Friday, February 28, 2014

Liberty Is Liberty, and Love Is Love

The latest chapter in America's ongoing struggle over how to deal with teh gheys in public life has come to a predictable close. Arizona's proposed law, which would permit business owners to refuse to participate in activities which would conflict with their religious beliefs, was met with the Governor's veto.

Although such a law could apply in a variety of situations and to those of multiple faiths, it was fairly obvious that the bill was passed to prevent Christian business owners from having to lend their services to same-sex marriage ceremonies. Multiple lawsuits by aggrieved same-sex couples in other States, which consider sexual orientation a protected class in their public accommodations laws, have resulted in rulings against Christian business owners. Arizona has no such law on the books, and the bill's supporters sought a preventive measure to circumvent such litigation. But for what it's worth, much of the discussion surrounding SB 1062 treated "religious freedom" in nondenominational terms. What is the Catholic response to those with same-sex attraction, and how do Catholics live out their faith in the public square?

The Catechism of the Catholic Church specifically addresses this issue:
The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination, which is objectively disordered, constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided. These persons are called to fulfill God's will in their lives and, if they are Christians, to unite to the sacrifice of the Lord's Cross the difficulties they may encounter from their condition. [Emphasis added.]
For those ignorant of Catholic teaching, such a pronouncement must come as somewhat of a shock. Isn't the Catholic Church, along with the lion's share of organised religions, virulently anti-gay? The Church has been a driving force behind anti-same-sex marriage initiatives, after all. (In fact, the current Archbishop of San Francisco, in a bit of brilliant trolling on the part of Pope Benedict XVI, was one of the prime movers behind Proposition 8.) But this charge of bigotry does not appear to square with the many high-ranking Catholic officials who are speaking out against harsh anti-homosexuality laws elsewhere, even contradicting their brother Bishops who support such laws. (And this tolerant attitude isn't even that new.)

That is because of the word "unjust". That modifier implies that "discrimination" is not an inherent evil but rather, a form of decision-making in which one rules out certain options that can still be abused. An example of this would be the Sacrament of Holy Orders. The Catholic priesthood is restricted to men, a clear example of discrimination against women, but it is not unjust discrimination because Tradition holds that women are not capriciously barred from ordination, like one might unfairly forbid women from, say, holding political office. Tradition holds that women are unable to be ordained because it is an ontological impossibility, just as men are unable to bear children. (And delving into that topic is another post entirely.)

At hand is not whether the Catholic Church must recognise or even solemnise same-sex unions. Unlike, say, the British, we are not an Erastian nation. There is no American State Church. But what is at hand is whether private business owners, who willingly sell their wares to the general public, must do so even if that means providing material aid to ceremonies to which they are deeply opposed, on religious grounds.

No good Catholic could justify turning away a customer simply "because he is gay". That requires a particular animus against the human person which the Church categorically condemns. The concern is when a Catholic feels compelled to avoid the sin of scandal, which is sort of like guilt-by-association, insofar as participation in a sinful act is tacit approval of said act. This isn't the first time the Church's battles in the public square have been misrepresented. Remember when the NHS contraception/abortifacient mandate was portrayed as the Church "taking away women's birth control"? It was nothing of the sort; it was about not forcing the Church to pay for women's birth control. Which are, like, totally different things.

It is very difficult to defend, even from a disinterested, intellectual position, any sort of discrimination. "Discrimination" as a concept has a somewhat deserved stigma attached to it, because it was not long ago that, despite slavery having been outlawed for nearly a century, blacks were treated as second-class citizens to whites — and often for supposedly religious reasons. Take the words of Judge Leon M. Bazile, from January 6, 1959:
Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.
Reading that hurts, and it shocks the senses knowing that many of our parents were alive when such words were written — by a man of the law, no less. And keep in mind that approval of interracial marriage only reached a majority of Americans in 1997. Thirty percent of Americans 65 and older still do not approve. The Supreme Court's 1967 decision Loving v. Virginia invalidated all State-level anti-miscegenation laws, but when Alabama formally put up a ballot measure amending their constitution to remove the anti-miscegenation statute, opposition still topped 40 percent. Oh, and this was in the year 2000, by the way.

Because of this sordid history, gay rights proponents frequently sing the refrain, "The same people who opposed racial integration on religious grounds 50 years ago oppose LGBT equality on religious grounds today!"

Not so fast.

Yes, there were plenty of Christians who wrongfully used their religious convictions to justify the unjustifiable. A majority of Americans have been Christian since before the country's inception. It logically follows that if a majority of Americans were racist, then a majority of Christians were racist and either ignored the parts of the Bible which would suggest that's not such a good idea, or they twisted their faith in order to fit their own agenda, like Judge Bazile.

My friend and colleague Bethanie Ryan gave a brilliant analysis of why the interracial marriage versus same-sex marriage debate is so flawed in a Catholic context. As she notes, the first interracial couple in Louisiana was married in a Catholic church. The Church married interracial couples even where their civil marriages were illegal, and Catholics and blacks had a common brotherhood in their victimisation by the Ku Klux Klan. Indeed, in 1921, Father James Coyle was shot and killed in Birmingham, Alabama by a Klansman for marrying his white daughter to Puerto Rican man. (Of note: Not only was the Klansman found not guilty, his lawyer was Hugo Black, who would later join the Klan himself, then sit on the Supreme Court and later go on to author Engel v. Vitale, which banned classroom prayer in public schools.)

And before this dead horse is sufficiently beaten: BuzzFeed also addressed the issue of the Church's support for interracial marriage during the Loving case, albeit from a pro-gay perspective, and the College of Cardinals is more diverse than ever, accurately reflecting the worldwide Catholic family.

Returning to 2014, the major difference between the Jim Crow laws of half a century ago and proposed legislation today is not merely one of comparing protected classes (race versus sexual orientation). Jim Crow forced businesses at the State level to offer separate facilities and mandated racial discrimination. Title II of the Civil Rights Act of 1964 then imposed a Federal nondiscrimination standard that not only invalidated those laws but forced all businesses to offer integrated facilities. SB 1062 and similar legislation would not have instituted a Jim Crow régime (or, uh, the Third Reich, really?) for gays and straights but was actually a libertarian approach to private-sector nondiscrimination laws, albeit one specifically requiring a religious objection to participating in an event, such as a same-sex marriage. (And religious exceptions are funny things: The Amish don't have to purchase health insurance because they oppose all insurance on religious grounds and have an alternative system, but Catholics still have to take part in funding contraception and abortifacients against their consciences. And atheists who oppose the individual insurance mandate on Constitutional or other rational or secular grounds are just as SOL.)

"Religious grounds" is a rather broad standard. The failed Arizona law made no mention of same-sex weddings; it merely applied the Federal Religious Freedom Restoration Act at the State level. What is also noteworthy is that the bill also made no mention of any one protected class of people. Sexual orientation may have been the factor behind the legislation, but theoretically, any group could be affected by such a bill (say, a Muslim cab driver refusing to ferry a passenger with a dog). In short, the bill wasn't about gay people; it was about gay weddings.

Still, it is difficult to permit discrimination based on sexual orientation when the issue of racial discrimination is largely settled. Look at what happened when then-Senate candidate Rand Paul expressed reservations from a Constitutional perspective about Title II. He had to clarify his comments repeatedly to avoid being tarred with a racist brush. It is easy to discuss the role of the State in much matters in the abstract, as a matter of freedom of association, but when the wounds of very real, tangible hatred enforced by the State against a beleaguered minority are still raw, it can be hard to avoid emotionalism, no matter how reasoned one's legalism.

Pictured: Literally the exact same thing as refusing to bake a cake for a gay wedding.
But should tolerance be enforced at the point of a gun? (Or more accurate but still onerous, the end of a judge's gavel?) Is forced tolerance really tolerance at all? The argument that dramatic Federal intervention was needed in the South to forge at the very least a begrudging détente amongst the races is far stronger than the idea that the State must enforce similar measures on behalf of homosexuals, because whereas attitudes of white Americans towards black Americans were overwhelmingly negative half a century ago, tolerance and even outright acceptance of homosexuality has taken hold in record speed today. Thus, the argument for forbidding private discrimination against sexual minorities is one of moral principle. And here, we have a culture clash, because the Church does not conform to society. It is the Church who demands society conform to her.

The marriage debate is already lost in the civil sphere. It was lost decades ago as the divorce rate skyrocketed, and Christians did not fight it with nearly the ferocity they do same-sex marriage today. Liberal evangelical (yes, that's a thing) Kirsten Powers notes — correctly — that heterosexual couples who enter into second marriages after divorcing are also violating Scripture. So, she argues, serving those couples should also trouble the consciences of Christian business owners. It's worth thinking about, especially for Catholics, since the Church has held firm against divorce (and contraception, and abortion, and...), even as multiple Protestant denominations have caved.

As for my own view, it is closest to that of Senator Paul (he did wind up winning that election quite handily). If the State is removed as the enforcer of equality in the private sphere, it permits that much more liberty to run the marketplace. This is not an alien idea, even supporters of same-sex marriage and — Gasp! — gays themselves have taken such a position or at least expressed concerns about the frivolity of many of these lawsuits. (I also highly recommend Matt Walsh's input on the matter.) Religious liberty exceptions sound nice, but they are problematic insofar as their parameters are arbitrary and often next to nonexistent. (Case in point: A church which uses its parish hall to host functions as a source of revenue is not exempted from renting out their facilities to same-sex couples under Washington State law. It's right in Section 7.)

G.K. Chesterton once observed that fallacies do not cease to be fallacies because they become fashions. He was spot on. The Church cannot compromise her understanding of marriage and family, and neither can the faithful. But as a pluralistic society, the desires of those who do not follow the Church's teachings are not so easily avoided or dismissed. It would do us all good to have empathy for one another, even if we believe that we are being wronged. And that goes for same-sex couples, too.

There are plenty of businesses that wish to cater to everyone and will happily take the money that would have otherwise gone to their competitors. Adding additional lawsuits to our overly litigious culture does nothing but harden hearts. It can shock one's system in our soft society of no-touch football and participation trophies when one is seemingly denied justice, but that is the same feeling of the small business owner who, after building himself up over many years and contributing to the community, is suddenly a pariah and a bigot for daring to question a scenario that he likely never dreamt he would have encountered upon entering the marketplace.

Pope Francis, in addressing the question of the homosexual person, famously asked, "Who am I to judge?" But it was a qualified statement; his preceding words were if that person "searches for the Lord and has good will", then who is he to judge. Both sides in the debate over marriage in the public sphere ought to take his words to heart and act accordingly.
The best way to handle denial of public accommodation.
Further Reading:

The Church's full teaching on sexuality, using the Sixth Commandment as its main reference point, can be found in the Catechism of the Catholic Church in four parts: I, II, III, IV (and in summary)

Theology of the Body (1979-84) is a series of lectures delivered by Blessed Pope John Paul II. It is a brilliant and comprehensive examination of Catholic teaching on sexuality — there are 129 lectures in all.

"On the Pastoral Care of Homosexual Persons" (1986) is the Church's official instruction to the clergy on the matter, authored by Cardinal Joseph Ratzinger, the man who would eventually become Pope Benedict XVI.

"Always Our Children" (1997) is the American Bishops' pastoral message to the parents of gay children, encouraging that they love and accept them and also discussing the complex nature of sexuality and calling for renewed focus on those afflicted with HIV/AIDS.


  1. Tl;Dr

    In all seriousness, my priest basically said this when I mentioned I wasn't hetero. The catechism is something I really should be reading instead of Aquinas and Chesterton.

    But, in wonder when there is a point in which one will indeed be required to abstain from treating a customer or client differently in the best interest of others or another.

  2. Catechism is always the way to go.
    Really enjoyed the article.
    It always "gets my goomies" when divorced couples and even *gasp* artificial birth control using couples aren't scolded nearly as much about upholding the sanctity of marriage. Down here we call that "cherry picking".
    Well done.