Douglas Kmiec comes out against Proposition 8...

... 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:

The argument for Prop. 8 must be resisted for two reasons: First, because it gives the proposition a far broader discriminatory effect than its language warrants, and second, the proposition is oblivious to the differing faith practices of our citizens. Marriage is of religious origin; it should remain there. Indeed, neither the original court decision nor Prop. 8 showed adequate recognition of the religious nature of marriage, so Thursday's case can be a do-over.

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:

The Church's teaching on marriage and on the complementarity of the sexes reiterates a truth that is evident to right reason and recognized as such by all the major cultures of the world. Marriage is not just any relationship between human beings. It was established by the Creator with its own nature, essential properties and purpose. No ideology can erase from the human spirit the certainty that marriage exists solely between a man and a woman, who by mutual personal gift, proper and exclusive to themselves, tend toward the communion of their persons. (par 2)
 
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

Comments

[Bryan]

"Marriage is of religious origin..."

I'd be interested to see how Mr. Kmiec would explain the marriages found in cultures before they were visited by "the west." Of course, we have an answer for it (natural law), but no matter how many times we say it the same old straw man keeps coming out.

I'm so sick of this guy.

[T. Shaw]

"First, we kill all the lawyers!" Shakespeare

There is a huge amount of truth in every lawyer joke.

" . . . make no law respecting an establishment of religion, or prohibiting the free exercise thereof, . . . "

What a maroon. Aztecs, Molechites, etc. sacrificed human beings. So, does it also follow that to "separate church and state" the state cannot outlaw human sacrifice? Or, bestiality, incest or polygamy???

Herein he's augments his main stream media-defined "prominent Catholic" credentials.

If ever he agreed with the faith and morals teachings of the Roman Catholic Church, he wouldn't be "prominent" and he wouldn't get published.

[Dan Deeny]

Prof. Kmiec has gone around the bend.

[brendon]

...undermining the principal one of equality.

Why should equality be a goal of the law at all? Justice is the goal of the law. And justice involves treating unequal things unequally. To treat unequal things - e.g. marriage and sodomy - as if they were equal is a violation of justice.

Direct the state to employ non-marriage terminology for all couples - be it civil union or some equivalent.

Kmiec is a nominalist, pure and simple. No natures, just names. They're all the same thing if we call 'em by the same name.

Contemptible. He's selling his birthright for a mess of pottage - or a pot of message.

[Mary Ann Eiler]

In all of the discussions I read about the true nature of marriage, I am confounded by the historical ignorance of so many pundits. In the West (Europe) at least, from the 7th or 6th century BC on, marriage was understood as something that needed to be/and was the concern of the state because it was through marriage that future citizens were to be procured. Thus, in something as pedestrian as a 4th century BC rhetorical handbook. one finds a definition of marriage given as follows: "Marriage is the union of a man and a woman for the sake of the procreation of legitimate children." (Notice: nothing about pleasure, self-fulfillment, etc---procreation of legitimate children is the purpose of marriage here because only legitimate children could be citizerns in ancient Greece and Rome.) There is an immense bibliography on marriage in Greece and Rome (and other early societies--down to modern times), so there is no excuse for at least some people not knowing the truth--that marriage is NOT a religious institution--but no one is interested in the facts.

Of course the Code of Canon Law recognizes that marriage is a natural institution! The Church always has! When we look to the early Church, we see that marriage was understood as a matter that primarily concerned the family and the State. Thus, St. Ignatius' of Antioch's insistence that the Church has a role in the marriage refers to confering a blessing on the couple, and not to the performing of the marriage ceremony per se. St. Ignatius was the first churchman to talk about the church's role in marriage (and he did so in a couple of passing comments). It does not seem as though his advice was taken seriously for some centuries--at least there is a gap of several centuries before we begin to see the Church actually getting involved in marriage. And it would be many more centuries before "church marriages", as the only form of marriage, came to be the accepted practice. What there would be is the traditional marriage ceremony (family-oriented and -run, with minimal state oversight)--what we now call a "civil ceremony"-- followed by the Church's blessing, given by a bishop or priest at another time.

In the case of someone like Kmiec, who ought to know his Christian history better, one suspects that the ignorance may be culpable--because knowledge of the facts would not dispose one to such liberal nonsense.

[Joe]

Thanks for the helpful post.

Kmiec has succumbed to the California Kool-Aid.

[PM]

Carl,
Thank you so much for pointing out and commenting on these ridiculous statements by people like Doug Kmiec. Your commentary is intelligent and dead on.

[Bones]

It sounds like Doug Kmiec is in love with his new reputation as a grudingly unfaithful, leftist Catholic with the media. I honestly have no idea why this guy keeps popping up as everyone's new favourite Catholicish commentator. Where's McBrien and Kung? Too wrinkly for teevee?

[John Howard]

Wow, I had hope for him. Prop 8 wasn't about terminology, it was about the legal status of marriage, which is called marriage. The May decision, on the other hand, WAS about terminology. They explicitly said that the only question in front of them was whether there can be two names for the same bundle of rights, and they said that no, that bundle of rights must be called marriage for everyone. Though Prop 8 said nothing about DP's, the court's decision still stands and therefore means that Prop 8 says that those DP's are not valid or recognized in California either. What is the bundle of rights? At the heart of it, at its most essential and basic, is the right to conceive children together, which is why the state doesn't allow couples that are prohibited from conceiving together to marry, such as siblings. Is Kmeic saying that the state should get out of the business of approving and protecting conception rights for couples, and just let siblings procreate if they are consenting adults, or let same-sex couples use new genetic-engineering techniques to allow them to procreate together? Or is he saying that it should separate that question from marriage and strip conception rights from marriage so that couples that are prohibited can marry anyway?

And I'm not religious, I don't care if a religion blesses my union, I want my civil authority, my country, my ceasar, to bestow approval and protections on the procreative potential of my union. I want to beam with pride that me and my spouse are now actually allowed to have sex and make babies, the same way my parents were and their parents and their parents, etc. I don't want the state to withhold that civil right from me and perhaps even deny us the right to conceive with our own genes if they don't like our genes. The state should protect my natural conception rights.

My Egg and Sperm Civil Union Compromise preserves marriage as a man and a woman without having to do an FMA and without relying on a gentleman's agreement not to contest DOMA: It does it by three laws centered around conception rights, which become the distinction between Civil unions and marriage. Congress would say that no state can allow a same-sex couple to attempt to conceive together using their own genes, and that no state can prohibit any marriage from conceiving together using their own genes, thereby making it impossible for a state to have same-sex marriages. In return, they'd agree to give federal recognition to state civil unions that were defined as "marriage minus conception rights", meaning all the rights and benefits and protections except for the right to conceive children with their own genes. This way the CU's wouldn't be stepping stones to marriage, they wouldn't be "marriage in all but name", and the way they are distinct would shine a light on what is special and unique about marriage and help restore marriage in people's minds as the rightful place for procreation.