Tuesday, May 12, 2009

Douglas Kmiec speaks

Kmiec is an interesting character. A conservative Roman Catholic lawyer, he was denied Communion for the "sin" of supporting Pres. Obama (though later reinstated).

He was recently interviewed by the Economist, about six Big Questions. The interview is well worth reading overall, but I am (predictably) going to focus on one of his answers:
Question: You've argued that the state of California ought to get itself out of the business of overseeing marriage. But at the same time, you maintain that "the state has an interest in officially recognising some relationships just to ensure that society is well organised". By what sort of standards should the state decide which relationships to sanction?

Mr Kmiec: As I see it the state has an obligation to observe both equality and religious freedom. It cannot do both if it disavows its finding that sexual orientation is a suspect classification or presumes to perform an act that should be reserved for religious congregations–namely, marry two people in the sight of God in accordance with whatever doctrinal teaching the couple’s voluntarily-chosen church, synagogue, mosque, or temple observes.

This incompatibility became even more obvious when the people of California passed proposition 8, restricting marriage to opposite-sex couples. In a case pending before the California Supreme Court, it was conceded by the measure's advocate that it was not aimed at depriving gay and lesbian citizens of equal rights and benefits, which the state Assembly had already provided to them in statute. That concession seemed unavoidable, especially given the status of sexual orientation as suspect. So the effect of proposition 8–assuming it is upheld as a valid amendment–is solely to make the nomenclature of marriage available only to one class of citizens–heterosexuals. Since the state has the primary obligation of equality for all, the effect of the proposition is to direct the state to issue a license by a name other than marriage to all couples–gay or straight–who apply. The concept of marriage, of course, is then fully remitted to religious bodies who can indulge same-sex marriage within their respective religious communities or not in accord with the religion’s doctrine.
Now, I hadn't even considered that the Court would find this way: that if Prop8 applied, NO ONE gets the title "marriage" for their state-sanctioned union. It's the most sensible answer to separate church from state in this case, but ---oh my. I'd love to see the Other Side hoist on this petard. Aw, well. It'll never happen.

7 comments:

Elizabeth said...

This is the answer I've been advocating since I realized that ministers act as agents of the state when they marry a couple. Talk about confusing church and state! "Rend unto Cesar" Let the state oversee the legal contract whatever they call it. Let couples celebrate their contract in whatever manner they choose. Churches only bless the marriage now; they could continue with whatever rules they choose. Clergy are not required to marry anyone they don't want to now; let that continue. It sure would get rid of a lot of hypocrisy.

Erp said...

It is one possibility for the court though I don't think they will take it (successful recall elections when several million people find out they aren't married anymore would probably be a given).

One problem with 'civil union' is that 'marriage' is not just a state recognized institution but also a national and international recognized institution. Civil unions don't have the same recognition. If we have to change names to make clear the distinction between civil and religious unions, 'civil marriage' should be the preferred choice since that would make national and international recognition easier.

BTW did you see the New York Times opinion column today, "Is My Marriage Gay?".

IT said...

Yes, I did. The confusion around how transgender marriages are recognized was also discussed in a previous post, here. But the NY Times article really nailed it with:

A 1999 ruling in San Antonio, in Littleton v. Prange, determined that marriage could be only between people with different chromosomes. The result, of course, was that lesbian couples in that jurisdiction were then allowed to wed as long as one member of the couple had a Y chromosome, which is the case with both transgendered male-to-females and people born with conditions like androgen insensitivity syndrome. This ruling made Texas, paradoxically, one of the first states in which gay marriage was legal.

A lawyer for the transgendered plaintiff in the Littleton case noted the absurdity of the country’s gender laws as they pertain to marriage: “Taking this situation to its logical conclusion, Mrs. Littleton, while in San Antonio, Tex., is a male and has a void marriage; as she travels to Houston, Tex., and enters federal property, she is female and a widow; upon traveling to Kentucky she is female and a widow; but, upon entering Ohio, she is once again male and prohibited from marriage; entering Connecticut, she is again female and may marry; if her travel takes her north to Vermont, she is male and may marry a female; if instead she travels south to New Jersey, she may marry a male.”
Similar confusion on cross-state recognition comes with marriages to first cousins. Some states allow it, some don;t, but even the states that don't allow it, will recognize a marriage performed under those rules in another state.

JCF said...

(Slightly) off-topic: I just listened to a FamResearchCo f@cker debate on HardBall.

He first said SSM changes things, because it made Catholic Charities get out of the adoption business (in Mass.), "hurting needy children" (para)...

...he THEN said that same-sex parents were denying children the right to live w/ their bio-parents.

Well if the latter's true, then should NOBODY be in the adoption business? (unless kids are STRICTLY orphans---and then we know they'll be f'ed up anyway)

I mean, Criminy! Stoopid 'phobe can't even begin to get his LOGIC straight (so to speak)?!

JCF, disgusted [But earlier in the show, they had a piece on Miss (Discrace to) California, Carrie Prejean. "With enemies like her, who needs friends"? ;-/]

FranIAm said...

I had not seen this and I am so glad that you posted it.

For clarity's sake, his being denied communion was never supported by the church. It was the independent act of an angry priest, so there was no reinstatement, per se. Regardless of the ill informed teachings of some bishops, it is not a sin to support a candidate.

Cany said...

JCF... that is a kicker! Adoptive parents (apparently lgbt or not) DEPRIVE the biological parents from being parents?

You know, only this org (and others by ditto) could be this stupid... can you post the link?

Gads between chromosomes and stupidity, the human race is just frapping doomed! (I am laughing as I type that, BTW, because were it that the religious right idiots actually had a clue or the upper hand, I wouldn't be laughing).

JCF said...

[Cany, go to MSNBC dot com, and look it up, for "HardBall 5-12-09". It might also be on YouTube, which is easier to use]

Another off-topic headscratcher: y'all know of my Love/Hate relationship w/ the Popoids (so dysfunctional, yet I keep going back---usually to EWTN---for more! }-X It's probably the hangover from my "Ecumenism can bring the Whole Church Together!" days. The Dream that kept me in grad school for *14* years. Sigh.)

For reasons unremembered by me, I'm signed up for the "Our Sunday Visitor ENewsletter". OSV, a paper often distributed at RC parishes, ALWAYS parrots the Popoid line.

Hence, I was amused to see their lead story begin thusly:

New law would help women in crisis pregnancies
by Scott Alessi

Amid continuing concern over the strong pro-abortion positions of many political leaders in Washington, pro-lifers are rallying behind a bill that some hope could bring about a drastic reduction in the number of abortions in the United States.

The Pregnant Women Support Act, a bill designed to provide practical resources to pregnant women who may otherwise consider abortion, is gaining support among both pro-life and pro-choice representatives in Congress. The legislation has also received the backing of the U.S. Conference of Catholic Bishops in the form of a recent letter to Congress from Cardinal Justin Rigali, chairman of the U.S. bishops' Committee for Pro-Life Activities.


Did anyone catch that?

Usually, when we who believe women should control their own uteruses argue that Truth, we're smeared as "pro-abortion". And indeed, at the start of the story, that's the Popoid talking point.

But in the very next paragraph, WHEN we're working together, THEN we're permitted the name we call ourselves:

"...is gaining support among both pro-life and pro-choice representatives in Congress."

Too funny! (Y'know, in a pathetic sort of way)