... and makes what might be called an "interesting" (that is, strange) proposition of his own, in the pages of The San Francisco Chronicle, in a piece co-authored with Shelley Ross Saxer:
Some faiths accept same-sex relationships and others profoundly object. As a matter of religious freedom, both must be accommodated, but how? Separate state and church. Prop. 8 keeps the state - not the church - from using the terminology of marriage to officially acknowledge a same-sex relationship. That's all it does. Prop. 8 should not be thought of, as some argue, as revoking rights granted by an activist judiciary.
Which means, apparently, that since various religions have differing beliefs about certain actions and institutions, and since the courts should strictly observe a the separation of church and state, the courts should not use any language or arguments that might appear religious in nature. Which leads to this:
-- Honor the stated intent of Prop. 8 (viz., precluding the state from using marriage terminology to officially acknowledge any relationship other than that of a male-female couple) - an important goal to be faithful to the people as well, but one which cannot be accomplished by undermining the principal one of equality.
-- Direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent. While new terminology for all may at first seem awkward - mostly in greeting card shops - the third step dovetails with the court's important responsibility to reaffirm the unfettered freedom of all faiths to extend the nomenclature of marriage as their traditions allow.
If I understand Kmiec and Saxer correctly, they are saying that the state should no longer use any language normally connected with marriage, including terms such as "marriage" and "married." The gratuitous assumption is that because marriage is supposedly of religious origin, in a civil order that legally distinguishes between state and church, there is no state interest or purpose in defining marriage as union between one man and one woman. But how does that follow? A good case can be made, historically speaking, for the religious origin of laws against murder, theft, rape, and, yes, slavery. Shall we have a state-neutral stance regarding those activities?
Not even the Catholic Church, the only major defender and protector of marriage still left in the West, it seems, holds marriage to be of religious origin. Canon 1055 of the 1983 Code of Canon Law describes marriage as a natural institution, to which some important sacramental qualities have been added in certain cases, but not in such a way as to destroy the fundamental natural basis of the relationship. Marriage has been recognized as a natural institution down through thousands of years of history, all around the world, across numerous cultures and religions. How is it that a California Supreme Court opinion that had been in place for only a few months has already established a fundamental right that cannot be trumped by an institution whose nature has been known for thousands of years?
The 2003 CDF document, "Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons," presented by then-Cardinal Ratzinger, contains some passages worth for Catholics (and others) to ponder:
There are absolutely no grounds for considering homosexual unions to be in any way similar or even remotely analogous to God's plan for marriage and family. Marriage is holy, while homosexual acts go against the natural moral law. Homosexual acts “close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Under no circumstances can they be approved”. (par 4)
Moral conscience requires that, in every occasion, Christians give witness to the whole moral truth, which is contradicted both by approval of homosexual acts and unjust discrimination against homosexual persons. Therefore, discreet and prudent actions can be effective; these might involve: unmasking the way in which such tolerance might be exploited or used in the service of ideology; stating clearly the immoral nature of these unions; reminding the government of the need to contain the phenomenon within certain limits so as to safeguard public morality and, above all, to avoid exposing young people to erroneous ideas about sexuality and marriage that would deprive them of their necessary defences and contribute to the spread of the phenomenon. Those who would move from tolerance to the legitimization of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalization of evil is something far different from the toleration of evil. 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. (par 5; emphasis added)
• If I understand Douglas W. Kmiec's argument correctly... (Feb. 22, 2009)
Related IgnatiusInsight.com Articles and Book Excerpts:
• Marital and Family Commitment: A Personalist View | Monsignor Cormac Burke
• Entering Marriage with Eyes Wide Open | Edward Peters
• Human Sexuality and the Catholic Church | Donald P. Asci | Introduction to The Conjugal Act as a Personal Act
• Who Is Married? | Edward Peters
• Marriage and the Family in Casti Connubii and Humanae Vitae | Reverend Michael Hull, S.T.D.
• Male and Female He Created Them | Cardinal Estevez
• The Meaning and Necessity of Spiritual Fatherhood | Deacon Harold Burke-Sivers, MTS
• Practicing Chastity in an Unchaste Age | Bishop Joseph F. Martino
• The Truth About Conscience | John F. Kippley | An excerpt from Sex and the Marriage Covenant