Thoughts on DOMA and a Reaction Roundup! – UPDATES

Thoughts on DOMA and a Reaction Roundup! – UPDATES June 26, 2013

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

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

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