincoln a kindred soul. They found meaning in the reality of things, the reality of the created order – an order accessible to human reason. They would certainly concede that both the State and the Church, each within its respective sphere, might regulate marriage; but they would never pretend to usurp the authority to create the meaning of marriage.
As Catholic Christians and officers of the court in these United States of America, you do well to recall St. Thomas More’s example and to seek his prayers. May you be, in his words, “for the greater glory and honor of God and in pursuit of His justice…able in argument, accurate in analysis, strict in study, correct in conclusion, candid with clients, honest with adversaries, and faithful in all details of the faith.”