Robert R. Reilly
Robert R. Reilly, writing for Crisis Magazine (“The Logic of the Court and the Prospect of Homosexual Marriage”, 3/19/13), finds grievous fault with a succession of Supreme Court decisions made over the past 40 years—decisions that have separated sex from procreation in civil law and prepared the way for the ante-penultimate horror that is same-sex marriage. (Polygamy and bestiality follow.) His article is timely, as the SCOTUS will next week begin hearing two major cases testing the constitutionality of laws prohibiting such marriages. (U.S. v. Windsor, testing the 1996 Defense of Marriage Act, and Hollingsworth v. Perry, testing California’s Proposition 8)
There’s an undeniable tendency among conservative Catholics to rely heavily on the authority of long-dead white Christian males when arguing everything from sex to statecraft. The more distant in time, the more the authority is respected. In their world, Thomas Aquinas’s “Summa” has never been surpassed, and should rightly form the basis of both legislation and jurisprudence in modern pluralistic democracies. Dean Hansen has put it nicely:
It’s part of the tight, intellectual box that freezes inquiry and stifles forward momentum. Imagine where we’d be today if we rejected Einstein because he contradicted Copernicus, or rejected any medical advice that contradicted Galen of ancient Rome.
Paradoxically, I would encourage them in this tendency, because I have observed that it leaves them ill-equipped to argue their cases in courts of law, where the opinions of expert witnesses (who can be cross-examined) are greatly favored over quotations from dead savants.
Reilly quotes 18th-century English legal scholar William Blackstone to remind us that proscriptions against sodomy have a noble pedigree.
Sodomy? Reilly has gotten it wrong right off the bat, and doubly so. First, lesbians don’t generally practice sodomy, many heterosexuals do, and many homosexual men do not. Second, and more important, same-sex marriage (the subject of his article) is not about sodomy or even necessarily about sex. It’s about love, companionship, and commitment.
If attorneys defending DOMA and Prop 8 enter the Supreme Court expecting to talk about the evils of sodomy, they will have a rude awakening: the Supreme Court decision in Lawrence v. Texas (2003) assures our freedom from government intrusion into our bedrooms, and in 1987, the Court declared that sex is not a necessary component of marriage (Turner v. Safely: incarcerated prisoners may marry, even if they have no right to conjugal visits.)
Reilly squanders hundreds of precious keystrokes telling us how abjectly wrong Lawrence v. Texas was: It “cast aside millennia of moral teaching,” it demonstrated “the intellectual poverty of the legal profession,” and it showed “no grasp of the relationship between morality and the law.”
Now, if we can just persuade the attorneys defending DOMA and Prop 8 to lecture the Supreme Court on the law and “explain” to them why legal precedents are in error, we’ll have a clear path to victory.
Reilly is very big on tradition, as long as it pre-dates the sexual revolution of the sixties and seventies. Roman law, the English Reformation, 18th-century legal philosophy, the Bible—all are good. But don’t mention modern science, medicine, sociological and psychological research, or secular law and jurisprudence. They are only passing fashions parading self-importantly against the millennial backdrop of Judeo-Christian history.
For many secular progressives, the word “tradition” is value-neutral but highly suspect when it is used to justify practices that are patently unjust. People who have spent their lives steeped in theology may have a hard time understanding this. To them, a practice grounded in millennia of tradition is self-evidently moral, because it has stood the test of time. Take genocide, for example … or slavery.
Like many other contributors to Crisis Magazine, Reilly has a hard time “hearing” the word “tradition” in the way that Supreme Court justices and policy-makers do. Ironically, he is using it to assert an authority superior to theirs, while they are well-aware that it is used this way. And here, having already accused the court of casting aside millennia of moral teaching, he gives a slight, momentary nod to Justice Kennedy’s reasoning in the Lawrence v. Texas decision:
The Court stated that, “the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” That may be well and good, but at least such a tradition should invite an examination of whether the “practice” in question is, in fact, immoral. [emphasis mine]
Sodomy sculpture from Lincoln Cathedral
Reilly himself clearly thinks the practice in question is “immoral,” because, as he said earlier, it has long been regarded as “a gravely disordered act” and has been proscribed throughout history. So Reilly’s own reasoning would have only led the Court in circles.
Reilly is right about one thing. “The Court,” he writes, “has already done much to prepare the ground work for the legalization of homosexual marriage.” Though he condemns the relevant rulings variously as “extraordinarily misconceived,” (Lawrence v. Texas) and “an act of barbarity” (Roe v. Wade), he at least does provide a useful overview of them, which is then supplemented by one of the commenters, Paul McGuire. I will list these in my next post.
Reilly makes no secret of his low opinion of the Court’s rulings on contraception, abortion, and intimate sexual practices. These rulings are indeed logically compelling, he says, but only if one accepts a premise that is “insane,” i.e., that marriage and sex can be separated from procreation.
Brethern and sistern, let us fervently pray that attorneys arguing to uphold DOMA and Proposition 8 next week will adopt arguments similar to the ones Robert R. Reilly has so eloquently presented. Amen.