Well, the battle over same-sex marriage is right where everyone expected it to be at this point. As the New York Times analysis noted, it’s pretty clear that Judge Vaughn R. Walker’s opinion was written to an audience of one.
Even some of those who applauded the opinion, however, said the path ahead for it is not clear or easy. Associate Professor Doug NeJaime at Loyola Law School, Los Angeles said while Judge Walker’s ruling he found “a great opinion,” he was skeptical of the strategy to take a marriage case through the federal courts. Despite Judge Walker’s efforts to set a factual foundation and the traditions of deference, he said, the Supreme Court is not completely constrained by lower court findings of fact. …
Professor NeJaime suggested the case might turn on the Court’s traditional swing vote, Anthony M. Kennedy, who has shaped decisions that strike down laws that discriminate against gays and lesbians. The rational basis test used by Judge Walker is in line with the standard used by Justice Kennedy in such cases as Lawrence v. Texas, which struck down a state sodomy law. By structuring an opinion that allows the Court to use the lower level of scrutiny, Judge Walker “is speaking to Justice Kennedy,” he said.
This means, of course, that this decision will almost certainly come down to a debate on the high court between Catholics who go to church and those who do not.
Two related issues leap to mind. The first, raised the other day in the Boston Globe, is the old question of who gets to decide who is a Catholic and who is not. Journalists tend to lean toward the American-individualism-rules model.
At the same time, it is interesting to look at the Catholics on the court through the lens of that “four kinds of Catholic voters” typology that I was given several years ago by a veteran priest here inside the Beltway. Here’s that grid, once again:
* Ex-Catholics. Solid for the Democrats. Cultural conservatives have no chance.
* Cultural Catholics who may go to church a few times a year. … This group leans to Democrats.
* Sunday-morning American Catholics. This voter is a regular in the pew and may even play some leadership role in the parish. These are the Catholic voters who are really up for grabs — the true swing voters.
* The “sweats the details” Catholic, the kind who regularly goes confession, is active in the full sacramental life of the parish and almost always backs the Vatican, when it comes to matters of faith and practice. This is a very small slice of the American Catholic pie.
So who is who on the court?
The broader question for the day is quite simple: How do journalists describe Catholics who are not active in all of the sacraments of the Catholic faith? In other words, what is the difference between a “Catholic” justice, a “culturally Catholic” justice, a “lapsed Catholic” justice and an “ex-Catholic” justice (the latter a term that one will hardly ever see in mainstream print).
A related topic came up the other day in a fascinating online discussion at the website of WBUR, the NPR operation in Boston.
Here is the context of the discussion, as framed by Andrew Phelps:
What do you call a Catholic who stops going to church for a few years? What about someone who disposes of the faith altogether?
The Catholic church calls them “lapsed Catholics,” a term that Radio Boston host Meghna Chakrabarti used … when talking with representatives of the Boston Archdiocese. The church’s new ad campaign, “Catholics Come Home,” is designed to lure strays back to flock.
On wbur.org, Lynn Annen commented:
I find the term insulting. The Catholic Church might want to refer to me as a “lapsed Catholic”, but I am very happy to call myself an Episcopalian!
Read it all. This is actually a very important issue in coverage of public battles over issues of faith and culture. In my experience, your typical mainstream newsroom contains a flock of former or lapsed or ex-Catholics and this reality tends to play a major role in news coverage of Catholic/social issues.
As you will see in the WBUR discussion, this debate affects millions of Americans — including several members of the U.S. Supreme Court. The real question: What do you call people (including justices) who are no longer practicing the Catholic faith, yet insist they are still Catholic?
The standard answer is that you let the person define themselves. Is that enough in this case, when there are actual facts at stake about membership, facts that are historically determined by the church itself?