Supreme Court on marriage; Synod on family

Maybe it’s the vortex of the perfect storm.

God knows, marriage and family, and therefore society, have been in crisis over these past years and that cultural breakdown has wrought great damage to individuals and societies. What are the factors behind it all? How do we get marriage right and serve the fundamental institution of the family on which a healthy and thriving culture is based? Competing views of both marriage and family have been going at it for decades, and that battle (I hate the pugilistic terminology these days, but it’s more a battle than a struggle) has escalated in the past few years faster and more furiously than before. The stakes are so high. For civilization.

So we arrive at a confluence of events this week.

Pope Francis convened an Extraordinary Synod on the Family at the Vatican over the weekend, an unusual event in the life of the Catholic Church. It didn’t as much  launch as continue a multi-year concentration of energies and focus on problems and issues in modern culture that required something far bigger and more momentous than a symposium, or a written document, a declaration of sorts. Here’s why.

The social and spiritual crisis, so evident in today’s world, is becoming a pastoral challenge in the Church’s evangelizing mission concerning the family, the vital building-block of society and the ecclesial community. Never before has proclaiming the Gospel on the Family in this context been more urgent and necessary.

(emphasis added)

Concerns which were unheard of until a few years ago have arisen today as a result of different situations, from the widespread practice of cohabitation, which does not lead to marriage, and sometimes even excludes the idea of it, to same-sex unions between persons, who are, not infrequently, permitted to adopt children. The many new situations requiring the Church’s attention and pastoral care include: mixed or inter-religious marriages; the single-parent family; polygamy; marriages with the consequent problem of a dowry, sometimes understood as the purchase price of the woman; the caste system; a culture of non-commitment and a presumption that the marriage bond can be temporary; forms of feminism hostile to the Church; migration and the reformulation of the very concept of the family; relativist pluralism in the conception of marriage; the influence of the media on popular culture in its understanding of marriage and family life; underlying trends of thought in legislative proposals which devalue the idea of permanence and faithfulness in the marriage covenant; an increase in the practice of surrogate motherhood (wombs for hire); and new interpretations of what is considered a human right.

Which precisely gets to the marriage redefinition movement that has very successfully built momentum with high profile support and endorsements from celebrities in Hollywood, media, sports, politics, academia, the arts, and the culture at large. The movement to redefine marriage in law has claimed marriage as a human right, a new rendering of an ancient institution, recognized by government up to the recent past as one the State has an interest in preserving and upholding as a union of one man and one woman.

So fast forward past years of litigation in the courts, to the decision by the High Court on Monday, as the Supreme Court opened its new session. It shocked just about everyone. Its effect is being celebrated by proponents as so sweeping, it “could signal the inevitability of the right of same-sex marriage nationwide”, as the New York Times reported it. The Christian Science Monitor called it a ‘Supreme Mystery.’

Why didn’t the US Supreme Court agree to hear any of the seven petitions urging the justices to settle the contentious debate over same-sex marriage?

Speculation abounds.

The justices offered no hint of an answer in Monday’s orders list. The document unceremoniously announced that petitions from each of the cases from five different states had been denied…

It is even more puzzling because the Supreme Court had several times earlier this year issued stays to block orders by lower courts that sought to immediately allow same-sex couples to marry in states where a ban was struck down. Why would the justices seek to preserve the status quo for several months only to apparently change their mind now?

Sometimes justices who believe the court should decide a particular case will file a dissent and explain to the public why the court should take up the case. Nothing like that was presented on Monday.

And therein lies a clue as to what happened in this decision. It’s just one idea, but an insightful one, by Ed Whelan.

For what it’s worth, here’s my theory explaining yesterday’s order denying review in the SSM cases:

One or more of the three conservative justices who might most be expected to object to denial—that is, Scalia, Thomas, or Alito—instead concluded that denial was the best course. Why? Because that justice (or those justices) became convinced that Kennedy was beyond persuasion and that he was a certain fifth vote to invent a constitutional right to same-sex marriage. On that understanding, the least-worst option would be to deny review and thus (for the time being, at least) prevent the Supreme Court from placing its formal imprimatur on the developments below.

(Meaning those that came out of the lower courts, which they by necessity would have had to review and decide in the High Court.)

I think that this is the only theory that adequately explains why none of these three justices publicly registered a dissent. In particular, I don’t think that a competing theory—that the Chief Justice voted to deny but that Scalia, Thomas, and Alito all voted to grant—can explain the absence of a public dissent.

I don’t think that there’s any difficulty explaining why the four liberals would go along with the denial. Even if they’re equally confident of Kennedy, it’s much easier from their perspective to let the lower courts do the spadework and to intervene only if and when a court rules against a constitutional SSM right.

It makes sense. Whelan seems to offer the only – or best – plausible explanation for this stunning decision. There will be consequences, as we know already.

Which gets back to the Synod at the Vatican, dedicated to healing the world of hurt over ruptures in societies and civilization in this historic turning point. Vatican expert George Weigel (another EPPC scholar, like Whelan) posted a heartfelt request for a Synod of Affirmation. Weigel gets to the point, a couple of them in fact.

The collapse of marriage culture throughout the world is indisputable. More and more marriages end in divorce, even as increasing numbers of couples simply ignore marriage, cohabit, and procreate. The effort to redefine “marriage” as what we know it isn’t, and to enforce that redefinition by coercive state power, is well-advanced in the West. The contraceptive mentality has seriously damaged the marriage culture, as have well-intentioned but ultimately flawed efforts to make divorce easier. The sexual free-fire zone of the West is a place where young people find it very hard to commit to a lifelong relationship that inevitably involves sacrificing one’s “autonomy.” And just as the Christian understanding of marriage is beginning to gain traction in Africa, where it is experienced as a liberating dimension of the Gospel, European theologians from dying local churches are trying to empty marriage of its covenantal character, reducing it to another form of contract.

Rome, we have a problem.

Pope Francis understands the crisis of marriage culture in its multiple dimensions, just as he understands that the family, which begins in marriage, is a troubled institution in the post-modern world; that’s why he’s summoned two Synods on the topic of the family. And that’s why the Synod, fully aware of the gravity of the situation, should begin, continue, and end on a positive note, offering the world a pearl of great price: the Christian understanding and experience of marriage.

The Synod discussion, in other words, should take the crisis of marriage and the family as a given and then lift up Christian marriages, lived faithfully and fruitfully, as the answer to that crisis. The Synod should begin with what is good and true and beautiful about Christian marriage and Christian family life, and show, by living examples, how that truth, goodness, and beauty respond to the deepest longings of the human heart for solidarity, fidelity, and fruitful love.

It’s quite obvious that the Church faces real pastoral challenges in dealing with broken marriages and their results. But to begin the discussion of marriage and the family in the twenty-first century there is to begin at the wrong end of things. For it is only within the truth-about-marriage, which was given to the Church by the Lord himself, that compassionate and truthful solutions to those pastoral problems can be found.

This is only the middle of week one of two weeks of this Extraordinary Synod on marriage and the family. And just two days after the Supreme Court decision not to decide the marriage questions. Stay tuned, these are interesting times.

Have we lost our ability to disagree?

We have devolved.

That’s not news, except to those people who haven’t been paying attention. How long ago did we actually exercise our right to disagree with facility and reason, in this representative republic, this exercise in democracy? And especially, with dignity?

Voltaire allegedly said “I disapprove of what you say, but I will defend to the death your right to say it.” Though he did not, his biographer did. But it’s a noble sentiment.

So about the concept and reality of dignity, let’s look at what’s happened lately in the cultural meltdown over social moral issues, or anything that even refers to the word ‘moral.’ Fires ignite. Flamethrowers start lighting their torches. That’s bad enough. But one of the disturbing things among many, is that we’ve lost the meaning of words in the first place, so what’s moral isn’t sometimes what’s legal, and vice versa. Which leads inevitably to the throwdown challenge, who decides.

As if there’s no reference point. As if it’s a matter of consensus maybe? Because that’s what drives our culture.

Just as the Little Sisters of the Poor lawsuit put the spotlight on government encroachment on religious liberty, the meltdown that put white hot light on the decline of our civilization is the whole Brendan Eich/Mozilla affair over the issue of gay marriage. This need not have happened this way.

So, what happened?

A rundown:

First Things ran this, under ‘Anonymous’, such is the atmosphere of fear of retribution these days.

Silicon Valley is in an uproar. Angry blog posts have been written, resignations tendered, and boycotts organized, with no sign that the furor is likely to abate. Seeing such ruckus, a casual observer might assume that some fallout had finally resulted from the shocking revelation that several of the largest names in the technology industry—including Google, Apple, Intel, and others—have secretly colluded to drive down wages among software engineers and executives for the better part of the past decade. In fact it concerns nothing of the sort, but rather the appointment of a man named Brendan Eich to the role of CEO of the Mozilla Corporation, makers of the popular Firefox web browser.

The one thing all sides can agree on is that Eich, on paper, is very well suited to the job. His most notable technical achievement is the invention of the Javascript programming language, and while some of us might sniff at the poor design decisions which made that language notoriously unpleasant to work with, it is incontestable that it forms the underpinnings of much of the modern web. Indeed, a great deal of the complexity in a modern web browser is devoted to interpreting JavaScript as quickly and correctly as possible, and a staggering amount of work has gone into finding ever more baroque methods of optimizing its execution. Eich himself is quite familiar with all of this labor, having served in senior technical roles at Mozilla since he co-founded it. In fact, he has worked there almost continuously for the past sixteen years—an aeon in Silicon Valley—and is widely-known and liked within the company, the non-profit foundation that controls it, and the broader community of programmers around it.

Why, then, the ruckus? Amazingly enough, it is entirely due to the fact that Eich made a $1,000 donation to the campaign urging a ‘yes’ vote on California’s Proposition 8. When this fact first came to light, Eich, who was then CTO of Mozilla, published a post on his personal blog stating that his donation was not motivated by any sort of animosity towards gays or lesbians, and challenging those who did not believe this to cite any “incident where I displayed hatred, or ever treated someone less than respectfully because of group affinity or individual identity.”

That is honesty. He’s saying, basically, ‘everyone has an opinion, a belief, and this is mine. By holding this belief I have in no way dishonored any person, or treated them disrespectfully.’

Then he reached out further.

Upon being named CEO last Wednesday, Eich immediately put up another post which among other things pledged in direct terms first that he would ensure Mozilla continued offering health benefits to the same-sex partners of its employees; second that he would allocate additional resources to a project that aims to bring more LGBTQ individuals into the technology world and Mozilla in particular; and third that he would maintain and strengthen Mozilla’s policies against discrimination on the basis of sexual orientation and gender identity. It’s worth emphasizing that Eich made this statement prior to the storm of outrage which has since erupted, and that with these policies and others Mozilla easily ranks among the most gay-friendly work environments in the United States.

Emphasis added there, because that’s a remarkable effort to show goodwill. It wasn’t made in response to outrage, but in advance of it. How many work environments have that policy in the US? Or anywhere?

None of this, however, would do him any good. Since then, the Internet has exploded with statements expressing horror, sadness, and anger at Eich’s appointment. Two board members of the Mozilla foundation have resigned, ostensibly because they felt the search committee was unduly weighted with insiders, and dozens of more junior employees and volunteers have left as well. Several major corporations have released official statements encouraging Eich’s resignation, though it is difficult to tell whether they are motivated by genuine moral outrage or by the potential for cheap publicity. Of course the tech media, preternaturally hungry for pageclicks, cannot get enough of the story.

One of the most widely-shared and lauded of the countless statements issued in response to the appointment was written by Owen Thomas, managing editor of Valleywag, a self-described “tech gossip rag.” This is such a remarkable document that I can’t help quoting from it extensively:

Go there and read it if you will. This post is long enough already.

Andrew Sullivan responded to the torching of Brendan Eich with his own horror.

The guy who had the gall to express his First Amendment rights and favor Prop 8 in California by donating $1,000 has just been scalped by some gay activists. After an OKCupid decision to boycott Mozilla, the recently appointed Brendan Eich just resigned under pressure:

‘In a post at Mozilla’s official blog, executive chairwoman Mitchell Baker confirmed the news with an unequivocal apology on the company’s behalf. “Mozilla prides itself on being held to a different standard and, this past week, we didn’t live up to it,” Baker wrote. “We didn’t act like you’d expect Mozilla to act. We didn’t move fast enough to engage with people once the controversy started. We’re sorry. We must do better.”

‘The action comes days after dating site OKCupid became the most vocal opponent of Eich’s hiring. Mozilla offered repeated statements about LGBT inclusivity within the company over the past two weeks, but those never came with a specific response from Eich about his thousands of dollars of donations in support of Proposition 8, a California ballot measure that sought to ban gay marriage in the state.’

End of statement. To which Sullivan responds:

Will he now be forced to walk through the streets in shame? Why not the stocks? The whole episode disgusts me – as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today – hounding our opponents with a fanaticism more like the religious right than anyone else – then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us.

Thank you, Andrew Sullivan. That is intellectual honesty. You made my point. Those who rightly expressed outrage at being bullied are now bullying others. Simply because they can. Which makes them just like their former opponents, certainly no better.

Joel Kotkin says it’s The spread of ‘debate is over’ syndrome.

In many cases, I might agree with some leftist views, say, on gay marriage or the critical nature of income inequality, but liberals should find these intolerant tendencies terrifying and dangerous in a democracy dependent on the free interchange of ideas.

There’s the key to understanding or at least beginning to see what’s going on here. There is no free interchange of ideas. Some ideas are not only vilified, but crushed to the point where those who hold them must be professionally ruined or destroyed.

This shift has been building for decades and follows the increasingly uniform capture of key institutions – universities, the mass media and the bureaucracy – by people holding a set of “acceptable” viewpoints. Ironically, the shift toward a uniform worldview started in the 1960s, in part as a reaction to the excesses of Sen. Joseph McCarthy and the oppressive conformity of the 1950s.

But what started as liberation and openness has now engendered an ever-more powerful clerisy – an educated class – that seeks to impose particular viewpoints while marginalizing and, in the most-extreme cases, criminalizing, divergent views.

Harsh words maybe, but well stated certainly.

Mollie Hemingway wrote this exceptional, challenging commentary and analysis.

Libertarian Nick Gillespie said he was “ambivalent” about Eich’s removal but that Eich’s resignation simply “shows how businesses respond to market signals.” And even conservatives weren’t rallying behind Eich on the grounds that marriage is an institution designed around sexual complementarity so much as by saying that even if he’s wrong, conscience should be protected.

At the end of the day, they’re all wrong. Or at least not even close to understanding the problem with Eich’s firing. Political differences with CEOs, even deep political differences, are something adults handle all the time. Most of us know that what happened held much more significance than anodyne market forces having their way. And Eich shouldn’t be protected on the grounds that one has the right to be wrong. See, Eich wasn’t hounded out of corporate life because he was wrong. He was hounded out of corporate life because he was right. His message strikes at the root of a popular but deeply flawed ideology that can not tolerate dissent.

And what we have in Eich is the powerful story of a dissident — one that forces those of us who are still capable of it to pause and think deeply on changing marriage laws and a free society.

Now Mollie gets into territory that rivets my attention, the work and writings of Vaclav Havel…

…the Czech playwright, poet, dissident and eventual president. Havel, who died in 2011, was a great man of freedom, if somewhat idiosyncratic in his political views. He was a fierce anti-communist who was also wary of consumerism, a long-time supporter of the Green Party who favored state action against global warming, and a skeptic of ideology who supported civil unions for same-sex couples.

“The Power of the Powerless,” written under a communist regime in 1978, is his landmark essay about dissent. It’s a wonderful read, no matter your political persuasion. It asks everyone to look at how they contribute to totalitarian systems, with no exceptions. It specifically says its message is “a kind of warning to the West,” revealing our own latent tendencies to set aside our moral integrity. Reading it again after the Eich dismissal, I couldn’t help but think of how it applies to our current situation in the States.

“The post-totalitarian system demands conformity, uniformity, and discipline,” Havel wrote, using the term he preferred over “dictatorship” for the complex system of social control experienced in Czechoslovakia. We also have a system that is demanding conformity, uniformity and discipline — it’s not just about marriage law, to be honest. It’s really about something much bigger — crushing the belief that the sexes are distinct in deep and meaningful ways that contribute to human flourishing. Obviously marriage law plays a role here — recent court rulings have asserted that the sexes are interchangeable when it comes to marriage. That’s only possible if they’re not distinct in deep and meaningful ways. But the push to change marriage laws is just one part of a larger project to change our understanding of sexual distinctions.

This commentary is just about the best analysis of the critical issues at hand out there right now. It should be engaged. The cultural battles have devolved into incoherence.

OK, let’s step back. What does any of this have to do with views on marriage? Well, I know that we’ve had years of criminally one-sided media coverage, cowardly political leaders and elite cultural views that have conveyed to you that the only reason anyone might think sexual complementarity is key to marriage is bigotry. You may have even internalized this message. You may need to hold on to this belief for reasons of tribalism or pride. But in the spirit of Jon Stewart’s poster shown up at the top, which reads, “I may disagree with you but I’m pretty sure you’re not Hitler,” let’s go on an open-minded journey where we seek to understand the views of others without characterizing them as Hitler-like. It’s difficult in these times, but we can do it.

She leads the reader through this dialectic journey.

So what is the difference between marriage and other relationships? There’s no question marriage has been treated dramatically differently than other relationships by governments and society. Why? Is it that it features a more vibrant or emotional connection? Or is there some feature that is a difference in kind – that marks it out as something that ought to be socially structured? We usually don’t want government in our other relationships, right? So why is marriage singled out throughout all time and human history as a different type of recognized relationship?

Well, read her article for the whole critical thinking exercise.

This is what marriage law was about. Not two friends building a house together. Or two people doing other sexual activities together. It was about the sexual union of men and women and a refusal to lie about what that union and that union alone produces: the propagation of humanity. This is the only way to make sense of marriage laws throughout all time and human history. Believing in this truth is not something that is wrong, and should be a firing offense. It’s not something that’s wrong, but should be protected speech. It’s actually something that’s right. It’s right regardless of how many people say otherwise. If you doubt the truth of this reality, consider your own existence, which we know is due to one man and one woman getting together. Consider the significance of what this means for all of humanity, that we all share this.

Now if one wants to change marriage laws to reflect something else, that’s obviously something that one can aim to do. We’ve seen the rapid, frequently unthinking embrace of that change in recent years, described one year ago in the humanist and libertarian magazine Spiked as “a case study in conformism” that should terrify “anyone who values diversity of thought and tolerance of dissent.”

Hang in there, even if you’re emotionally charged at this point. Because this appeals to reason and not emotion.

What is marriage? That’s a good question to answer, particularly if you want to radically alter the one limiting factor that is present throughout all history. Once we get an answer for what this new marriage definition is, perhaps our media and other elites could spend some time thinking about the consequences of that change. Does it in any way affect the right of children to be raised by their own mother and father? Have we forgotten why that’s an important norm? Either way, does it change the likelihood that children will be raised by their own mother and father? Does it by definition make that an impossibility for whatever children are raised by same-sex couples? Do we no longer believe that children should be raised by their own mother and father? Did we forget to think about children in this debate, pretending that it’s only about adults? In any case, is this something that doesn’t matter if males and females are interchangeable? Is it really true that there are no significant differences between mothers and fathers? Really? Are we sure we need to accept that lie? Are we sure we want to?

We are, she posits, slipping under ‘mob rule.’ But still at a warning point.

There’s much to be thankful for in aftermath of the madness of the Eich termination. For one thing, many people have rightly figured out that what happened there is terrifying. It’s not just natural marriage advocates but even some of same-sex marriage supporters most vocal advocates.

Such as the aforementioned and quoted Andrew Sullivan.

Far more than the political folks on either side, though, is the importance of what happened to the apolitical. In one sense, the most frightening aspect of the Eich termination was the message it sent to people throughout the country: Shut up or you will lose your livelihood. But in another sense, this dissident moment may spark something previously thought impossible.

Havel says that party politics and the law are the weakest grounds on which to fight against group think. Instead, he says that the real place for dissidents to fight for freedom is in the space where the complex demands of the system affect the ability to live life in a bearable way — to not be fired for one’s views, for instance. “People who live in the post-totalitarian system know only too well that the question of whether one or several political parties are in power, and how these parties define and label themselves, is of far less importance than the question of whether or not it is possible to live like a human being,” Havel said.

Exactly. Authentically.

It’s in this sense that Eich’s most important political work was not making a paltry $1,000 donation in defense of natural marriage laws. It was in refusing to recant.

Consider first the response of one of the activist’s calling for Eich’s head. After he resigned, activist Michael Catlin wrote that he never thought his campaign against Eich would go “this far” and that he wanted “him to just apologize.” So he was “sad” that Eich didn’t say the magic words that would have allowed him to keep his job. Yeah, he really said that.

And then think about how horrified people were that Eich lost his job for his views that men and women are different in important ways. Regardless of our previous views on marriage, we saw in Eich a dissident who forced us to think about totalitarianism and our role in making society unfree. Did we mindlessly put up red equal signs when we hadn’t even thought about what marriage is? Did we rush to fit in by telling others we supported same-sex marriage? Did we even go so far as to characterize as “bigots” or as “Hitlers” those who held views about the importance of natural marriage?

We must be able to engage these ideas, consider these questions, debate them and disagree, to hold onto and preserve our dignity and civilized society.

Whether Eich and other dissidents will crack our thick, hardened crust remains to be seen. Perhaps there will need to be dozens, hundreds, thousands more dissidents losing their livelihoods, facing court cases, and dealing with social media rage mobs. But all of a sudden, the crust doesn’t seem nearly as impenetrable as it did last week.