Wednesday, August 4, 2010

The California Same-Sex Marriage Ruling

I may or may not have additional comments on this. There really seems to be no good reason to say anything until the decision has wended its inevitable way on appeal up to the Supreme Court and been decided there on the basis of which other justice Anthony Kennedy talks to last before casting his vote.

But I do find one component of Judge Walker's findings extraordinary. No...make that outrageous. No...make that intellectually and morally shameful.

Judge Walker's decision hinges on 80 "findings of fact" -- facts that range from the peremptory and pedestrian -- "Arnold Schwarzenegger is the governor of California" -- through the argumentative and questionable -- "Eliminating gender and race restrictions on marriage [notice the rhetorical trick?] has not deprived the institution of marriage of its vitality" -- to this remarkable assertion (Fact #77):

Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.

What is one to make of that statement as a philosophical assertion, or even as a simple declarative sentence? I suppose there are contexts in which the statement, understood conditionally rather than categorically, could in theory be true -- although the choice of interpreting it conditionally rather than categorically would be a demonstration of charity towards Judge Walker's command of the English language that I'm not sure he or it deserves. To demonstrate the point, let's take this analogical statement:

The belief that the Boston Red Sox are a superior baseball team harms New York Yankees fans.

If, after a Red Sox-Yankees game, a couple of fans were to get into a physical disagreement over the respective merits of their teams (something that I believe does in fact happen from time to time), and if the Red Sox fan were to succeed in his efforts to break the Yankees fan's nose, one could legitimately say that the Red Sox fan's "beliefs" about his team's superiority had in fact harmed a Yankees fan.

Is something along those lines what Judge Walker is talking about when he makes his "finding of fact"? Perhaps, but I doubt it. There admittedly are people who believe, on the authority of their religion, that homosexual relationships are sinful and who, compelled by that belief, beat up homosexuals. Such actions would be directly analogous to my baseball hypothetical. Those same actions would also be antithetical to the moral convictions of the vast majority of people who believe that homosexual relationships are sinful. 

Are deplorable incidents of that kind the way in which Judge Walker is asserting that religious beliefs about the sinfulness of homosexual relationships "harm gays and lesbians"? Not on your life.  Judge Walker believes -- rules, actually -- that a mere religious conviction about the sinfulness of "gay and lesbian relationships" -- apart from any overt action taken in response to that conviction -- harms homosexuals. The grounds for Judge Walker's private opinion on this point can be seen in the citations he makes to the transcript of oral argument in the case itself. He quotes testimony from several witnesses as to various Christian bodies' teachings on the immorality of homosexual activity. (He's fashionably "inclusive" in his scorn for Christian doctrine, Protestant and Catholic, on the point.)  But he singles out the teachings of the Catholic Church as one example of religious beliefs that, in and of themselves, "harm gays and lesbians." One of the supporting footnotes to "Fact" #77 is this:

PX2545 (Young Nov 13, 2009 Dep Tr 55:15-55:20, 56:21-57:7: There is a religious component to the bigotry and prejudice against gay and lesbian individuals); see also id at 61:18-22, 62:13-17 (Catholic Church views homosexuality as “sinful.”)

There you have it. It is a finding of "fact" by a Federal district court judge that my religion is a "component" of the prejudice that is practiced against gay and lesbian individuals. My belief as a Catholic that homosexual acts are sinful constitutes an example of the bigotry that has deprived homosexuals who want to marry each other of their constitutional rights. One hears a lot of loose talk these days about a culture war. But can you blame Catholics for listening sympathetically to such talk when their government officially declares that the Catholic Church teaches "bigotry and prejudice"?

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