Thoughts on DOMA and a Reaction Roundup! – UPDATES

My First Thought on hearing the big news might surprise you:

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In other words, “Keep Calm and Catholic On”. In terms of pure law, DOMA was unconstitutional and was not surprisingly struck down.

Seriously, though, I have nothing more to say on the DOMA story than I already laid out, here, and the Gay Marriage angle only solidifies it: Civil unions (which I support) will not be enough. I suspect the churches to quickly be expected to conform to the zeitgeist or (first) lose tax-exempt status, and (later) face more sever retribution if it continues to be stubborn. Eventually, we’ll see schism and the quick establishment of an American Catholic Church, which will thrive, because everyone will feel good about themselves within it and no one will risk anything by sitting in its pews. Period, full stop.

It is interesting to watch the conversations going on in social media, though. While today’s ruling doesn’t legalize gay marriage in any definitive way, it’s being received by all sides as though it does.

So, let’s take a look around at first thoughts and reactions:

This from the twitter feed of @GabrielMalor, who you should be following because he is a lawyer and a very smart fellow:

To the folks worried about religious liberty, please for the love of Pete, turn your attention to public accommodation laws. That’s where religious liberty is vulnerable because public accommodation laws do not treat businesses as religious. The florist and the community center were sued not under marriage laws, but under public accommodation laws. In the famous florist case, and the beach pagoda case, those states didn’t even have (and still don’t have) gay marriage.

I agree with Gabriel that the accommodation laws will be where businesses are going to get hurt. He and I are currently disagreeing over the churches losing tax-exempt status. Acknowledging that the tax-exemptions for churches exist only at the pleasure of the government, he believes the public would never support an administration going after churches.

Well, normally, they wouldn’t. One reason the churches have been left alone while doing battle on divorce, abortion, contraception, et al, is that people can see a germ of credible moral conflict in those issues and therefore can give a church its right to make an argument. On gay marriage, however, the issue is love and marriage. “What’s wrong with love? How can anyone be against marriage, when our society is so screwed up? And besides, I know and love someone who is gay, so…”

On gay marriage, the churches — especially the Catholic church — have lost to the sentimentalists. They’ve very successfully been caricatured (and in some ways have assisted in the drawings) as hateful, mean, unloving, intolerant and behind-the-times. All of that being presumed true (and man oh man, are we paying for forty years of bad catechesis, now!) the public will not have an issue with the government stripping the churches of their tax-exemptions. The public will not feel like it has abandoned the churches (or chosen state over church) because it will have that enlightened American Catholic Church to join as they escape from dreaded Rome. Who can blame the government from going after that other church!

It seems likely to me that fed and local governments have been going out of their ways to taunt the church (HHS Mandate that was wholly unnecessary) and to unpartner from it wherever possible (adoption, human trafficking) because the end game has always been to toss her overboard. Lots of property, lots of money to be gained through fees, fines, penalties and legal awards, after all.

Getting back to reactions:

Laugh-out-loud headline of the day: Hillary and Bill Clinton Hail Supreme Court Ruling. Notice that her name now comes first. I find this Hill-arious, as of course, the DOMA was Bill’s baby, but even moreso because Hillary was pretty much the last Democrat to “evolve” and come out in favor of gay marriage. She even made Bill “evolve” first to make sure the coast was clear. There is no more careful politician than Hillary Clinton. She is only brave after the troops have all been slain and the treaties signed, then she gallops right in there, like a champ!


“Today is a tragic day for marriage and our nation. The Supreme Court has dealt a profound injustice to the American people by striking down in part the federal Defense of Marriage Act. The Court got it wrong. The federal government ought to respect the truth that marriage is the union of one man and one woman, even where states fail to do so. The preservation of liberty and justice requires that all laws, federal and state, respect the truth, including the truth about marriage. It is also unfortunate that the Court did not take the opportunity to uphold California’s Proposition 8 but instead decided not to rule on the matter. The common good of all, especially our children, depends upon a society that strives to uphold the truth of marriage. Now is the time to redouble our efforts in witness to this truth. These decisions are part of a public debate of great consequence. The future of marriage and the well-being of our society hang in the balance.

Because the court has ruled on civil marriage, many people seem to think the church has no business commenting. But the church is — at this point — still duly appointed to perform marriages on behalf of the state. While that is true, they have a right to comment and even when it is no longer true, and churches are only empowered to sacralize marriage, they will still have that right under the constitution. But the bishops can see the writing on the wall.

In terms of zeitgeist, though SCOTUS has followed the culture:

While Justice Kennedy derided the willingness of Congress to step into what most Americans consider a point about morality and to, in effect, discriminate against gay couples, the question of whether such discrimination is legal or not has always tended to be based on popular opinion as much as law. This is a key point because as Justice Antonin Scalia pointed out in his dissent in the 5-4 vote on DOMA, Congress has always considered itself to have the right to legislate on morality. But that is only true so long as there is a consensus about what is moral and what is not. In the 1990s, the long held consensus that the traditional definition of marriage is the only one the government should recognize still held. If that is no longer true, and it is obvious that this is the case, then it is inevitable that the law will follow the culture.

Between Scalia and Kennedy:

Scalia says that the court’s holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

And, he says, the holding will short circuit the debate over gay marriage that should have been carried out in the states.

Be careful, Nino, don’t want to give yourself a heart attack and let Obama name your replacement!

Terry Mattingly notices this too, noting the deep division among Catholics in America and on the high court:

Now, who are the members of the court who are known to be active, practicing Catholics and don’t mind people knowing that?

And, who are the Catholics with Kennedy on the other side of the issue? Who are the other members of the high court who are consistently identified as “cultural” Catholics who are not known to be active at the level of parishes and regular participation in the sacraments?

At least at the level of the U.S. Supreme Court, this stark division among American Catholics — the weekly Mass attenders vs. the cultural Catholics — seems to be an important element of the story of the day

UPDATE: Meant to add this strong piece From First Things on how pop-culture has changed the marriage debate:

Christianity, particularly Catholicism, receives the brunt of Macklemore’s disdain: “When I was at church they taught me something else / If you preach hate at the service those words aren’t anointed / That holy water that you soak in has been poisoned.” Yet rather than reject the heritage outright, he transposes it, claiming both that “we paraphrase a book written thirty-five-hundred years ago / I don’t know,” while repeating “Love is patient / Love is kind / Love is patient / Love is kind / (I’m not crying on Sundays).” [...] We can’t abandon the intellectual task of argument and research, or the political task of law and public policy, or education. All these are necessary and worth doing, but we also need the collaboration and help of artists, musicians, cinematographers, and poets, partly to show the beauty of conjugal marriage, but also, and perhaps more so, to tell the bigger story of the Church’s mission for dignity. So long as holy water means poison and Humanae Vitae is linked to burning crosses, our arguments will be received as abstract and inhumane moralism rather than the civilization of love they express in their own, faltering way.

Hmmm…closest we get to that is here.

Meanwhile, Ross Douthat argues that gay marriage proponents will be more magnanimous today than they will tomorrow.

. . .the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular. If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.

Annnnd another roundup!

Kathryn Lopez: What’s Freedom to the White House?

A good time to again read the mighty Eve Tushnet

Deacon Greg links to background info

Simcha Fisher: Can we save infidelity?

Rebecca Hamilton: Not having any of that “Keep Calm” stuff

About Elizabeth Scalia
  • Derry

    Oh, Elizabeth….this post would be SO much better if you would acknowledge that there are many, many Catholics who are in positions of influence who support gay marriage. My Facebook feed has been flying with equal signs for weeks, and most of them from Catholics who work in the Church in some capacity. *You know this*. You know the friends of yours who are supportive of gay marriage and who are even in gay “marriages” themselves. They work in Catholic institutions and in Catholic publishing. I wish you would suck it up and take on those people – in a spirit of charity, but still. There is a lot of deception going on right now – people flying the Catholic flag while at the same time participating in gay “wedding” ceremonies and cheering the guys/gals on.

  • MeanLizzie

    :::”…if you would acknowledge that there are many, many Catholics who are in positions of influence who support gay marriage.”:::

    Why? It’s quite obvious and in our faces, every day.

    *You Know This* What is it you’re trying to say? That I know some secret thing that others don’t? What exactly is it you want me to do by “sucking it up and taking on those people”? Do you mean you want me to ‘call ‘em out and condemn them by name’? Sorry. If you’ve read me for any length of time, you know I don’t take inventory of other people’s souls, because I know how sinful I am myself. Are you the person who emailed me recently? I think I wrote this for you:

  • vox borealis

    Elizabeth, I am curious if you will expand on your support for civil unions (maybe you have elsewhere and I missed it). I mean, as I understand it, the Church has been strongly against civil unionssave for a few official voices here and here, because they are marriages-in-name-only and further erode the institution of marriage, and would thus seem to go against the common good in the context of natural law (which the catchism teaches is the goal of civil law). I am not trying to be confrontational, but I do find it hard from a Catholic perspective to support civil unions.

  • vox borealis

    It is possible to call someone out for their actions without condemning their souls, no?

  • Daniel McGiffin

    American Catholic Church? How very Walker Percy of you. It’s spot on

  • NDLAW2013

    As a lawyer, I disagree with your assessment that as a piece of legislation, DOMA was unconstitutional. Look at the 5th amendment, it doesn’t say anything about ‘equal freedoms’.

  • MeanLizzie

    Secular people with no allegiance to a church want to set up a secular union? It’s what it is. My concern is always to protect the churches. But frankly, I don’t think it’s possible to do so.

  • A Methodist

    I’m just happy this week on the church calendar surrounds us with examples of those who lived… and died… for Christ: Thomas More & John Fisher, John the Baptist, Irenaeus, and Peter & Paul.

  • vox borealis

    I see what you’re saying, and maybe I am quibbling with the use of the word “support,” but I can’t square supporting civil unions with a Catholic understanding of marriage. I too have thought about it from a tactical perspective, that civil unions might forestall further attacks on the church, but in the long run it’s loser’s game, I think. In the end, the Church ends up in the catacombs.

    Secular people setting up a secular union? We have that. It’s called a contract. No, it’s obvious that “civil unions” are and indeed are aimed to be so much more than that. If we want to defend marriage in substance rather than simply semantically, I can’t see a way to support them. Moreover, I think attempts to reconcile support for civil unions with support for marriage has only muddied the waters.

    That’s my view in any case. But as you hint at in your last sentence, it really doesn’t matter.

  • MeanLizzie

    What I do privately is private. I’m not a performing monkey. I do not demonstrate my faith-bona fides for the satisfaction of anyone, nor do I demonstrate my “love” for anyone either. I don’t “name” people and hold them up for public examination unless, you know…they’re politicians. :-) And then it’s never about their souls.

  • vox borealis

    As an addendum, from Archbishop Chaput’s statement on the ruling: “Same-sex unions, whatever legal form they take, cannot create new life. They cannot duplicate the love of a man and woman. But they do copy marriage and family, and in the process, they compete with and diminish the uniquely important status of both. The legal battle about marriage will continue. And the Church’s commitment to promote the authentic meaning of marriage and family will be vigorously pursued.” I guess that’s what I was trying to get at, though I probably lack Chaput’s stated resolve…I’m far more pessimistic.

  • MeanLizzie

    It’s less about forestalling anything. What’s going to happen is going to happen. And perhaps some of this is coming about b/c Americans have to a point made something of an idol of their ideologies and the nation…which is a good way to get corrected. But it’s about something else, too…I’m not at liberty to talk or write about it, b/c a) I haven’t thought it through soundly and b) I have to know/talk more, but I had conversations with a number of Catholics — all of them quite faithful — who seemed to feel that the church is going to have to find a way to acknowledge homosexual love as a genuine expression of love, without, perhaps the physical.

    I inched toward it last week in my FT column, when I brought up Agape. It wouldn’t be enough to satisfy anyone, of course it wouldn’t. And yet, there are people who love, and the love is love. These folks I was talking to were saying, “how can the church acknowledge the reality of the love while still teaching sexual continence, natural law, etc….”

    I don’t have the answer but I think it’s interesting that the question was being asked, and wonder,, myself,, whether it is meant to be a search for prophetic revelation or simply a means of “forestalling” the inevitable.

  • Bishop Edmund (independent,)

    Oh, come on! The “American Catholic Church” is the sum of Spirit-of-Vatican-II-worshiping, contracepting, doctrine-lite, easy-peasy cultural Catholics who form the overwhelming majority in America…lay and clerical. I’ll bet your parish has a “terrific” permanent deacon who’s been married twenty years, and has two kids. You rolled over on HHS, and you’ll roll over on this, because at the end of the day it’s not really about the Faith, but a lifestyle package that you’re invested in. The sky isn’t falling—you’ve stuck your heads in the sand. You want an end to gay marriage, or as you call it “gay “marriage””? Reinstitute Corpus Christi processions. You’re laughing now—but you’re also losing.

  • vox borealis

    Interesting. But regarding this: but I had conversations with a number of Catholics — all of them quite faithful — who seemed to feel that the church is going to have to find a way to acknowledge homosexual love as a genuine expression of love, without, perhaps the physical.

    Doesn’t the Church already acknowledge such love? More importantly, will anyone outside the Church—especially those pushing for same sex “marriage” and/or civil unions—really be satisfied with that? The push for civil unions at its core seeks not only acknowledgment but also approval of same-sex *physical* love. And what will follow, as you hint at with the comment about protecting the churches, is the punishment of those individuals, groups and institutions who do not shower their approval on same sex sex. I disagree with Mark Shea on much, but on this topic he is spot on, I think.

    OK, enough for now..I’m not trying to badger you.

  • Karen Hall

    Looks like we’re going to get that smaller, purer Church. I wonder what we’ll call it, because the Church has let Pelosi & Company co-opt “Catholic.”

  • MeanLizzie

    “I” rolled over on HHS mandate? Oh, my….you’re not a regular reader, I guess. I don’t think the sky is falling, either. I think we’re about to head into some interesting times.

  • SteveP

    I think idolatry covers it all – the idol named Federal
    benefits, the idol named Equality, the idol named “Getting the love you deserve”, etc. Perhaps this coming generation will knock Eros off its pedestal to its proper place?

  • Adam Frey

    I’m no expert on Agape, but wouldn’t this simply be the concept of “fraternal love”? Loving someone because you share a special bond with them, but not on a physical dimension. Some gay-marriage advocates like to identify the relationship between David and Jonathan in the Bible as a gay relationship, but it’s not; it’s a close bond between two guys, but it’s not on a romantic or physical level.

    (This is why I hate the English language: we have too many words that have too many meanings. I’ve always said that you can love your wife, you can love your mother, and you can love ice cream, but you sure better not love them all the same way.)

  • MeanLizzie
  • Manny

    I disagree on the unconstitutionality of DOMA. Does the federal government have the right to establish policy across state boundaries or not if they should pass such legislation? Four judges who I highly admire agreed with me. I’m no lawyer but frankly I’ve come to the conclusion they make up what they want to see as they go along. The constitution is meaningless. It’s all the zeitgeist of the moment. First they see a means for the government to force people to buy health insurance, and now this? This country has become a banana republic. To hell with her.

  • MTDave

    When you predict the formation of an “American Catholic Church,” are you deliberately echoing Bonhoeffer’s (and others’) experience with the German Christian movement of the 1930′s?

  • Todd Flowerday

    My hope is that Catholics can now get out of the political realm with DOMA deep-sixed and get on with apostolic witness.
    Archbishop Cordileone was right to say that regardless of today’s ruling, we still would have had a lot of work to do. Throwing support into Catholic sacramental marriages would be a great step now. Bishops getting behind engaged encounter and pastors recruiting couples who live the ideals to provide assistance and good example for the engaged and newly married.
    Catholicism has a lot to be joyful about and to celebrate and support in its marriages. Time to show there’s a better way rather than just throw money at a problem and point fingers.

  • Thomas R

    I think an “American Catholic Church” may form, but I don’t think it will particularly thrive. The Catholics who disagree with the Church most tend not to be especially religious at all. Yeah we hear of really vocal, really active, “dissident Catholics” but their actual numbers I believe are fairly low.
    More likely such a Church would end up a bit like the Episcopalians or “Mainline” Protestants. Lots of “Christmas and Easter” members, but not much real activity. Because if a religion’s just going to echo the popular culture it would arguably make more sense to just go to the movies, or spend Sunday watching TV, and get pop-culture directly.

  • Dave


    Try this website out for working on the subject of love. I think it cuts across any orientation and merges Agape/Eros – into Friendship.

    Then their is Pope Benedict’s God is Love Encyclical.


  • GuestAgain

    It’s already here. Apparently, it’s the church we’ve been praying for:

  • GuestAgain
  • oregon catholic

    One of the reasons we have so much trouble condemning abortion and homosexual sex is because so many people have someone they know and love who has been involved in one or the other. We have lost the ability to separate the sinner from the sin. Therefore, we can’t offer correction or hear correction because it breaks the friendship. And many feel the need to even go beyond just staying silent and convince themselves to actually support the sin in order to keep the relationship friendly. It’s a double edged tyranny.

  • MTDave

    so, basically, the American flavor of Episcopalians.