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Geoffrey R. Stone

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The Illinois Senate, Same-Sex Marriage and the Catholic Church

Posted: 01/03/2013 11:54 pm

Although the Illinois Senate's Executive Committee voted 8 to 5 today to support a bill to legalize same-sex marriage in Illinois, the Senate adjourned without voting on the measure. According to the Chicago Tribune, the Senate's failure to take a final vote came after a furious lobbying campaign by the Catholic Conference of Illinois and Cardinal Francis George.

In testifying against the measure, Springfield Catholic Bishop Thomas John Paprocki, echoing Cardinal George's earlier attack on the bill, insisted that the proposed law "would radically redefine what marriage is for everybody" by undermining the concept of the "natural family." "Neither two men nor two women," he declared, "can possibly form a marriage," and the "law would be wrong if it said that they could." The notion that marriage is between a man and a woman, Paprocki proclaimed, "is given to us in human nature, and thus by nature's God."

In a post on this site a few days ago I challenged the logic and morality of a similar argument by Cardinal George. See here.

What follows is an email exchange I had with a Mr. J.W. after that earlier post:

Professor,

Read you in Huffpo. This is an appeal to your intelligence and sense of legal justice.
Marriage is a vow between a man and a woman. It is a word that measures. As such, law recognizes this fact in nature. You can no more arbitrarily change the meaning of the word "marriage" than you can change the meaning of the word "inch." Such a change renders obsolete (destroys) all other measurements founded on the obvious principle of an inch. It destroys all boundaries written in law. . . .

If we can erase the meaning of "marriage," like a mere line in language, what line can we not erase? The boundary of age? Age is arbitrary! The boundary of freedom? No laws, no words can be counted on to differentiate between, criminal or lawyer, prison or mansion, closet or courtroom. . . .

When [people] pass judgment ("Catholics are bigots") on the Cardinal and his flock, they reveal themselves as LIARS. This is the only real term left for fools tinkering with the absolute fact of marriage.

J.W.
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Dear Mr. W,

Thanks for taking the time to share your views. The problem is that you misunderstand the nature of law. Marriage -- at least in the debates over same-sex marriage -- is a legal concept. Various faiths can decide for themselves whether they want to recognize or not to recognize same-sex marriage. That is entirely up to them. But "marriage" as it is involved in the debate over same-sex marriage is a legal, not a religious, concept. It is defined, recognized and enforced by the state.

Like any legal concept, "marriage" can evolve over time. Indeed, that is the very nature of law. As scientific, economic, social, political, cultural, moral and psychological understandings change over time, so too do legal concepts.

The "right to vote" was once defined as applicable only to propertied white men over the age of 21. Then it was redefined to include all white men over the age of 21. Then it was radically redefined in 1865 in the Thirteenth Amendment to include black men. Then it was radically redefined again in 1920 in the Nineteenth Amendment to include women. Then it was redefined yet again in 1971 to include all persons over the age of 18. The definition of the legal concept "right to vote" evolved over time.

Indeed, this is true of almost every legal concept. The meaning of the word "search" in the Fourth Amendment, once defined as a physical intrusion into a physical space, was redefined in 1968 after the world discovered wiretapping and parabolic microphones.

Similarly, the meaning of the Fourteenth Amendment's concept of "equal protection of the laws" changed profoundly when the Court held that "separate but equal" was not "equal" and that women could not constitutionally be prohibited from being lawyers.

Such familiar legal concepts as "insanity," "property," "liberty," "contract" and "speeding" have all evolved over time. Indeed, the meaning of "marriage" itself has changed. At one time, most states had anti-miscegenation laws that defined marriage as a contract between two people of the same race. And, of course, the legal age limits for marriage have also changed over time.

Anyway, you get the point. As much as you might want to cling to a particular, traditional definition of "marriage," that is simply not how the law operates. Tradition is useful, but it is never determinative. What matters is not what is traditional, but what is right.

All best.

Geof Stone
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Professor,

Thank you for your conversation. So, lets skip the evolving legal concepts and turn to the fact that Catholics will again be barred from participation in legislation because of their faith, as you "cling" faithfully to the modern progressive legal concepts. It is a convenience to ignore that separation of Church and state runs both ways.

It seems like Catholics are headed to the same fate as Thomas More. As with Henry VIII, many heads will roll to accomplish the latest progressive legal interpretation of marriage.

Regards,

J.W.
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Dear Mr. W,

It's fine for Catholics to participate fully in politics, but their arguments, as for all citizens, should not consist of trying to impose their religious beliefs on those who don't share them. If there are good policy reasons not to recognize same-sex marriage, then we should discuss them. But religious belief is not a policy argument.

And no "heads will roll." No Catholic priest will be required to perform a same-sex marriage, no Catholic will be compelled to enter into a same-sex marriage, and no Catholic will be prohibited from entering into an opposite-sex marriage. In fact, the issue of same-sex marriage has nothing to do with the rights of Catholics, except insofar as they want everyone else to live according to their own religious beliefs.

Geof Stone

Postscript: Not only did no Catholic heads roll today in the Illinois Senate, but Cardinal George, Bishop Paprocki and the Catholic Conference of Illinois once again "rolled" the will of the people of Illinois. But take heart, for this too shall pass.

 
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