The Lay Catholics' Moment on Marriage

by Fr. Roger J. Landry - May 30, 2008

On May 12, by a 4-3 margin, the California Supreme Court found a right to same-sex marriage in the California Constitution that all previous courts, back to the writing of the Constitution, had never seen. The decision itself and its 4-3 margin evoked comparisons to the November 2003 decision by the Massachusetts Supreme Judicial Court that invented a right to same-sex marriage in our Commonwealth.

Even outspoken supporters of same-sex marriage found the judicial activism by the California court appalling. The Washington Post, in a May 20 editorial, noted, to its chagrin, that the "flawed court decision could trigger serious political backlash because the outcome was produced not by the state's voters but by a 4-3 majority of judges." It said that California was not a situation in which ""judicial action was necessary to overcome entrenched injustice… The state's elected representatives passed sweeping legislation in 1999 that gave same-sex couples near legal parity with their opposite-sex counterparts; that landmark legislation has been amended over the years to expand the rights of gay couples. Before the court ruling, same-sex couples in California had virtually the same — not separate, but the same — legal rights as heterosexual couples, insofar as state law can grant that. The only thing they lacked was the right to be called 'married.' This, a slim majority of the California court ruled, was unacceptable… They then engaged in an unnecessary bout of judicial micromanagement by redefining marriage through a novel reading of the state constitution."

Liberal legal scholar Stuart Taylor, Jr., an avowed supporter of same-sex marriage, wrote in the May 24 National Journal, that the California decision was "judicial imperialism" at its worst — and he was just getting started. He said that the 121-page opinion was "dishonest" and "disingenuous" and that "Chief Justice Ronald George's majority opinion exuded impatience bordering on contempt for the government by the people that is the foundation of our democratic system." He said President Franklin Delano Roosevelt's indictment of the 1930s U.S. Supreme Court that sought to strike down New Deal legislation could easily be predicated of California's highest tribunal: "The Court ... has improperly set itself up as ... a superlegislature ... reading into the Constitution words and implications which are not there, and which were never intended to be there."

Legal scholars agree that the California decision went far beyond the Massachusetts judicial legislation in two notable ways. First, Chief Justice George's majority said that the internationally recognized human right to marry includes same-sex marriage. This is something that neither the federal government nor any other U.S. state — not even Massachusetts and New Jersey — nor the United Nations or the European Court of Human Rights has ever dared to claim. It is one thing to grant certain benefits; it is another matter altogether to say someone has a "human right" to them. The second dangerous novelty was that the California court said that sexual orientation should be treated like race under the California equal protection amendment. This would mean that all those who see marriage as the union of a husband and a wife would be equivalent to racists under California law. The Catholic faith, therefore, would now be considered a form of bigotry, and the Church and individual Catholics would now be subject to lawsuits under various circumstances for following the teachings of the faith on marriage.

What should the response of Catholics be to this oligarchic revolution on the part of the California court? Oakland Bishop Allen Vigneron, in a May 16 letter to the faithful of his diocese, sketched out the necessary elements. After crisply describing God's irrevocable plan for marriage — knowable by reason as well as by revelation — he showed how Catholics implicitly affirm this every time they profess their faith in "God, the creator of heaven and earth." Then, invoking the teaching of the Second Vatican Council, he called lay Catholics to action, in accordance with the vocation they received in baptism: "As the Second Vatican Council reminds us, God gave you the mission to configure the civil order to his design. In this way, through Christ and with the help of His Holy Spirit, you are making of this world a gift pleasing to the Father. This is the most fundamental act of your baptismal priesthood."

With regard to short term objectives, he wrote, "As faithful citizens Catholics are called to bring our laws regarding marriage into conformity with what we know about the nature of marriage." That means that Catholics have a moral duty to do all they can to give witness to their faith about marriage and seek to ensure that the truth about marriage, which is so fundamental to the good of society, is reflected in law. One clear application of this duty would be to work and vote in favor of a constitutional amendment to define marriage as the union of one man and one woman. Californians have already collected 1,122,000 signatures — far more than the 690,000 needed — to put such an amendment on the November ballot. Certification of the signatures should occur within the next couple of weeks.

In reminding Oakland Catholics of this duty, Bishop Vigneron was applying the clear teaching of the future Pope Benedict XVI, when, in 2003, he wrote in a Vatican document entitled Considerations Regarding Proposals to Give Legal Recognition to Unions between Homosexual Persons that "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." Cardinal Ratzinger in the same document stated that "the Catholic lawmaker has a moral duty to express his opposition clearly and publicly to vote against" laws in favor of same-sex marriage and "to vote in favor of a law so harmful to the common good is gravely immoral." Presumably if a Catholic politician has a moral duty to publicly vote against same-sex marriage laws, then Catholic voters have the same duty with regard to a constitutional amendment.

With regard to long-term goals, Bishop Vigneron noted that we are "living in a society where many accept a set of convictions that is ultimately detrimental to the integrity of human life, with negative consequences for one's happiness in this world and the next. Your mission then will be, as it always has been, to be a light and leaven for the new creation established in Christ. The resources of the Theology of the Body, worked out by the late Holy Father, John Paul II, will be an especially helpful resource for this task."

He finished by clarifying the role of bishops and priests in response to the crisis. It is to "lead you in response to this situation" by giving clear and unified moral guidance. It is the lay people who are called to respond to the gift of the Holy Spirit to be on the front lines of this battle, with the bishops and priests supporting them — not the other way around.

Here in the Diocese of Fall River, we are called to help them with prayer, our experience and our support. If Californians — Catholics and non-Catholics — are able to overturn this judicial tyranny by means of a constitutional amendment this November, it might create added momentum here in Massachusetts for us to begin once again to do the same.

Now is the moment for the sleeping giant of the Catholic laity — numerically potent both in California and here — to step up, with the grace and power of the Holy Spirit, and be the salt, light and leaven God wants with regard to the gift of marriage God has given us.

Father Roger J. Landry is pastor of St. Anthony of Padua in New Bedford, MA and Executive Editor of The Anchor, the weekly newspaper of the Diocese of Fall River.