Christians, Same-Sex Marriage and the Courts

Notre Dame's Richard Garnett on How to Approach Some Thorny Issues

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SOUTH BEND, Indiana, MARCH 5, 2004 (Zenit.org).- Richard Garnett, a legal expert in religious liberty, holds that Christian citizens have a right to pursue the common good through politics and policy.



"It is not so much a matter of imposing a sectarian agenda as it is proposing certain claims about human flourishing, civil society and the common good to fellow citizens," he said.

The associate professor of law at Notre Dame and former clerk for Chief Justice William Rehnquist shared with ZENIT his thoughts on the roles of the courts, Christians and the law in legal battles over same-sex unions, the Pledge of Allegiance, and government funding for theology majors.

Q: What is the future of homosexual marriage in the courts after the recent Massachusetts Supreme Judicial Court ruling mandating that the state give marriage licenses to same-sex couples? Will the U.S. Supreme Court rule on this issue?

Garnett: The United States Supreme Court will not likely address anytime soon the question whether the federal Constitution requires governments to authorize or recognize same-sex marriages.

That said, the ruling by the court in Massachusetts will likely influence the rulings of other states' courts, which will certainly be asked in the not-too-distant future to decide whether their states' constitutions should be understood to require recognition of such unions.

And, we can expect litigation -- in both state and federal courts -- about the meaning of the federal Defense of Marriage Act and the question whether states that do not permit same-sex marriages must recognize same-sex marriages performed in other states.

Unless another court forces the Supreme Court's hand -- by holding, for example, that the United States Constitution requires recognition of same-sex marriage -- that court will likely stay out of the fray as long as possible and allow the matter to "percolate" in state and lower courts.

Q: Many Christians and family policy activists favor a federal constitutional amendment limiting marriage to the union of a man and woman. This would effectively federalize what has traditionally been a state function -- granting marriage licenses. Should defenders of traditional marriage be cautious of stepping on federalism or is this issue just too important to leave to judges and the states?

Garnett: "Federalism" is a complicated concept. On the one hand, it is often understood to mean that experimentation and diversity in policy matters are good things, and that certain issues are therefore best left up to the states.

Certainly, there are good reasons for believing that there are such issues and for resisting the "federalization" of every controversial question. To an extent, the Catholic principle of subsidiarity reflects a similar preference for decentralized decision making.

On this understanding of federalism, the question to be answered is whether marriage is the kind of institution that is well served by a diversity of approaches, or whether its health requires a clear, uniform definition. There is nothing hypocritical or inappropriate about believing that, while many questions and issues call for experimentation, others require uniformity.

Federalism also refers to the legal structure created by our Constitution, in which the federal government enjoys only limited, enumerated powers. Those who support the Federal Marriage Amendment recognize that the United States Constitution, at present, leaves the definition of marriage in the states to the states.

Congress, in other words, lacks the power to "nationalize" the definition of marriage by statute. Supporters of the amendment realize that, given this understanding of federalism, a change to the Constitution would be required to guarantee that marriage continues to be defined and understood, in every state, as the union of one man and one woman.

It is worth noting that even those who are willing to accept experimentation and diversity in the definition of marriage might nonetheless, perhaps reluctantly, support a uniform, national definition, imposed by the amendment, because they believe that decisions by the Supreme Court and other courts will eventually result in a redefinition of marriage for the entire country.

Q: Likewise, should Christians seek to push their political agenda in the courts, or would winning further undermine the democratic process and serve as a Pyrrhic victory?

Garnett: In my view, this is a difficult prudential question. Christians, like everyone else, have a right to try to pursue and promote the common good, as they understand it, through politics and policy. It is not so much a matter of imposing a sectarian agenda as it is proposing certain claims about human flourishing, civil society and the common good to fellow citizens.

In the context of litigation and "in the courts," I do not believe that presenting legal arguments in defense of the traditional definition of marriage should be equated with pushing a political or sectarian agenda.

Certainly, there are thoughtful Christians who believe that we are better served by focusing our attention on the current poor health of Christian sacramental marriage, and by withdrawing from the debate about state-law definitions.

Other, no-less-thoughtful Christians, contend that the traditional understanding of marriage matters not just to Christians, but is closely linked to the well-being of society, and therefore that Christians need to remain engaged in the debate.

Q: What role, if any, do Catholic judges play in promoting Christian values? Can the law be a teacher of morals? Does Catholic social teaching say anything in this regard?

Garnett: Catholic judges, like all judges, should interpret and apply the law. Certainly, Catholic judges have an obligation not to do or cooperate with evil, but I do not believe that their job as judges is to "promote Christian values."

Catholic citizens, however, like all citizens, should do their best to convince their legislators and fellow citizens to enact and support just laws that protect human dignity and promote the common good.

On the question of law-as-teacher, I do believe that the law has a pedagogical function: Not only can the law enforce morals, but it can shape them. This function of law is recognized, I think, in the Catholic social teaching tradition. This is not to say, however, that Christians must or should use the law to prohibit all that is immoral or require all that is moral.

Q: The Supreme Court is also ruling on two religious freedom cases, one involving the Pledge of Allegiance, and the other involving the use of public scholarship money to pursue a theology major. What do these cases mean for the role of religion in the public square?

Garnett: Very recently, in Locke v. Davey, the court ruled that Washington [state] was not required by the Constitution to allow a public-scholarship recipient to major in theology. I participated in the drafting of a brief supporting the position of the scholarship recipient.

The ruling was a narrow one and does not necessarily authorize governments to discriminate on the basis of religion when operating scholarship or school-voucher programs. Still, the ruling is regrettable in that the court failed to vindicate the no-discrimination-against-religion rule that it has emphasized in other recent decisions.

In the Pledge case, the court will likely decide -- bowing, in my view, to public opinion -- that the lower court was wrong in deciding that the recitation of the Pledge in schools constitutes an unconstitutional "establishment" of religion.

However, it is likely that -- in light of several questionable, but applicable precedents -- the decision will be thinly reasoned, and will rely on claims that the term "under God" in the Pledge lacks any religious significance or meaning. It is not clear that Christians should welcome such a "victory."