Thursday, November 6, 2014

Amicus Brief of Catholic Bishop of Arkansas Calling for Continued Ban on Right to Same-Sex Civil Marriage vs. Amicus Brief of Former Episcopal Bishop of Arkansas

I had promised some time ago (to Chris Morley, in particular, and Chris has kindly reminded me of this promise) to share something about the amicus curiae brief that the Catholic bishop of Arkansas, Anthony Taylor, has submitted to the Arkansas Supreme Court as he calls on the court to uphold the ban on marriage equality that Judge Chris Piazza declared unconstitutional earlier this year. I had promised to compare and contrast Bishop Taylor's statement with that of retired Episcopal bishop Larry Benfield, who also wrote an amicus brief to the state Supremes (in collaboration with the General Synod of the United Church of Christ, Mormons for Equality, Reconstructionist Rabbinical Association, Reconstructionist Rabbinical College and Jewish Reconstructionist Communities, Union for Reformed Judaism, Unitarian Universalist Association, United Methodist Affirmation, Covenant Network of Presbyterians, Friends for LGBTQ Concerns of the Religious Society of Friends, Methodist Federation for Social Action, More Light Presbyterians, Presbyterian Welcome, Reconciling Ministries Network of the UMC, Reconciling Works: Lutherans for Full Participation, and the Religious Institute).

I haven't fulfilled my promise yet for a variety of reasons, chief among them the fact that, while Bishop Benfield's amicus brief was freely available online (pdf file) (see also here) from the time he submitted it, Bishop Taylor's amicus brief had not initially been available online, though a kind reader of this blog obtained a digital copy and sent it to me soon after it was submitted to the Arkansas Supremes. A copy of the latter brief (pdf file) has now been uploaded to the website of the Catholic diocese of Arkansas, and can now be more easily compared with Bishop Benfield's brief.

I've also hesitated to comment on Bishop Taylor's brief because, to be blunt, it's so weak and its arguments so ill-informed and jumbled, I hardly know where to begin to make comments. This brief simply does not deserve serious attention, though the mishmash of prejudice-laden arguments it makes are likely to carry the day with the Arkansas Supreme Court, because arguments laden with prejudice appear weighty in a cultural context in which the prejudice they reflect is widespread — as it is in the bible-belt state of Arkansas, when gay people and their lives are under consideration.

It takes far more courage (and this is true for judges as well as anyone else) to listen seriously to arguments that combat taken-for-granted prejudice than it takes to rubber-stamp arguments that derive from and reinforce taken-for-granted prejudice. Because Bishop Taylor's arguments mirror the kind of arguments made by right-wing evangelicals, who have tremendous influence in the culture (and political life) of bible-belt states like Arkansas, they will be given weight they do not deserve by the Arkansas Supreme Court . . . 

even though they are to a great extent the very same arguments that Judge Richard Posner laughed out of court in the 7th Circuit a few months back.

With those provisos in place, I'm now going to take a stab at fulfilling my promise to Chris and the rest of you to make some comments about Bishop Taylor's amicus brief calling on the Arkansas Supremes to keep in place a ban on same-sex marriage that has been declared unconstitutional by an Arkansas judge. The first point I'd like to make is that, though it insists over and over again that the Catholic community on whose behalf Taylor claims to speak has no animus against those who are gay, but loves gay folks to pieces, it throws every ugly, long discredited, hate-tinged argument imaginable from the right-wing playbook at gay folks who want to claim the right of civil marriage.

It stoops as low as it possibly can stoop, with the claim that allowing same-sex couples to marry will open the door to incest. Though this has not happened in states that have already permitted marriage equality for years now, and no move is afoot to make it happen . . . .

The disreputable, unethical use of the discredited open-the-door-to-incest argument by Bishop Taylor totally overturns his claim to be presenting a position that is not rooted in any animus against those who are gay. And it radically calls into question his claim that the leaders of the Catholic church love gay people and have their well-being at heart.

From the outset, Taylor's amicus brief bases its argument on the claim that "the religious beliefs" of Catholics reject the notion that two people of the same sex can marry

The Diocese has a strong interest in protecting the traditional institution of husband-wife marriage because of the religious beliefs of its members and this institution's benefits to children, families, and society.

And yet, as Bishop Benfield's amicus brief clearly states — and it's absolutely right about this point — recent polls show 57% of U.S. Catholics supporting same-sex marriage. And so there's something duplicitous, to say the least, about the claim that "the religious beliefs" of Catholics reject marriage equality and limit the notion of marriage to husband-wife marriage. A majority of Catholics in the U.S. believe, in fact, that same-sex couples should have the right to civil marriage.

What remains unstated and unaddressed in this opening argument of Bishop Taylor's amicus brief is why the "traditional institution" of marriage is suddenly under assault and demands protection — even to the extent of passing laws that strip a targeted minority group of rights the majority enjoys — when divorce has been a fact of life in American culture for some time now. And when the Catholic bishops of the U.S. are not seeking to throw millions of dollars into campaigns to strip away the right of heterosexual couples to divorce, and are not sending amicus briefs to Supreme Courts in favor of removing the right of divorce from heterosexual couples . . . .

When it's clearly apparent that divorce is a far more serious threat to "the traditional institution of husband-wife marriage" than is same-sex marriage . . . . 

Bishop Taylor's brief goes on to assert that current Arkansas law (the law he seeks to have upheld) defines marrige in a way that maintains "what has been the status quo from time immemorial." And yet the "religious beliefs" of Catholics, which he claims to be defending, are based on Jewish and Christian scriptures which clearly show that the "traditional institution" of marriage included, for centuries per the biblical testimony, polygamy, reinforced by concubinage and slavery. In fact, polygamy was the default definition of "traditional" marriage for many centuries in the mother religion of Christianity, Judaism, and is so enshrined in the bible Christians and Jews read as the foundation of their faths.

A fact to which Bishop Taylor never once adverts as he claims to be defending traditional religious beliefs and traditional views of marriage . . . . 

At the heart of Bishop Taylor's argument is the claim that there is no analogy between the struggle of interracial couples to marry and the struggle of same-sex couples to marry — though Mildred Jeter Loving, the African-American protagonist of the landmark case Loving v. Virginia, has clearly stated that this analogy is, indeed, valid and that the struggle of couples of mixed race to marry in the past is parallel to the struggle of same-sex couples to marry today. 

Bishop Taylor's argument at this point is merely a counterfactual assertion of the because-I-say-so order:

The trial court and others who oppose Arkansas's marriage laws contend that the current fight for equality for same-sex couples is directly comparable to the fight against racial discrimination. Any comparison between Arkansas's marriage laws and racial discrimination is inapposite and irrelevant to the legal issues in quesiton here.

Not only Judge Chris Piazza in Arkansas, but other judges in other states, including Judge Robert Hinkle in Florida and Judge Henry Floyd in Virginia have noted the clear, patent parallel between laws declaring racially mixed marriages illegal and laws declaring same-sex marriages illegal. 

Given the strength of the case for comparing unconstitutional laws prohibiting cross-racial marriages to unconstitutional laws prohibiting same-sex marriages, Bishop Taylor's argument that the definition of marriage should be left to the states comes across as extremely weak — especially when one remembers that this is precisely how miscegenation laws were long handled, until the Supreme Court eventually intervened and noted that, no matter how popular miscegenation laws were, they were unconstitutional laws, because they violated the Equal Protection Clause of the Constitution's 14th amendment.

One other counterfactual argument offered by Bishop Taylor: since marriage is about procreation, the state has an obligation to "steer" men and women into unions where responsible childbearing will take place. How permitting same-sex couples to marry will threaten such "steering" is not explained. Nor does this amicus brief which is all about continuing to enshrine prejudice against a targeted minority group in state law in any way explain why it is not problematic that Bishop Taylor supports the right of non-procreative heterosexual couples to marry, while he wants to deny same-sex couples the right to marry on the ground that same-sex unions are non-procreative — as he claims his argument has nothing at all to do with animus.

By contrast, here's the former Episcopal bishop of Arkansas with the list of other religious bodies I noted in the opening paragraph of this posting: contrary to the claims of people like Bishop Taylor that "religious beliefs" militate against marriage equality, many American religious groups accept, support, and affirm same-sex couples and their rights: and

"[N]o one 'religious' view of even the rite of marriage predominates in America, putting aside the separate question of whether there is a common religious viewpoint on access to civil marriage."

As Bishop Benfield points out, the theology of numerous religious believers and religious bodies is informed by a strong recognition of the inherent dignity of lesbian and gay individuals and the right of these individuals to civil marriage. As noted above, Bishop Benfield points out that these religious believers include 57% of U.S. lay Catholics, who support the right of marriage for same-sex couples. And as he strongly insists, 

No one view speaks for "religion"—even if, contrary to the Establishment Clause, it were appropriate to give weight to religious views in the application of the Constitution's secular promise of equal protection.

He's correct. But I have an inkling that the prejudice-driven argument of the Catholic bishop of Arkansas will carry the day when the state Supremes meet on November 20 to deliberate about these matters. Especially after this week's elections, for which our Supremes waited until they handed down their decision about these matters . . . . 

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