Wednesday, May 8, 2013

Now Delaware, Followed by Minnesota? Commentary by Minnesota Catholic Law Professor on His Changed Mind

As Delaware permits marriage equality on the heels of Rhode Island and Minnesota prepares to vote, I'm struck by Charles J. Reid's testimony about how his mind has changed on this subject. Reid is a Catholic professor of law at the University of St. Thomas in Saint Paul, Minnesota.

As he notes, he has approached the issue of marriage equality with "innate conservatism" as a professor of law with a keen interest in history. In fact, he wrote a series of essays from 2003-2009 arguing that marriage equality is a radical departure from norms that have long obtained in Western culture, and should be rejected.

His reasoning: Roman law and Catholic thinking about marriage via authorities like Augustine lean heavily in the direction of linking marriage to procreativity, and these presuppositions have deeply informed the thinking of all Western cultures about marriage. The presupposition that marriage is primarily about procreation was a "bedrock feature" of American legal thinking up through the middle of the 20th century.

But then American thinking about these matters shifted, and a series of Supreme Court decisions beginning with Griswold v. Connecticut (1965) "severed the connection between marriage and procreation." And though it's possible to read the long history linking marriage to procreation as the primary purpose of marriage as a validation of the conservative argument that the weight of history is against same-sex marriage, for Reid, a shift has occurred in his own thinking as he pays attention to what he calls the "dynamic element" in the history of marriage and not merely the static element--the longstanding tradition claiming that the most significant purpose of marriage is procreation.

That dynamic element is love. The notion that marriage is about the loving union of two spouses as much as it's about procreating is, Reid points out, built into Christian theological traditions and the canonical scriptures of Christianity, though our rather exclusive focus on the procreative dimension of marriage has often caused us to overlook this fact. 

And though, as a Catholic, Reid recognizes the significance of both the procreative and the affective dimensions of marriage, he recognizes that American legal thinking is now following a cultural shift, after various right to privacy cases and the rise of contraception, which sees marriage as fundamentally grounded "on love and commitment, not on procreation."

Because Reid has himself personally witnessed the strength of a number of loving same-sex unions, and because he saw clearly the sacrificial, self-giving love of many gay partners during the AIDS crisis of the 1980s, he has come to recognize that there is no more reason to exclude same-sex couples from the right of seeing their loving unions legally sanctioned via marriage than to exclude opposite-sex couples who are unable to procreate or do not intend to have children from marriage.

As I read this argument, which strikes me as so obvious, I wonder how we've reached a point in American culture (and the culture of other Western nations) today at which the argument is not obvious for many people. For Catholics, after all, Vatican II pointed the way to this argument by officially recognizing that marriage is about both procreation and affective union.

What has happened, I wonder, in the Catholic church following Vatican II that a significant sector of Catholics now resist the definition of marriage in that way for any couples either straight or gay, and want to restrict access to contraception for heterosexual couples--even to see contraception forbidden altogether? How has it happened that we not only did not walk through the door that Vatican II opened for us, but that many of us--including top church leaders--now want to force us to walk backwards through a door that returns the definition of marriage to one in which only procreation matters (though the church hasn't stopped marrying couples incapable of procreation, and church leaders are perfectly aware that the vast majority of heterosexually married couples employ contraception)?

It's clear to me that many commentators, including, notably feminist ones, are absolutely right when they say that the current movement to restrict women's access to contraception and to make the morning-after pill as difficult as possible for many women to obtain has everything to do with the resistance of many males to women's increasing autonomy--one of the primary, watershed developments of the 20th century. The attempt to return marriage to at least a hypocritical-fictional procreative definition, in which we pretend that most people imagine marriage to be all about having children, has everything in the world to do with the ravenous need of many men to try to return women to a pre-20th-century status of subordination and male control.

And so it's not at all an accident that the battle against the morning-after pill, against the inclusion of contraception in the Obama administration healthcare plan, against broadened access to contraception in general, links to the battle against marriage equality. At a fundamental level, these are all battles about the "right" of heterosexual men to control women--and, by inference, gay men whom those men regard as quasi-women. 

They're battles for the continued dominance of heterosexual men in public life, in the political sphere, in the structures of businesses, in the legal arena, in religious governing structures--everywhere, in fact, that power is employed and authority wielded in the world. And the battles will continue as long as many of us assume at some uncritical level that being born with a penis and a heterosexual penchant for using it automatically entitles some members of the human community to unmerited power, authority, and privilege.

(As a footnote to this posting, I recommend Dan Savage's commentary on the irony of what's happening in Minnesota, where Republicans put an initiative on the ballot in 2012 to amend the state constitution to outlaw same-sex marriage though it is already outlawed in Minnesota. As Savage notes, they took this step assuming that, as in 2004, they could herd right-trending voters to the polls to pull the GOP lever across the board.

And then something happened: despite the huge amounts of money that Catholic dioceses across the nation poured into Minnesota, and the huge amounts that the Catholic church in Minnesota itself put into this partisan political effort, Minnesotans put on their thinking caps and refused to be gulled by right-wing activists using gay folks as political footballs to kick around. Many good church people including many good Catholics organized and outsmarted groups like the Minnesota Catholic bishops, the Knights of Columbus, and the National Organization for Marriage, and showed them that this kind of vicious wedge politics using gay people as weapons is increasingly ineffective--including among people of faith.)

(And a second footnote: in Eric Eckholm's New York Times article about Delaware to which the first link above points, Delaware senator Greg Lavelle [R] says he finds it "strange" "have to defend traditional marriage that we have known for thousands of years."

I feel for Mr. Lavelle. I really do. That's exactly what we Southerners said after slavery had been practiced for thousands of years, sanctioned by the bible and by one religion after another, and the world shifted under our feet. We thought it was very, very strange to have to defend an institution now regarded as peculiar which once had been the taken-for-granted and biblically-sanctioned norm everywhere in the Western world.)

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