« previous post | Main | next post »

May 10, 2005

egging on the conscientious public official

Don Herzog: May 10, 2005

Suppose a heavily Catholic country polls huge popular support for same-sex marriage.  Suppose its government brings forward legislation to permit gays and lesbians to marry and adopt children.  Suppose those dread activist judges are nowhere to be found.  Suppose the lower chamber votes for that bill — "It's unfair to be a second-class citizen because of love," comments one legislator — and everyone then assumes its passage on second reading in that chamber and through the Senate is a done deal.

And then suppose the Roman Catholic Church weighs in
— not just to condemn the bill, but to urge public officials to refuse to perform same-sex marriages:

All Christians, including state employees, have a duty to avail themselves of conscientious objection because the law of which we are speaking inflicts a deep moral wound on the Christian faith.

That's Cardinal Alfonso López Trujillo, President of the Pontifical Council for the Family.  Notice that he wants public employees to refuse to follow the law.  He's not talking about pharmacists or taxpayers.  But the rule of law depends on state officials acting as impersonal instruments, methodically carrying out their duties whether they agree or disagree.  Still, some have promised disobedience.  One mayor pledged to respond to gay and lesbian applicants for marriage this way:  "I’m sorry.  I’m a Catholic before being a mayor.  I can’t marry you.  As a practicing Catholic, I have nothing but doctrine and I must heed what the new Pope says."

The country I'm imagining is Spain, and this titanic conflict really is unfolding right now.  The context is sobering.  A mere 14% of young Spaniards describe themselves as Roman Catholic, and one archbishop has denounced his home city:  "Madrid has turned into Sodom and Gomorrah."  Meanwhile, the archbishop of Pomplona has offered a forecast:  ""It is possible we shall soon be looking at a real epidemic of homosexuality."  One wonders if he actually believes that gay marriage will lure millions out of the closet.

The Church was of course already on record opposing same-sex marriage and civil unions.  From the Vatican's Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons:

In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty.  One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application.  In this area, everyone can exercise the right to conscientious objection.

I won't vouch for what happens in translation and across documents:  I don't know whether the Church's position has always been that Christians "must" or "can" refuse to cooperate with such laws.  And I won't second-guess the Church on why it has not pressed American politicians, say, to stop cooperating with capital punishment.  The Church is chock full of exceedingly smart people who have thought quite carefully about what they're up to, and why.  Nor will I second-guess particular public officials on how and why they draw the lines they do.  (Here is a provocative, or maybe provoking, argument from Justice Scalia on capital punishment.)

So that's the Church's stand.  How should Spain's government respond?  There have been competing reports on what the government will do to public officials refusing to perform gay marriages.  An early report said the government had "warned mayors not to interfere" with the new policy.  The government has since signalled it will not crack down on refractory public officials.

Granted, this disobedience may seem largely symbolic.  Contrast the good old days of 1570, when Pope Pius V issued Regnans in Excelsis, a bull excommunicating that Protestant Jezebel, Queen Elizabeth.  And that was just for starters.  We declare, the Pope continued in full first-person-plural splendor,

the nobles, subjects and people of the said realm and all others who have in any way sworn oaths to her, to be forever absolved from such an oath and from any duty arising from lordshop. fealty and obedience; and we do, by authority of these presents, so absolve them and so deprive the same Elizabeth of her pretended title to the crown and all other the abovesaid matters.  We charge and command all and singular the nobles, subjects, peoples and others afore said that they do not dare obey her orders, mandates and laws.  Those who shall act to the contrary we include in the like sentence of excommunication.

No graciously excusing the hostility in that:  no wonder Elizabeth's government responded with legislation (13 Eliz. I, c. 2) forbidding people from bringing into England or executing such papal documents.  No wonder either that in 1588 Philip II of Spain sent the Armada against England, not in the pursuit of geopolitical advantage, but to serve the Pope and try to bring England back to the "true Church."  England was saved by a Protestant breeze, but that's another story.

Here I want to emphasize that such episodes made life hell for English Catholics.  Over the decades, the wary government showered legal disabilities on them.  Then too they got to watch their fellow subjects bubble over with Papist-bashing; they got to listen to the Chuch sneered at as the Whore of Babylon, the Pope as the Antichrist.  No surprise that some of those Catholics became disloyal subjects:  in 1605, in the nick of time, the regime arrested the conspirators of the Gunpowder Plot.  They had planned to blow up Parliament while it was in session and the king was there.  In turn, annual bonfires celebrating the arrests featured burning the pope in effigy.  Such dismal histories helped persuade liberals that religion and politics are a lethal combination.

Today, the Church is not threatening Spain with mass excommunication or war.  One view is, "well, the same principle is at stake:  a country has to be free to govern itself and must resist attempts by outsiders — churches, other governments, barons of the drug trade, the IMF, you name it — to override its sovereign autonomy.  This is the heart of what the little-r republican tradition calls freedom."  Another view is, "oh come on, only a glib slippery slope argument gets you from Cardinal Alfonso López Trujillo to Pius V."

I don't mind if the Church instructs its priests not to perform same-sex marriages.  That, obviously, is a religious judgment it's free to make.  (If you think it should be up to the priests or parishes, you're pretending the Church is quite Protestant.)  For the same reason, I would mind very much if Spain's government tried to coerce any church into performing such ceremonies.  I don't mind if public officials who are legally required to marry gay and lesbian couples balk and resign their posts.  I don't much mind if they conscientiously refuse and then try to stay in office.  What should the government do if they refuse?  It could fire them.  Or it could blink and ignore the refusal, figuring there's no point trampling on their consciences when other officials will do their duty and no couple will be seriously inconvenienced.  But a government that looks like it's giving into bullying — even bullying of the most principled sort, from a hugely dignified Church — is in trouble.

Before you reach an absolute view on what's permissible in these circumstances, consider these legal demands:  "Guard, transport those Jews to the ovens."  "Sheriff, go remove those trespassing blacks from the lunch counter."  "Officer, arrest those anti-abortion picketers for disturbing the peace."  But think too about these:  "I'm sorry," says the city clerk to the baffled young man and woman holding hands.  "I can't issue your marriage license.  We Shakers think it wrong to marry."  "No, I won't issue the parade permit, even though you're legally entitled to it," says another city clerk to a bearded radical. "Your parade will include pro-choice protesters, and I think that's sinful."

Relax, no one in Spain's government is asking my advice.  But I'd tell them that if they can't figure out a persuasive way of suggesting that permitting conscientious objection is very much their own decision, t
hey should promptly fire every single public official who refuses to perform his allotted legal duties.  Yet the Church's posture means that Spain will almost surely look like it's climbing down under pressure if it lets the refractory mayors refuse to perform the wedding ceremonies.

This is not an argument about the overwhelming value of same-sex marriage.  It is an argument about jurisdiction, driven by my worry that the Church has just exceeded its own rightful sphere of authority.  (You decide what you make of this homegrown American story.)  Older readers will recall that in the American presidential election of 1960, JFK had to persuade anxious audiences that he would not take his marching orders from the Vatican.  I'd like to think we're long past the time when devout Catholics running for office would trigger such anxieties.  But whether we are is in part up to the Church.

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d834536ae669e200d83423509453ef

Listed below are links to weblogs that reference egging on the conscientious public official:

» Minister of God from The Debate Link
Via Don Herzog over at Left2Right, I find this incredible article by Justice Scalia on the Death Penalty. It is, in many ways, typical Scalia: eloquent, well-argued, tightly reasoned, principled. And at times, very, very scary. [Read More]

Tracked on May 13, 2005 3:45:11 AM

» More on Spain from Left Center Left
Don Herzog has more on the battle brewing between Catholic theocrats and the Socialist government in Spain over gay marriage. Not pretty. We'll have to see how the measure survives widescale civil disobedience. Mr. Herzog's argument is odd in its [Read More]

Tracked on May 13, 2005 7:21:30 AM

Comments

Posted by: Bernard

It seems to me that the Catholic church, as a voluntary organisation, can urge people to do whatever it pleases. The key issue here is that if it does exceed itself and alienate its followers by urging them to act against their other cultural reference points then people will opt out (as many have in light of other issues where it's been perceived out of touch).

It seems to me that these things regulate themselves.

Posted by: Bernard | May 10, 2005 7:22:45 AM


Posted by: D.A. Ridgely

I’m surprised by such inquisitiveness about Spanish church / state affairs! Then again, nobody expects the Spanish Inquisi… Oh, never mind.

Posted by: D.A. Ridgely | May 10, 2005 8:18:36 AM


Posted by: Dan Kervick

I don't think I understand what you mean by "jurisdiction" here. The Catholic Church is not a constitutionally established institution with a legally defined sphere of authority. It is a religious organization that claims for itself a universal teaching authority and a unique, global apostolic mission to carry forth the Gospel and do Christ's work on earth. For its most faithful adherents, The Church's authority is mainly defined by whatever the Church says it is.

Catholic teaching has always been that authority is exercised legitimately only when it it is exercised morally, and that people are not bound by conscience to obey immoral laws. Here is an area, then, in which it holds Spain has enacted what the Catholic Church regards as an immoral law. We shouldn't avoid taking on the moral teachings directly, rather than hiding behind wishful thinking, and modern enlightenment conceptions of the Church's "rightful sphere of authority". The church doesn't accept those limits and the philosophy of government that informs them.

Yes, American Catholics have sometimes had to work hard to convince other Americans that they don't take direction from the Catholic Church, and don't regard the church as a higher authority than their own government. Well, that's tough. The best way to convince their fellow-citizens that that is true would be to sever their ties of obedience with an organization that does in fact proclaim itself a higher authority than temporal governments.

But to be fair, it is not just Catholics who have "divided loyalties" here. I suspect most people, Americans particularly, recognize some other authority beyond, and higher than, their own government. Even secular philosophy professors sometimes accept a "moral law" whose authority they believe is supreme, and are willing to accept that people are not bound to obey unjust laws.

So again, the point you might want to argue is that when the Church says gay marriage or civil unions are immoral, the Church is just wrong.

Posted by: Dan Kervick | May 10, 2005 8:28:10 AM


Posted by: Steve

How funny. You remind me of Kerry. Presumably, you approved of civil disobedience before you opposed it?

Steve

Posted by: Steve | May 10, 2005 8:28:51 AM


Posted by: Tom Perkins

Har, Har, D.A.R. Har, Har.

Posted by: Tom Perkins | May 10, 2005 8:38:05 AM


Posted by: Will

How about mel brooks?
The inquisiiiition, what a show! The inquisiiiition, Here we go! ...
We’ve flattened their fingers
We’ve branded their buns
Nothing is working
SEND IN THE NUNS

I agree Don, Spain shouldn't buckle -- though I should take it easy on the conscientious objectors and work a deal wherein they could save face and keep their jobs.

Posted by: Will | May 10, 2005 8:42:04 AM


Posted by: john t

Whew! I'm glad the post isn't about homosexual marriage although such a post might be refreshing,don't recall ever seeing one before. Not for nothing but maybe a way out of this is for gov't officials not to pass laws that flaunt the basic beliefs of many of their citizens,whether Catholic or not. This might help avoid a situation where silly Catholics and others make so bold as to act on their beliefs as opposed to sitting in a corner,shutting up and paying their taxes.

Posted by: john t | May 10, 2005 8:50:10 AM


Posted by: Tom Perkins

The officials of the Church have the absolute duty to obey their consscience in matters of faith, I am glad that here it is unlikely to cost them their lives. The civil servants of Spain have the absolute duty to obey their own consciences as to whether they will obey the edicts of the church, or disobey and accept such ecclesiastic sanctions as the Church may levy, and this certainly includes literal excommunication. It is the absolute duty of the citizens of Spain to decide how the decisions of the civil servants in the jurisdictions within which they live will effect how they vote for those civil servants or the officials who oversee them in the future.

This is self evident almost to the point of being a of tautology.

"But a government that looks like it's giving into bullying — even bullying of the most principled sort, from a hugely dignified Church — is in trouble."

It's in a lot of trouble. It is on the verge of losing what Leftists find most valuable in government, which is sovereignty--that mythical presumption that if it kills to enforce the law, that's ok. Of course, the value of that also depends on whether Leftists wrote the laws or not. Its hard to tell people how to live their own lives if you can't hold that big stick over their heads.

I can certainly agree that firing or doing what can be done to remove from office persons who will not execute what the laws they swore to uphold have become is a defensible response of a government to such interference.

But nothing will stay the hand of future valve turners and human carrying cattle car loaders more effectively than that all people are as free from govenrment interference as possible in the exercise of their conscience.

This means less powerful and less centralized government, exactly what Leftists abhor--unless they aren't in charge of it.

John T. I see your point and raise you a ho-hum, this hobby horse again, but now side-saddle.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 10, 2005 9:42:04 AM


Posted by: Matty

"It is an argument about jurisdiction, driven by my worry that the Church has just exceeded its own rightful sphere of authority."

Like Dan, I don't understand what sort of jurisdiction or "sphere of authority" the Church is supposed to have exceeded. The Church has merely instructed its adherents as to how to behave. Yes, these instructions concern the behavior of public officials, but I fail to see why the Church should limit its proclamations to areas of only private concern.

Consider this (sadly) counterfactual situation. Suppose that the Catholic Church had openly instructed its German followers--even those working in government--to undermine, in any way possible, the Nazi plan to exterminate Jews. Would such an instruction have been another example of the Church exceeding "its own rightful sphere of authority"?

In my view, the Church has not exceeded its authority in either case. The salient difference is that while we all (hopefully) agree with the Church's counterfactual instructions, many of us disagree with the Church's position on same-sex marriage. So--and again I'm siding with Dan here--let's tackle that issue head on. Let's argue that the Church's opposition to same-sex marriage is *wrong*, rather than castigating the Church for daring to have a view as to how its followers should behave.

Posted by: Matty | May 10, 2005 9:42:51 AM


Posted by: Josh Jasper

"It is possible we shall soon be looking at a real epidemic of homosexuality."

Yes, because as you know, you can catch gay. Even over the internet. Just reading me could be infecting you RIGHT NOW.

Posted by: Josh Jasper | May 10, 2005 9:48:09 AM


Posted by: Ted

"One wonders if he actually believes that gay marriage will lure millions out of the closet."

Probably not millions, but certainly some; fear of discrimination/ostracism/hostility/violence keeps many gays in the closet, and if society legitimizes gay marriage this fear should diminish and as a result many people will feel free to publicly acknowledge who they are.

Posted by: Ted | May 10, 2005 10:02:52 AM


Posted by: D.A. Ridgely

Yes, because as you know, you can catch gay. Even over the internet. Just reading me could be infecting you RIGHT NOW.

Well, I suppose there is the possibility of virtual pheromones.

Posted by: D.A. Ridgely | May 10, 2005 10:06:20 AM


Posted by: pedro

Instead of asking public officials to engage in official speech acts against gay marriage, the Church ought to advice them specifically to quit their jobs if forced to participate in what the Church considers immoral. The problem is not with telling its sheep how to act as individuals. The problem is that the Church is telling them how to act as public officials.

Posted by: pedro | May 10, 2005 10:13:34 AM


Posted by: Achillea

I'm sorry, maybe I missed something here. Mayors in Spain are not elected officials? They're immune to the constituent power embodied in 'huge popular support' for something they're trying to balk?

Certainly let them follow their consciences, dictated by Rome or not. And let the voters fire them for not doing the job they were hired to do.

Posted by: Achillea | May 10, 2005 10:13:53 AM


Posted by: Terrier

Do and say whatever you like but the special exemptions granted to churches should end. I have said before that I am religious and I do go to church but my church and every church should pay taxes and be subject every other law enforced on any other business. If we do this then I have no problem with preachers doing Pepsi commercials (or political endorsements) every Sunday from the pulpit. My mother left the Baptist Church because they started to enforce doctrine. She was actually raised to believe in soul competency and figured that no man was qualified to judge another man's faith so when the Convention decided to do that, as far as she was concerned, they ceased to be Baptists. Christianity (and other Middle-Eastern religions) was derived from the mentality of the monarchial city-state and thus has always been obsessed about what others are thinking and feeling. That's why there is all this legislate-morality-crap (by both righties and lefties) in the West. There is an implicit assumption that we must all be 'right-with-the-Lord' or we will all suffer. That's what underlies this absurd claim that same-sex-marriage will ruin society. Some people will only feel that they have done their duty when they have done everything they can to coerce others to follow their belief system. Which, by the way, is why I favor secular government giving handouts and not private charities that will feel free to attach the strings of a belief system to their help. Religion should confine itself to teaching people how to fish - not providing free fish-frys. Coercion that affects someone's inner life is far more dangerous to me than any attempt to take just material things from me. To value a few banknotes over my own mind is laughably stupid. Do I support the right of Catholics (or anyone else) to protest and live according to their belief systems? Emphatically yes! (But don't be surprised if you lose your job.)

Posted by: Terrier | May 10, 2005 10:18:34 AM


Posted by: Tom Perkins

"Just reading me could be infecting you RIGHT NOW."

Well Josh:

1) I am put in the mind of the Dilbert strip where Wally had too much testosterone, and it was flying out of his pores and landing on people. Eww.

2) I have good understanding of human nature, some familiarity with the research regarding the influences of biology and upbringing on the prevalence of homosexual behavior--and for now, homosexual encounters with pedophiles around the ages of 7 to 13 or so is by far a stronger correlating factor in the occurence of homosexual behavior in adults than reading material.

3) It seems overwhelmingly likely that a genetic component is present in virtually all homosexual behavior where there is scant or no history of bisexual attraction, so it's not something you catch nearly as much as it's something you're born with.

Of course, all of the above including your post is a distraction from the point of the post, which is that in obeying their conscience and directing all Catholics to refrain from solemnizing gay marriages, the Church officers have somehow overstepped their bounds, which they haven't done, neither would Spanish officials who are Catholically inspired to be conscientious objectors to officiating gay marriages and yet not resign be overstepping their bounds.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 10, 2005 10:18:35 AM


Posted by: David Velleman

Don has made perfectly clear that he would respect acts of conscientious objection by Spanish officials ("I don't mind if public officials who are legally required to marry gay and lesbian couples balk and resign their posts. I don't much mind if they conscientiously refuse and then try to stay in office.") And he has already noted the possible analogy to historical cases in which conscientious objection was morally obligatory (see the paragraph beginning "Before you reach an absolute view ..."). So conscientious objection is not the issue.[1] The issue, as I understand it, is whether the Church is courting serious trouble by placing its authority in direct opposition to that of a legitimate government.

In this regard, I think that Matty's counterfactual example is not relevant. We naturally believe that the Nazi regime was illegitimate, and hence that the Church should have sought to undermine its authority and power in any way possible. But I assume (and I assume that Don is assuming) that the Spanish government is legitimate, and that the Church concedes its legitimacy. Instructing its members to disobey what it concedes to be a legitimate government is quite different from instructing them to resist an illegitimate regime.

Remember, though, that the question is not whether Spanish officials should disobey, or may legitimately disobey if their consciences so instruct them -- even if their consciences take guidance from Church teaching. All of these possibilities are already granted in Don's post. As I understand Don, he is posing an extremely subtle question. Granting that Catholic (and other) Spanish officials are entitled to conscientiously disobey, perhaps on religious grounds, the question remains whether the Church ought to oppose its institutional authority to the authority exercised by a government that it concedes to be legitimate. And as I understand this question, the "ought" is mainly prudential. Maybe it would be wiser for the Church to state its position on same-sex marriage while avoiding a contest of authority with legitimate governments, leaving its members to follow their consciences as informed by Church teachings. That, I take it, is the hypothesis under discussion.

(Don? Am I way off?)

-------------------

[1]Don's statement that the government should fire officials who disobey in no way cancels his statement that they are entitled to disobey. Disobedience that is truly conscientious entails accepting the legal consequences.

Posted by: David Velleman | May 10, 2005 10:25:32 AM


Posted by: Josh Jasper

2) I have good understanding of human nature, some familiarity with the research regarding the influences of biology and upbringing on the prevalence of homosexual behavior--and for now, homosexual encounters with pedophiles around the ages of 7 to 13 or so is by far a stronger correlating factor in the occurrence of homosexual behavior in adults than reading material.

Is that Nicolosi or Cameron you're citing?

Of course, all of the above including your post is a distraction

Oh, curses, foiled again. And I would have gotten away with it, if it hadn't been for your rotten kids.

And that dog.

from the point of the post, which is that in obeying their conscience and directing all Catholics to refrain from solemnizing gay marriages, the Church officers have somehow overstepped their bounds, which they haven't done, neither would Spanish officials who are Catholically inspired to be conscientious objectors to officiating gay marriages and yet not resign be overstepping their bounds.

As long as there isn't a real impediment to same sex couples getting married, I say let them go. Don't fire anyone. But were I living in Spain, and had to incur extra costs to get married to another man, I'd expect the officials who messed things up to foot the bill for me.

But anyhow, I doubt many Spanish Catholics also mind using condoms, or selling them, or distributing birth control pills, etc... So I find myself wondering why same sex marriage conducted outside of the church is so much more important than sex by church members.

As for the bit about 'officiating', stamping something and filing it is not officiating. That's done in church, or by a minister. The paperwork is just from the government, which is not the church. As far as the church is concerned, those marriages are not real, so why should they care if they get an official government stamp or not?

Here's an interesting parallel in the US:

Same sex couples often get 'married' in the sense that they have ceremonies. I've been to several. Some in churches, some not. Now, depending on the state, you can also register for domestic partnership laws. But in this hypothetical, let's say we're in Alabama, where there is no DP laws. We've got a gay couple living there (god knows why, I'd move out as fast as I could) and they have a commitment ceremony. They draw up some legal documents to make things as similar to marriage as they can get, and hand over the parcel to a clerk, who, acting as a Catholic on the advice of his church, refuses to approve them.

Can that clerk be fired? Should that clerk be fired?

Posted by: Josh Jasper | May 10, 2005 10:40:09 AM


Posted by: D.A. Ridgely

It would be wildly presumptuous for me to attempt to speak for the Roman Catholic Church in such matters (not that being wildly presumptuous would be unusual for me), but I suspect the question whether it is prudent for Rome to engage in this sort of confrontation depends on whether it believes it is likely to be successful in changing public policy as a result. That’s an interesting question, even in nominally Roman Catholic Spain, but it’s only interesting as a matter of strategy and tactics.

Mr. Herzog states his worry is “that the Church has just exceeded its own rightful sphere of authority.” (Emphasis added.) Okay, then, Mr. Herzog, the questions arise what is that rightful sphere and who gets to decide that?

Posted by: D.A. Ridgely | May 10, 2005 10:51:12 AM


Posted by: Matty

David writes: "The issue, as I understand it, is whether the Church is courting serious trouble by placing its authority in direct opposition to that of a legitimate government."

But what do you mean by "serious trouble"? You suggest that Don's concerns are mainly prudential. His question, then, is whether, for pragmatic reasons, the Church should refrain from "placing its authority in direct opposition to that of a legitimate government"?

In the long run it may indeed be bad for the Church to take such a position, but I suspect that Don did not have the welfare of the Catholic Church in mind when he wrote his closing paragraph. As Mr. Ridgely has observed, Don focuses on the Church's "rightful sphere of authority," thereby suggesting that the Church has no right to issue the sort of instructions we're seeing in Spain (regardless of how prudent or imprudent those instructions might be).

Perhaps we're both right. If Don's concern is indeed prudential, perhaps his specific worry is that by exceeding its rightful sphere of authority the Church is going to damage itself. But then this conclusion depends on the claim that the Church is actually exceeding its rightful sphere of authority, and that is what I meant to question in the first place.

Posted by: Matty | May 10, 2005 11:24:50 AM


Posted by: J.S.

I say get the government out of the marriage business! They have no place there. Governments for civil unions for everyone- including gays. And then religious ceremonies for those who want them; end of story. Religious groups that want to remain entrenched in their medieval bigotry, I mean, "tradition", could so and those with an eye towards equality and inclusion (I think Jesus said about this, but nevermind) could marry gays and straights.

J.S.

http://voicesofreason.info

Posted by: J.S. | May 10, 2005 11:32:17 AM


Posted by: john t

A problem exists. That problem is that,however guarded the language, some people are shocked,just shocked,that other people and institutions disagree with them. Like smoking it's okay if you do it in the house but not in public. OK,so even smoking isn't alright in the house but I had to use something as an example. The problem has evolved from a bizarre notion that government should be a transformative force in society,interesting in itself given that gov't can't even transform itself,i.e. conduct it's operations and performance in a manner resembling sanity,coherence,and a modicum of efficiency. Does,for example,the INS still keep it's records in cardboard boxes in warehouses it can't locate,the cardboard boxes I mean,not the warehouses. Although I'm not sure about the warehouses either. Somewhere between and including Cleisthenes and F D Roosevelt,and probably before,some people,at least partially deranged,got the notion that government was a giant milk cow whose udders reached into every home. Having gotten used to this idea we have devolved to the point where we expect the circus ringmaster to,excuse the metaphor,juggle the balls of society. Rearrange things,little things like marriage,concerns about gov't power,and whose money it really is. And some people are shocked that thisis questioned and worse yet opposed,allegiance to dissent having it's limitations. Concerns are expressed,worries displayed,questions raised,dead queens and kings discussed,and history dropped to the cutting room floor having been edited to death.

Posted by: john t | May 10, 2005 11:37:04 AM


Posted by: miab

DV writes: "The issue, as I understand it, is whether the Church is courting serious trouble by placing its authority in direct opposition to that of a legitimate government."

I think that's backwards, or at least only gets part of it. Don's main focus is on the consequences to Spain of seeming to bow to church pressure. He says that they should allow conscientious objection if and only if they can come up with a way to allow conscientious objection without seeming like it comes from church pressure: "But a government that looks like it's giving into bullying — even bullying of the most principled sort, from a hugely dignified Church — is in trouble."

It's the repurcussions in the secular sphere that drive this post, combined with the backlash it could generate against the church and its members. E.g., if church pressure is successful, then maybe the view will be that the worries about JFK were right, and he couldn't be trusted to do what's best for the country, or support the constitution, if the pope told him to do otherwise.

Posted by: miab | May 10, 2005 12:19:25 PM


Posted by: Bret

Most of me says fire 'em if they won't execute the laws of the land. However, these particular laws weren't in their job description when they started (or ran for office) so I think they should maybe be given a little time to find a new job.

Posted by: Bret | May 10, 2005 12:23:14 PM


Posted by: Josh Jasper

J.S., I doubt you'll convince many proponents of same sex marriage to 'disarm' and go for civil unions unless they're on a federal scale as well as state based.

I do think that most SSM advocates would accept a 'same in all but name' status if it were really the same, and they really got all the rights granted to married couples, but I doubt that's going to happen. Most proponents of "civil unions" being enough for SSM couples seem to think that SSM couples don't want need or deserve the large scale federal benefits that marriage grants. I have no idea why, other than that they're intentionaly being disengenuous, which they frequently are.

Posted by: Josh Jasper | May 10, 2005 12:35:31 PM


Posted by: tony

When a battle is being lost, the losing side is often provoked into extreme and irrational-seeming behavior. That's what's happening here. The church has little to lose in Europe, since they have already made themselves ridiculous through opposition to birth control, sheltering pedophiles, and so forth. Having lost what remained of their moral authority - even American catholics are getting fed up - their only recourse is to throw a temper tantrum.

To call this "conscientious objection" is a mockery, rather like high school students striking for a longer lunch break. It makes the church look foolish, and only accelerates its decline. Good riddance!

Posted by: tony | May 10, 2005 12:53:58 PM


Posted by: Terrier

john t, "the bizarre notion that government should be a transformative force in society" came from the bizarre notion that religion should be a transformative force in society! If you actually knew something about dead queens and kings you would realize that in the West secular governments are a reaction to the excesses of the church. All the crimes you lay at the feet of Roosevelt have been committed far more often by the clergy. As far as the Catholic Church "placing its authority in direct opposition to that of a legitimate government," I say have at it, but remove all exemptions from any church and let the government treat them as they would any other public entity.

Posted by: Terrier | May 10, 2005 2:53:51 PM


Posted by: James Oakes

Does the principle of church/state separation place any restraints on churches, or is it directed solely at the behavior of the state? If the latter, then I think Don is right to focus on the difficulty Rome's recent edict poses for the Spanish government: what can it do to preserve the right of individual conscience while at the same time preserving the principle of church/state separation?

Its not an easy question to answer, and it cannot be reduced to the particulars of the specific issue at hand. Don's posting, in this sense, is not about the legitimacy of gay marriage, its about the preservation of a central principle of the secular liberal state in the face of renewed pressure from churches.

But then there's my opening question: does the principle of church/state separation impose any restraints at all the the churches themselves? ?We grant tax exemptions to church institutions provided they steer clear of politics, and I know of no churches that have willingly chosen to pay taxes in exchange for the right to speak their minds on controversial issues. So in at least one way the churches have accepted the principle of restraint.

Nevertheless, I don't have an answer to this question either, but I do take Don's point that Rome has in some sense overstepped here. Had it decreed that Catholic public servants asked to perform same sex marriages should quit or excommunicated be, I would have no problem. Then the onus would be on Catholic officeholders to decide for themselves whether to risk their jobs or their souls. But in a sense the Church took the easy way out: it absolved Catholics of having to make the choice by telling them that they were free to disobey the law, thereby forcing the hand of the State rather the the hands of Catholics.

Like Don, I accept that the Church can tell its own members what they can and cannot do as practicing Catholics. I'm no so sure I accept that the Church should be in the business of dictating to States what they should be up to.

For all that I don't know, here's what I do: The separation of church and state is more important to me than gay marriage.

Posted by: James Oakes | May 10, 2005 4:46:04 PM


Posted by: catfish

As a non-catholic, I have no problem with the Catholic church telling its members in govenment to refuse to enforce particular laws. However, I don't think that Catholic officials should get any special dispensation because their objection to enforcing laws is religious. Government officials have to enforce laws that they disagree with all the time. If a public official refuses to perform his or her duty, the Spanish government has a right to dismiss or discipline that employee. This is especially important in this case. Governments are the only organizations that can issue enforcable marriage licenses. This monopoly means that government employees rightly have less individual discretion than might their counterparts in private organizations. In other words, this issue is not a church/state issue. It is a question of how the central government relates to civil servants and local elected officials. Should local officials or public employess be able to veto duly enacted laws?

Posted by: catfish | May 10, 2005 5:36:14 PM


Posted by: Dan Kervick

James,

The principle of church-state separation, whatever that is, may indeed place restrictions on the behavior of churches. But I doubt you would find a lot of sympathy among the Catholic hierarchy for the principle of church-state separation. That principle is a piece of modern, liberal political theory. From the church's point of view, it is the work of misguided and fallible mortals like John Locke, not a direction from God.

The Catholic Church does more than tell its members what do, "as practicing Catholics". The church presumes to teach moral rules that are binding on all of humanity, because they are imagined to be the rules that have been revealed by God, both in sacred scripture, and through his son Jesus Christ. They are not just some sort of membership rules for a special private society.

As far as the "spheres of authority" go, one sometimes finds the argument in liberal political thought that the proper role of churches is the work of salvation of souls, and happiness in the next world, while the proper role of temporal government is the well-being of its subjects or citzens in this world. But however much sense such a distinction might make from the standpoint of some post-reformation Christian denominations, which posit a radical and incommensurable split between eternal and temporal happiness, and a predestinarian divorce between election for salvation and questions about the way one should live one's mortal life, it makes no sense from the Catholic perspective - and other religious perspectives for that matter, including other Christian ones. In the Catholic view, we are merely wayfarers or sojourners in this world, and a correct understanding of our immortal vocation and proper end should govern all aspects of our lives. Blessedness or happiness in this world consists in ordering our lives, and the lives of others, toward the achievement of the highest state of human perfection, a state which can only be fully realized in the next world, but the achievement of which depends on how we live in this one. So it is impossible for government to really look after the well-being of its subjects without looking after their spiritual well-being. Thu Church is not a liberal institution.

Ultimately, there is an ineliminable conlict of world views at work here. Churches and liberal states may be able to exist in a condition of mutual "toleration" most of the time, when the conflict is submerged behind uncomfortable agreements, truces and settlements. But unless religions all cease being religions, and become mere social clubs, deep conflict is inevitable.

I suppose it is a good thing that people seek to resolve these conflicts by papering them over and not probing the really deep differences. But at some point we have to just address the disagreement.

Speaking only for myself, when the Church says that homosexuality is morally wrong because it violates God's law, I think the Church is doubly mistaken - because there is no God and there is no Law of God. If a church or religious organization wants to direct its members to violate a law enacted by government, that is its own business. But if the law is one that I support, then I am going to seek to have my government uphold that law and punish its violators.

As far as Spain goes, the Spanish people will have to decide for themselves to whom they will grant supreme authority, and whether or not this is an issue they want to make a stand on.

Posted by: Dan Kervick | May 10, 2005 6:23:59 PM


Posted by: MNPundit

The interesting thing is, some slippery slope arguements are right. In the past some argued for denying blacks equal protection and enforcing segregation because if not, it would lead to things like interacial marriage.

...and they were right!

Of course, being in a bi-racial relationship that's one slippery slope I hurled myself down.

Posted by: MNPundit | May 10, 2005 6:48:06 PM


Posted by: Don Herzog

Well, let's take partial stock.

Steve gives us,

How funny. You remind me of Kerry. Presumably, you approved of civil disobedience before you opposed it?

But 1/civil disobedience is something we ordinarily think of private citizens, not state officials, as doing. More important, 2/As David V. notices, I say explicitly I don't mind if public officials decide to conscientiously object to Spain's new policy. The question is, how should the government react? So I'm afraid Steve's glee in landing a partisan blow has gotten in the way of his reading comprehension.

john t offers,

maybe a way out of this is for gov't officials not to pass laws that flaunt the basic beliefs of many of their citizens,

Now this one really matters, because it's crucial to understanding the logic of liberalism. In this terrain, and many others, there is no such possibility. Failing to recognize gay marriage flaunts the basic beliefs of many citizens, too. The inescapable fact of modern society is deep and wide diversity on fundamental issues. There are lots of liberal strategies for dealing with this: get the state out of spheres of ineliminable conflict, for instance. But unless you're an anarchist, you can't always do that one. Put differently, I'd invite john t to think again about his later claim:

some people are shocked,just shocked,that other people and institutions disagree with them.

Tom Perkins suggests an ideal: that

all people are as free from government interference as possible in the exercise of their conscience.

Looks to me like he imagines that people's consciences respect individual rights and autonomy -- in a word, that those consciences are liberal. That's false. Last I checked the historical record, many people's consciences drove them to take intense interests in what others were up to. They had sincere conscientious beliefs that they were obliged to save others' souls, for instance. Me, I'm glad the government "interfered" with such perfectly conscientious actions.

David V. and miab wondered whether I think the proper boundaries of Church action are prudential or matters of right. I am inclined to doubt the sharpness of the distinction in this domain.

Finally, the only comment on the history in my post seems to be john t's opaque suggestion that

history dropped to the cutting room floor having been edited to death.

If that's an objection to anything I said about the papal bull against Elizabeth's government and the repulsive developments it unleashed, I'm afraid I missed it. So please unpack it. Else I'll suspect it's just an expression of unfocused annoyance.

Posted by: Don Herzog | May 10, 2005 7:08:52 PM


Posted by: Tom Perkins

"Looks to me like he imagines that people's consciences respect individual rights and autonomy -- in a word, that those consciences are liberal. That's false."

I suggest the nightwatchman state, and would welcome the opportunity to have competition between security providers. Also, a respect for individual rights and autonomy is all but absent in modern "liberals" unless the exercise of them doesn't happen to interfere with whatever the ostensibly progressive enthusiasm of the day is; such respect is only common among classical liberals.

As to the commonality or paucity of liberal consciences in the mass of the people; I do not assume, as it seems modern liberals must, that there is any improvement in the mean or median incidence of liberal consciences to be found in governemnt employees of any service grade.

I'd severely caution you from advancing the idea that private citizens are more at liberty to obey their conscience than governemnt officials are, unless you approve of government officials being mindless, heartless valve turners for the "consensus" of the state--an apparatus inherently more hierarchal than an individuals conscience.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 10, 2005 7:48:26 PM


Posted by: Paul Torek

Don, you're a smashing success. You've managed to unite voices left and right - Dan K, Tom Perkins, Matty, DAR. The critics agree that your worry "that the Church has just exceeded its own rightful sphere of authority" is off the mark. What they said.

Posted by: Paul Torek | May 10, 2005 8:10:31 PM


Posted by: Don Herzog

Thanks, Paul, but I'm still slow: I'm missing the argument that moves from the consensus you summon up to what's wrong with anything I said. Spell it out, could you? And while you're at it could you explain the difference between what the Church is doing now and what it did in 1570? Or do you think that in 1570 too the Church didn't exceed its authority?

Posted by: Don Herzog | May 10, 2005 8:14:37 PM


Posted by: Ralph Wedgwood

I thought that Timothy Garton Ash had a fairly perceptive piece in the Guardian (Thursday 21 April 2005) after the election of the new Pope, entitled "Christian Europe RIP". (I think I'm not allowed to post a link here, but it's easily found.)

This analysis would predict that many Spaniards -- including many who aren't 100% comfortable with same-sex marriage -- will find the apparent view of the Catholic Church, that same-sex marriage is the most serious problem facing Spain today, frankly preposterous. It will only heighten their sense that the Church provides them with little useful guidance in leading their lives.

The Church's call for mayors to refuse to obey the Spanish government reminds me of Christ's famous saying: "Render unto Caesar those things that are Caesar's, and render unto God those things that are God's."

Surely civil marriage (unlike the religious sacrament of marriage) is one of the "things that are Caesar's"; after all, civil marriage is a legal status, defined by the civil laws of the state, involving a package of legal rights and obligations, which are largely concerned with who pays for what under what circumstances. In such matters, Christ seems to be commanding complete obedience to civil authorities, surely?

Posted by: Ralph Wedgwood | May 10, 2005 8:16:57 PM


Posted by: Don Herzog

Here is the piece by Ash.

Posted by: Don Herzog | May 10, 2005 8:19:34 PM


Posted by: Bret

Ralph Wedgewood wrote: "...after all, civil marriage is a legal status..."

If they called it "civil marriage" instead of just "marriage" it might be more easily accepted. For example, "single sex civil unions" are more widely accepted than "single sex marriage". Marriage has religious connotations to some making it harder to split off that Caesar part.

Posted by: Bret | May 10, 2005 8:30:31 PM


Posted by: D.A. Ridgely

I believe I stated only that I thought Mr. Herzog needed to give a better account of what he meant by "rightful sphere of authority" and how and by whom that is to be decided.

Posted by: D.A. Ridgely | May 10, 2005 8:43:02 PM


Posted by: Josh Jasper

Bret: If they called it "civil marriage" instead of just "marriage" it might be more easily accepted. For example, "single sex civil unions" are more widely accepted than "single sex marriage". Marriage has religious connotations to some making it harder to split off that Caesar part.

Damn right it does. The problem is, many GLBT people belong to religions that are OK with same sex marriages. So, what' you've got is religions telling other religions that they're not real, and don't deserve the protections the law can give.

But (and here's the interesting part) people seem more OK with "civil" marriage, domestic partnerships and the like with no rhyme or reason to what rights the DP laws grant and withold

As far as I can tell, pro DP but anti SSM activists (like Maggie Gallagher) are playing a shell game in which they keep advancing a mythical proposition they're for, never realy agitating for it, and never defining it's boundaries.

In some sense (tying this abck to the origianl post) the Catholic Church needs to confront this. If they're telling Catholics to be civily disobedient to SSM, even when it's jsut a matter of signing apperwork, do they also have the same stance on DP paperwork?

Of course not. They're not that rational, organized, or consistant.

Posted by: Josh Jasper | May 10, 2005 9:48:32 PM


Posted by: Bret

Josh Jasper wrote: "So, what' you've got is religions telling other religions that they're not real ..."

Ummm, well yeah. Most religions claim theirs to be the only True one, so of course, each thinks the other isn't real. I don't think there is anything we can do about that one without abolishing religion completely.

But your point that religious organizations that marry homosexual couples should have access to the same rights and benefits as when they marry heterosexual couples is a good one, even if the majority of religions and people in the United States will choose not to recognize gay unions as marriage for another decade or two or more.

Posted by: Bret | May 10, 2005 10:12:37 PM


Posted by: Dan Kervick

Don,

Correct me if I'm wrong, but during the reign of Elizabeth wasn't the Catholic Church engaged in an open struggle for the political domination of Europe against the various forces of the Reformation, with all sides bringing out the full spectrum of espionage, wars, assasinations, dipolomatic maneuverings, propaganda etc.? To say that it "exceeded its authority" when it excommunicated Elizabeth, or launched wars through its loyal princes in the attempt to bring rebellious regions to heel, or sent spies and covert agents to those regions, strikes me as strangely anachronistic. It is like saying the Communist Party of the Soviet Union "exceeded its authority" when it expelled dissident Bolsheviks from the party, suppressed the revolt in Hungary, sent missiles to Cuba and conducted espionage in the United States; or that the United States exceeded its authority when it sent troops to Vietnam, embargoed Cuba, flew spy missions over the Soviet Union, or cut off its support for Socialist and non-aligned governments.

In one sense, sure, yeah. There is a lot of throwing ones weight around in these actions. I guess you could call that "exceeding authority" in a comically understated, Wodehousian sort of way. But when there is a battle for great power, for hearts and minds, and it is the very nature of legitmate authority that is at stake, then there is really little point in talking in a literal sense about "exceeding authority". The very nature of such conlicts is that there is no settled, established system of authority, but a battle over who will gain supreme power, and who will win for themselves the victors' privilege of writing history and constituting oneself as an that chief authority.

Posted by: Dan Kervick | May 10, 2005 11:37:42 PM


Posted by: john t

Don H Forced as I am to earn my bread by the sweat of my brow I'm late getting back to you,blame it on Adam and Eve. Your 7:08 post appears to have a few holes in it,allow me. "Crucial to the understanding of liberalism---there is no such possibility. Later,"the inescapable fact of modern society is deep and wide diversity on fundamental issues---lots of liberal stratagiesfor dealing with this--get the stateout of spheres of ineliminable conflict--unless your an anarchist you can't ALWAYS do that". OK let's drop the straw man of that omnipresent anarchist shall we. By saying "can't always" you realize that it can be done,that is get the state out of etc etc. You also contradict the "logic of liberalism",which BTW I wish you would pass on the the NY Times. So much for impossibility. As for what "many citizens" believe,well my many outnumber your many and there is the matter of various state laws,amendments,and referenda,a basic fact of how a federalist system of government works, not to mention those few thousands of years of precedence and practice,usually ignored,which is why you probably attempt to compare "basic beliefs". Not to overdue rhetorical gestures but in reality that makes my beliefs more "basic" then the many whose beliefs you cite. This many of yours routinely express shock,anger,and sometimes rage that there is dissent out there and not just on gay marriage. Given the admittedly short response but having heard all the arguments before you may surmise that i don't see any need to rethink anything I've said on this post. Wanting something isn't sufficent reason for getting it,claiming a right doesn't mean you have the right,and protesting doesn't topple an ages old practice. As to the royalty remark,did my post show annoyance? In the name of brevity, I was referring to the sea of verbiage,today and other days,this site and other sites,other venues,the mistaken view of gov't power,a lot more was mentioned then the history you refer to. The history I had in mind was marriage,a history like all history ,spotted and imperfect but not to be disregarded and ignored.

Posted by: john t | May 10, 2005 11:56:01 PM


Posted by: john t

Terrier Re 2:53 post. Gee I wish I knew as much as you. Secular governments are a reaction to the excesses of the church. All secular governments Terrier?

Posted by: john t | May 11, 2005 12:10:11 AM


Posted by: Douglas Dukeman

So where are we? Paul has said of Don's original post:

The critics agree that your worry "that the Church has just exceeded its own rightful sphere of authority" is off the mark.

To which Don replied:

Thanks, Paul, but I'm still slow: I'm missing the argument that moves from the consensus you summon up to what's wrong with anything I said. Spell it out, could you? And while you're at it could you explain the difference between what the Church is doing now and what it did in 1570? Or do you think that in 1570 too the Church didn't exceed its authority?

As far as this part of the debate goes, I agree with Paul that there have certainly been some arguable doubts raised about the "authority" issue. And I have to ask, what exactly does Don mean by authority? If we assume for the sake of argument that he means to ask, "Has the Church exceeded its rights...?", then we see in this case at least two possibilities. One is that the Church has not exceeded its rights. What the Church has done, which is send out a standard communication from the Curia, no doubt over Vatican Radio and through its own channels to prelates in Spain, is simply exercise its right as an institution (comprised of individuals each with their own speech rights) to communicate freely with others. Since there isn't any law or official interpretation of the law (that I know of) in any affected jurisdiction that the Church has violated by communicating its message, it doesn't seem to have de jure exceeded its rights.

However, the second possibility is that, depending on your propensity to view the rights of the Church (and that of the individuals composing it) more in conditional terms (though those terms may have not manifested themselves in the interpretation of courts of law in the areas in question), it may have exceeded its rights de facto by urging people to refuse to grant marriage licenses, an action that certainly has the potential to harm those same-gender couples that wish to marry upon completing the prerequisite conditions of law. In this view then, when the Church or any individual harms another person by communicating this message, it/s/he has exceeded its limited right of speech.

However, I will assume that Don actually means "exceeding authority" and that by "authority" he means some kind of power that the Church has to enforce its own laws or exact obedience from its members. Certainly, the Church seems once again to have not exceeded its authority then if it acts to enforce its own laws and doctrines, the official content and interpretation of which are beholden ultimately only to the Pope. Laws and doctrines whose current papal interpretaion makes it the responsibility of all Catholics (clergy and laity) to call for, demand and expect the obedience of all Catholics' in putting their full efforts (always within moral limits) against the enactment of SSM legislation and its enforcement by Catholic public officials.

Simlarly, when talking about "authority" as exacting obedience from its members, the Church has once again not seemed to have gone too far. Because it is a religious body and has no ability to force obedience through physical threat or restraint that won't be checked by another body (namely government), the Church only has the authority to exact obedience from a Spanish public official when it is given that same authority by that same Spanish public official. In other words, if a Spanish public official heeds the Vatican's call to disobey Spanish law, they have given the Church the authority to make such a demand by admitting their need as a Catholic to obey. However, many of these persons will deny that the Church has such an authority. And with their denial of the Vatican's call, they have, by virtue of their right to be religious in whatever manner they please (within legal limits in Spain), not given the Church any authority at all that it can exceed.

Ultimately, government is the same way. It only has the authority in democracy that its citizens give it. As free and thinking human beings, we can refuse to obey any declaration placed on us. We can refuse to give authority to any entity. However, we realize that government can still excercise its power over us by firing us, imprisoning us, killing us, or simply shutting us up. It has the authority to do so depending on the authority that has been given to it. It is the same with the Church. The only difference is that the Church has the government in each nation (and militaries, police forces, etc.) to curb any desire it might have to kill us, imprison us, or shut us up. Governments themselves have no other entities to curb their power other than the people and their opposition.

The short of it - authority is a relational term, that is, it all depends on who is giving it and excercising it. And if a person gives the Church the right to order s/he around, then the Church has some authority. The same with government.

Posted by: Douglas Dukeman | May 11, 2005 2:00:00 AM


Posted by: Don Herzog

The sense of authority and jurisdiction I have in mind is assuredly not one of exceeding legal rights. Just as I would strenuously oppose efforts by the Spanish government to coerce priests into performing marriages, so I would decry as a crazed violation of free speech any effort to prevent the Church from getting out its message.

My initial post referred to "my worry that the Church has just exceeded its own rightful sphere of authority." A worry is not a fixed belief, but I'm happy to say more about the shape of the worry. Compare this case. Suppose -- shades of Galileo -- the Church today decides to instruct evolutionary biologists, or Catholic evolutionary biologists, what they must and must not say about scientific theory. I'd think, no, come on, this is meddling. And in thinking about that, again, I would not comb the statute books to see if the state had laws about protecting the autonomy of scientific enquiry. Or take the case of the nosy bossy neighbor, who regularly tells your teenaged daughter how to dress, what to eat, and the like. Not his business, we want to say, and again we don't mean there's a law on point, or that he should be silenced by the state. Or suppose your employer says he will fire anyone who doesn't take communion -- or anyone who does. I wouldn't shrug and say, his firm, he can impose whatever conditions he likes. I'd think he was way out of bounds.

James Oakes has a helpful frame -- we're used to thinking that "the separation of church and state" requires certain things of the state. But so too it seems to require certain things of the church. Now on this blog (and elsewhere) I have repeatedly expressed my skepticism about "separation" talk, because it's a terribly clumsy and vague abstraction. But some of the principles animating it are great, not least the set of strategies it takes to replace religious civil war with peaceful pluralism.

So to get back to Mr. Ridgely's pressing question -- how might I think about what the rightful boundaries of authority here are? Well, that's a big complex task in social and political theory. Briefly, we live in a society with many different institutions. Each handles certain tasks, exercises authority in some domains and not others, and so on. And the boundaries between institutions move over time and can be controversial. So -- here's the mix of prudence and right I mentioned before -- if you think, gee, behavior like this from the Church will not just create political conflict, it threatens to ignite a very ugly form of conflict that the West has mostly put behind it, you have an argument for thinking the Church is trespassing. Some commenters here were skeptical of my claim that Crèvecoeur's America really did or should include atheists. But if you don't think it a fabulous -- that is, valuable and kind of unbelievable alike -- accomplishment to have a decent society with robust religious pluralism, you don't have to read the history books. Read the newspapers.

Finally, though this post really is not about gay marriage at all, some comments sure are. I should perhaps have quoted from the article in my initial link: "a survey last year showed 70 percent of the country [Spain] supported gay marriage." I do not for an instant believe that whatever a majority wants to do is necessarily right. But those of you who have been aggrieved by "judicial activism" in this country should think through whether you have any objections to the Spanish legislature's action past thinking their majority got it wrong.

Posted by: Don Herzog | May 11, 2005 7:42:16 AM


Posted by: Larry

David Vellman: As I understand Don, he is posing an extremely subtle question. Granting that Catholic (and other) Spanish officials are entitled to conscientiously disobey, perhaps on religious grounds, the question remains whether the Church ought to oppose its institutional authority to the authority exercised by a government that it concedes to be legitimate.

A good question, but not subtle enough. Would there be no religious or moral limit to "a government that it concedes to be legitimate"? No point at which the Church would feel duty-bound to oppose its institutional authority to the authority exercised by such a government? Not even if such a legitimately constituted government were to institute state-supported racial segregation, say, or state-mandated teaching of racial inferiority in schools? Perhaps you'd want to say that, at such a point the government itself has exceeded its legitimate authority. Fine, then apply that here.

But perhaps, after all, this is a post about gay marriage.

Posted by: Larry | May 11, 2005 8:41:23 AM


Posted by: Josh Jasper

Bret:Ummm, well yeah. Most religions claim theirs to be the only True one, so of course, each thinks the other isn't real. I don't think there is anything we can do about that one without abolishing religion completely.

Oops. My mistake, I should have included *LEGALY* before "not real".

Posted by: Josh Jasper | May 11, 2005 8:42:21 AM


Posted by: Tom Perkins

"Some commenters here were skeptical of my claim that Crèvecoeur's America really did or should include atheists."

The point wasn't that Crevecour's America "shouldn't" or "didn't" include atheists, it was that while atheists were certainly there, and some Founding Fathers were probably themselves atheists, it is that Crevecour's America wasn't then and has not yet evolved to be atheistic or strictly secular, either in the public at large or the appearance of the public works and policies of the government and officials they elect.

Also, the separation of church and state really is a one way wall, in that the First Amendment prohibits the government from interfering in the religious lives of the citizenry (at least the sort of interference they were anticipating--I don't think they'd have a problem with the govt suppressing an Aztec death cult). Citizens acting for religious reasons are free to influence governemnt with their own votes, and they are free to use persuasion to influence the votes of others.

Yours, TDP, ml, msl, & pfpp

Posted by: Tom Perkins | May 11, 2005 9:23:28 AM


Posted by: D.A. Ridgely

Several points. First, I once believed the West had indeed largely put behind it the “very ugly form of conflict” between religious and civil authorities, but I am less optimistic these days. (Whether the 21st century will witness church / state or mosque / state wars is another interesting question, though many of my evangelical Christian friends are convinced that a church / mosque war is already under way.)

We decide these balance of power and authority sorts of questions as a civil society, taking into consideration the unavoidable nature of pluralism, by trying to balance conflicting rights and interests, benefits and harms, etc. So we end up with a rough consensus (which I think has always been far more thin than we’d like to believe) that anyone can believe any cockamamie thing he wants to believe but there are strict limits on the extent to which he will be permitted to act on those beliefs.

This is all very reasonable from a secular, pluralistic perspective; but, of course, it is utterly unacceptable from the dogmatic theist’s point of view. I use dogmatic here, by the way, in its non-pejorative sense. In that sense, as I’m sure Roman Catholics would agree, Roman Catholicism is a dogmatic religion, whereas contemporary Unitarian Universalism (whether it continues to qualify as a religion or not) is clearly not dogmatic.

The dogmatic theist says “This is what God is like, this is what God requires, and if the state disagrees or opposes God’s will, then the state (literally) be damned.” I think we need to keep this in mind if we are to sort out why, for example, Rome may correctly, from its point of view, come to the conclusion that it cannot keep out of state affairs in the manner we want our meddling neighbor to stop mentioning that our daughter dresses like a slut. Put slightly differently, unless it is a religion’s theological doctrine that God’s will is made known through pluralistic, majoritarian sorts of processes, it makes no sense for that religion to accept those processes except, grudgingly, as a temporary situation.

From that point of view, also, for the dogmatic theist forced to choose between God and the state, the answer, however painful, is a no-brainer. Of course God wins that one even if the theists’ belief in that particular case is that God’s will is the overthrow of the secular, pluralistic state. From this internal perspective, the only competent authority to determine the “rightful sphere of authority” of the church is the church, itself.

Obviously, the state, on behalf of all those outside that religious perspective, can and must say no to any number of the demands those inside that perspective might feel called to make of society at large. (After all, if it really is God’s will, the state will not be able to prevent it, and if it turns out not to be God’s will, the state will have properly opposed it.) So, by all means fire civil servants who refuse to do what their job requires (as opposed to what it might merely permit) and impeach elected officials if their nonfeasance is considered sufficiently egregious by the body politic. Now, what do we do about the candidate for office who runs on a platform of nonfeasance (“If elected, I won’t marry gays!” or whatever) and is elected?

Posted by: D.A. Ridgely | May 11, 2005 9:29:37 AM


The comments to this entry are closed.

« previous post | Main | next post »