Preliminary Comments about DOMA Ruling

supreme_court_doma_prop_8_gay_marriage_ruling_june_26_2013_1I have been thinking and praying about what and when to say something about this week’s decisions from the US Supreme Court. On Tuesday, Civil Rights in this country were ostensibly thrown back fifty years into a very unsettling and precarious place in certain parts of the country with well-known and documented histories of racism and voter discrimination. On Wednesday, Civil Rights, this time for LGBT persons, were advanced in an important pair of decisions from the high court. It has been a crazy week for human rights indeed. I still don’t think I’m ready to say all that I want and need to say about these topics, sensitive as they are.

I do feel that I must say something and do so briefly, which is why I will simply say this: while the Tuesday decision might rightly be called “tragic” for its short-sightedness and lack of historical appreciation for the crimes and abuses against women and men of color in the south, the decisions on Wednesday were absolutely not tragic. That anyone would say that — and this quote has circulated widely in subsequent days — strikes me as quite appalling. Wednesday’s decisions, as best I can tell, affect no one for the worse. They do not threaten different-sex marriages. They do not ruin the foundations of our society. They do not do anything but provide another step to guarantee that all human beings have the right to be treated like other human beings in the United States. We’ve come as a society to recognize, oftentimes too slowly, the need for these legal protections with regard to sex, race, and now sexual orientation — all things inherent to a person and outside one’s control. There are theological and other important considerations that can be shared (for example, how many people up in arms actually know the history of the Sacrament of Marriage in the Western Church? You’d be interested to find out more about its development!), but I want to simply add that Vatican II’s Gaudium et Spes reiterates the need the church has to recognize the legitimate role of governments to protect the rights of all people regardless of this inherent characteristics of their personhood:

If the citizens’ responsible cooperation is to produce the good results which may be expected in the normal course of political life, there must be a statute of positive law providing for a suitable division of the functions and bodies of authority and an efficient and independent system for the protection of rights. The rights of all persons, families and groups, and their practical application, must be recognized, respected and furthered, together with the duties binding on all citizen (no. 75).

All persons, families, and groups!

Enough for now. At this point, I wish to offer a reference to a very well considered piece that appeared online at NCR by Michael Sean Winters. Here is the beginning, I encourage you to read the whole post:

The Supreme Court’s twin decisions in the battle over same-sex marriage on Wednesday were momentous, to be sure. But Wednesday was not “tragic,” as the statement from the USCCB stated. Nor were the court’s decisions victories in what Harvey Milk’s nephew unfortunately termed the “defining civil right issue of our time,” a claim that was downright offensive coming within 24 hours of the Supreme Court’s far more objectionable decision to gut the Voting Rights Act. Turns out, old-style civil rights remains the defining civil rights issue of our time.

In his majority opinion, Justice Anthony Kennedy wrote, “The state’s power in defining marriage is of central relevance to this case.” Indeed. And there is the rub for me. I do not understand why some people, including some bishops, are all worked up about same-sex marriage when the fact that the state, not the church, has the power to define civil marriage is well-established in American legal culture, and it was so long before anyone ever talked about gay marriage.

A couple gets married in a Catholic church. The couple is heterosexual and they pledge themselves to each other forever. Both parts of the equation — the complementarity of the genders and the indissolubility of the marriage bond — are central to the sacrament. But as we all know, for many years now, even before no-fault divorce made it easy, Catholics married in the church were free to pursue civil divorce and throw the ” ’til death do us part” pledge overboard. Heterosexual opponents of homosexual marriage would be more convincing if they had not made such a hash of traditional marriage in the first place…

Read the rest here: “Marriage, the Church and the Supreme Court.”

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13 Responses to “Preliminary Comments about DOMA Ruling”

  1. gregrowles Says:

    Great read. Good explanation, not from USA so the whole SCOTUS thing amazes me. Thanks

  2. Marty Rendon Says:

    I think Michael Sean Winters has it right when he emphasizes the distinction between civil marriage and the sacrament of matrimony. That approach fosters a calm understanding of what is at work here. Thanks for your great blog on this.

  3. I think there is an over-reaction to the voting rights act section 4 changes. This article from the WSJ makes it clear that the only change is that the voting rights records used to justify section 4 were relevant in the ’70s but are not relevant today. If there is a recurrence of biased treatment of minorities of any sort, then section 2,3 and 5 are still in play and on the basis of up to date and proven bias can be re-intituted against a State to ensure they observe the rights of all eligible voters.

    “If you are a well-informed observer of the U.S. Supreme Court, here’s what you probably know about yesterday’s ruling in Shelby County v. Holder: Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices and authorizes private parties and the Justice Department alike to challenge them in court, remains the law of the land.
    The ruling affected Section 5, which forbids certain states and localities from making any changes in electoral rules–including but not limited to legislative redistricting, changes in voting machines and establishment of identification requirements–without prior approval from the Justice Department or a panel of federal judges.
    If you’re following very closely, you know that Section 5 also remains the law of the land. The provision the high court held unconstitutional was Section 4, which establishes a formula for determining which jurisdictions are covered under Section 5. The problem with Section 4 was that its factual findings were ridiculously outdated. It mandates discrimination against states and local jurisdictions based on registration and turnout statistics from 1972 and earlier years.
    Congress could enact a law replacing Section 4 and bringing the preclearance criteria up to date. The conventional wisdom is that that won’t happen any time soon, since Republicans have the majority in the House and Democrats in the Senate.
    Roll Call’s Emma Dumain notes that House Majority Leader Eric Cantor has expressed interest in rewriting Section 4. Even so, this column is in agreement with the conventional wisdom. Democrats, as cynical exploiters of black racial fear, have no interest in constructive action here.
    Chief Justice Roberts
    Parochial concerns as well as partisan ones could make compromise difficult. “As the Chief Justice noted in oral argument in Shelby County, the state with the largest gap between white and black voter turnout is Massachusetts,” The Wall Street Journal observes in an editorial. Would Elizabeth Warren vote for a new definition that stigmatized the Bay State as a practitioner of Jim Crow?
    But even if you’ve been following the matter closely, there’s something you probably think you know that isn’t so: that by striking down Section 4, the court has effectively abolished preclearance. “The decision did not strike down Section 5, but without Section 4, the later section is without significance,” writes Adam Liptak, the New York Times’s Supreme Court correspondent. “So pre-clearance of voting rights changes is still constitutional–but right now no jurisdiction is subject to it,” claims Salon’s Joan Walsh. National Review’s John Fund agrees that Shelby County means “the demise of Section 5 of the Voting Rights Act.”
    While Liptak and Fund are technically correct, Walsh is dead wrong. Let’s let Lyle Denniston of ScotusBlog.com set the record straight:
    There is another provision of the law, potentially a back-up (Section 3), that allows the government to go to court to ask that a new state or local government be put under Section 5 because of its more recent history in dealing with minority voters. Two states have been brought under Section 5 that way–Arkansas and New Mexico–along with several county governments, including Los Angeles County in California. The Court’s main opinion did not even mention Section 3, but the dissenters referred to it briefly as a “bail-in mechanism” that has worked. If a challenger now seeks to employ that provision, it presumably will have to show that bias is still a present-day problem there.
    In a 2010 Yale Law Journal article, Travis Crum called Section 3 “The Voting Rights Act’s secret weapon,” one that “the academic literature has ignored”:
    Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. . . . Designed to trigger coverage in “pockets of discrimination” missed by section 5’s formula [sic; the formula is actually defined in Section 4], section 3 was included in the original Voting Rights Act.
    Preclearance under Section 3 does not suffer from the constitutional infirmity that doomed Section 4. It requires a contemporary factual finding of discrimination, either a decision by a judge or an acknowledgment by the defendant jurisdiction. That is to say that even absent congressional action, preclearance remains among the tools available to the Justice Department and voting-rights advocates. They just have to prove their case before using it.”

  4. This article explains that the voting right issue is not the disaster it is being made out to be. Any proven up to date mistreatment of minorities with respect to voting rights will still permit the justice department to re-impose the oversight rules on the offending State under sections 2, 3 and 5.

    This is the article link and the text below if you cannot get access:
    http://online.wsj.com/article/SB10001424127887323419604578569663974008072.html

    If you are a well-informed observer of the U.S. Supreme Court, here’s what you probably know about yesterday’s ruling in Shelby County v. Holder: Section 2 of the Voting Rights Act, which prohibits discriminatory voting practices and authorizes private parties and the Justice Department alike to challenge them in court, remains the law of the land.

    The ruling affected Section 5, which forbids certain states and localities from making any changes in electoral rules–including but not limited to legislative redistricting, changes in voting machines and establishment of identification requirements–without prior approval from the Justice Department or a panel of federal judges.

    If you’re following very closely, you know that Section 5 also remains the law of the land. The provision the high court held unconstitutional was Section 4, which establishes a formula for determining which jurisdictions are covered under Section 5. The problem with Section 4 was that its factual findings were ridiculously outdated. It mandates discrimination against states and local jurisdictions based on registration and turnout statistics from 1972 and earlier years.

    Congress could enact a law replacing Section 4 and bringing the preclearance criteria up to date. The conventional wisdom is that that won’t happen any time soon, since Republicans have the majority in the House and Democrats in the Senate.

    Roll Call’s Emma Dumain notes that House Majority Leader Eric Cantor has expressed interest in rewriting Section 4. Even so, this column is in agreement with the conventional wisdom. Democrats, as cynical exploiters of black racial fear, have no interest in constructive action here.

    Enlarge Image
    image
    image
    Associated Press

    Chief Justice Roberts

    Parochial concerns as well as partisan ones could make compromise difficult. “As the Chief Justice noted in oral argument in Shelby County, the state with the largest gap between white and black voter turnout is Massachusetts,” The Wall Street Journal observes in an editorial. Would Elizabeth Warren vote for a new definition that stigmatized the Bay State as a practitioner of Jim Crow?

    But even if you’ve been following the matter closely, there’s something you probably think you know that isn’t so: that by striking down Section 4, the court has effectively abolished preclearance. “The decision did not strike down Section 5, but without Section 4, the later section is without significance,” writes Adam Liptak, the New York Times’s Supreme Court correspondent. “So pre-clearance of voting rights changes is still constitutional–but right now no jurisdiction is subject to it,” claims Salon’s Joan Walsh. National Review’s John Fund agrees that Shelby County means “the demise of Section 5 of the Voting Rights Act.”

    While Liptak and Fund are technically correct, Walsh is dead wrong. Let’s let Lyle Denniston of ScotusBlog.com set the record straight:

    There is another provision of the law, potentially a back-up (Section 3), that allows the government to go to court to ask that a new state or local government be put under Section 5 because of its more recent history in dealing with minority voters. Two states have been brought under Section 5 that way–Arkansas and New Mexico–along with several county governments, including Los Angeles County in California. The Court’s main opinion did not even mention Section 3, but the dissenters referred to it briefly as a “bail-in mechanism” that has worked. If a challenger now seeks to employ that provision, it presumably will have to show that bias is still a present-day problem there.

    In a 2010 Yale Law Journal article, Travis Crum called Section 3 “The Voting Rights Act’s secret weapon,” one that “the academic literature has ignored”:

    Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance. . . . Designed to trigger coverage in “pockets of discrimination” missed by section 5’s formula [sic; the formula is actually defined in Section 4], section 3 was included in the original Voting Rights Act.

    Preclearance under Section 3 does not suffer from the constitutional infirmity that doomed Section 4. It requires a contemporary factual finding of discrimination, either a decision by a judge or an acknowledgment by the defendant jurisdiction. That is to say that even absent congressional action, preclearance remains among the tools available to the Justice Department and voting-rights advocates. They just have to prove their case before using it.

  5. Sorry – in my last post, the override is on section 5 sections 2,3 and 4 remain in place.

  6. Good comments Father Dan, I continue to struggle with what it all means in terms of my church, thanks for speaking about it. Deacon Bill Coffey

  7. Very balanced, thoughtful, and appreciated. Thank you, Father Dan, for sharing your ideas.

  8. Judy Emery Says:

    Thank you, Fr. Dan, these were profound moments for our time and our faith and your thoughts are encouraging.
    On the 1st matter of voting rights, If I understand Jonathan’s comments I’m somewhat encouraged but I do feel that what led to this decision was a very dark element of racism that has emerged more and more since Obama has become president in a way that has surprised me because I would have hoped we would have gone beyond that but it is certainly something that must be addressed. So some education and vigilance at least to respond to this attack. It demands our attention.

    On the 2nd matter, I do see this as a time of hope and I wonder if the matter might be something of a Galileo moment for the
    Church. Perhaps for those who feel they might need to oppose the decision, it becomes a matter of putting limits on God and rather we need to trust in his creation and delight in the gifts He has given us.

  9. […] Daniel Horan, OFM, on his blog DatingGod.com, also noted the disappointment in the Voting Rights case, and noted that the U.S. bishops’ […]

  10. Re Decision #l on Voting Rights: Racist, morally and socially retrogressive. I disagree with it. I like your rationale in this posting.

    Re Decision #2 on DOMA: I disagree vehemently with the decision. Same-sex marriage is morally, biblically, and socially wrong. The argument that it is a “civil right” is a sham. And I disagree with and am disappointed in your rationale, Fr. Dan. Just one more proof that our country is in a morally corrupt descent. We will reap what we sow. May God have mercy on us!

  11. Triangle Says:

    I am a former Canadian, what i can say about my large, somewhat Catholic family is that the homosexual members of my family are married while only one heterosexual couple, among many who have children between them, is married. The nationwide marriage statistics support this trend. If you will leave it up to the state to determine the definition of marriage ths is what you might get.While it is true that heterosexuals play a major role in value of marriage, many pastors have shrunk from their responsibilities to convey the biblical characteristcs and values of marriage gathered from the Old Testament through OurLord Jesus and after through St Paul. My hope is that more pastors will care about the state of biblical marriage will put as much care and energy into the Sacrament of Marriage as they invest inthe poor.

  12. Hi Fr. Dan,

    I would be very interested to hear more about the history of the Sacrament of Marriage, and how that can contribute to this discussion.
    As someone who holds the opposite position, I would encourage you to see the good will that is present on both sides, rather than characterizing the bishops’ position as “appalling” – at least not without some further justification!

    Pax!

  13. thanks!
    Great!
    good!

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