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.
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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.”
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