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It’s not the rulings on same-sex marriage, it’s the writing

What’s left to complain about when you realize you can’t complain about the legal reasoning of decisions allowing same-sex marriage? The writing in the rulings by district judges who’ve struck down existing bans.

That’s the tack taken by Branden McGinley in First Things, who seems to be less upset by the substance of the rulings than the style. It’s a thin reed on which to hang an appeal to those like-mindedly distressed by the domino-like fall of state laws restricting marriage, which may explain the flailing common to last-gasp entreaties. When all else fails, suggest there are too many notes.

Judge Michael J. McShane [Oregon] has earned praise for his gratuitous five-paragraph closing, during which he tries frantically to climb out of the bourgeoisie and back to the vanguard. He describes the linear progress of the LGBT movement, and gently pats same-sex marriage opponents on the head, saying that “it is not surprising” that we want to place our “religious or moral objections” in the law. He wraps up the opinion with all the faux profundity of a self-indulgent Advanced Placement essay… It sounds more like a séance than a call to action. …

Not to be outdone, though, Judge John E. Jones [Pennsylvania] reached into his (apparently quite shallow) bag of clichés and emerged with this closing: “We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.” One would imagine that a movement with such apparent moral force would be blessed with more creative scribes.

Would one, now? One would thus imagine that if the writing in the rulings did rise to meet McGinley’s subjective criteria for creativity (unspecified, but no doubt rigorous), then he would gladly confer his approval in a post just as carefully composed, with excerpt and metaphor just as artfully arrayed in support of his opinion.

But then, he wouldn’t have quite the same opportunity to impute unseemly motive. What he damns as “saccharine” writing isn’t just a surface flaw marring an otherwise reasoned conclusion, but the product of the same-sex marriage movement “finding itself in an awkward position,” caught, he says, between the excitement of being in the vanguard and acceptance by the culture at large. There is now

the opportunity to earn progressive plaudits with no risk to one’s social standing. More than that, this sets up a system of incentives that rewards the most emotionally striking rhetoric, whether in favor of same-sex marriage or against its opponents….

The decisions elevate the cultural and legal conventionality of same-sex marriage, but they are also sprinkled with painful purple prose that seems designed to earn media acclaim and to recapture the fading moral urgency of the cause. …

Frustration over the style of rulings can be understandable—as, say, when a justice employs a construction like “the way to stop discriminating on the basis of race is stop discriminating on the basis of race.” Simplistically expressed and pithily dismissive, it exhibits little of the eloquence we seek in court opinions, while, one would imagine, earning its share of conservative plaudits. But at least critics of this statement use it to make their argument about the legal reasoning overall; McGinley, on other hand, in absence of tenable, substantive critiques, has nothing left to fall back on but stylistic ones. When you’ve run out of ways to argue against the message, you may as well train your dwindling store of fire on the messengers, who—with judges McShane and Jones the latest—are continuing to raise the number of states in which same-sex marriage is now or will soon be legal. 

About the Author

Dominic Preziosi is Commonweal’s digital editor.



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When you’ve run out of ways to argue against the message...

Actually, when you realize that no amount of logical, intelligent argumentation matters because your opponents are not or will not listen because they are enthralled with themselves.

Everyone, regardless of your position on gay marriage, should be opposed to these decisions because they make a mockery of We the People (Constitution) and Government of the people, by the people and for the people (Gettysburg Address).  Laws are being enacted not by the people, or their elected representatives, but by individuals.  It is the antithesis of rule of law. 

I don't demand pith, but I do value clarity and persuasive arguments on important matters.  

That First Things piece doesn't pass the nitpickety sniff test.


Geez - you guys have high standards.  Face it - First Things begins with an ideology and then moves on.


There is nothing unconstitutional about finding that laws are unconstitutional. Our Constitution enshrines certain principles, such as freedom of speech, freedom of religion, equal protection, due process, etc., and judges are required to make sure that we live up to these principles even if it would be popular to violate them. If we collectively decide that a principle is not one we hold anymore, we are free to amend our Constitution. The antithesis of rule of law would be to ignore the Constitution just because a majority of the electorate or of the legislature would prefer to do so.

Bruce, it would be nice if speeches DID have the force of law, because that would give the gifted speechmaker President Obama a way around those Congressional Republicans who are determined to thwart him at every turn.  But the Gettysburg Address is merely a speech, not a law.  

You can always depend on the Commonweal blog to sneer at people who aren't trendy enough to disagree with the Church on certain issues. 

At some point, the increasing number of State and Federal Court decisons afirming gay marriage will make it to the U.S. Supreme Court where this issue will be settled once and for all (or at least until the U.S. Constitution is amended or a subsequent U.S. Supreme Court rules otherwise).

Groups and individulals representing both sides of this issue believe they are right and speak the truth. What we need to distinguish is the difference between civil law and moral law. A civil law does not mean that the foundations of moral law will crumble, or that the sanctity and flourishing of heterosexual marriages in this country will be destroyed by same sex civil marriages. Nor does it mean that same sex couples canot flourish in the same way that heterosexual couples do.

To date, no prominent and widely regarded scientific organization, representing thought leaders, have concluded that a same sex orientation is an "objectively disordered condition of a universal heterosexual orientation" that the RCC asserts is the truth. Nor is there any widely accepted scientifiic evidence that people with a same sex orientation are less patient, faithful, generous, incapable of being good Samaritans, more prone to anger, rivalry and resentful or untruthworthy. Nor is there widely accepted scientific studies that have concluded that the psycho-social upbringing of children of same sex couples is any different from the upbringing of heterosexal couples. Nor are same sex couples incapable of loving God and neighbor as heterosexual couples, other than obedience to the every teaching of the magisterium (which the majority of Catholics do not do). 



The First Things piece is annoying with its constant self satisfied scoffing, but they do have a point. The judges' pompous "look at me, I'm making history" rhetoric is obnoxious.

Legal rights are all very well but one would like to here more about the positive goods of gay marriage and how it contributes both to the human flourishing of the partners and to the common good.

 In terms of Natural Law, it is time to drop a servile biologism and appraise rather homosexuality and homosexual expression according to values such as love, fidelity, pleasure, beauty, intimacy, tenderness, freedom of conscience, mutual support, creativity, enhancement of life, enrichment of community, etc.

Those who fret about the authority of the Magisterium should consider the possibility that we are living through a development in ethical thinking comparable to other such developments in the past (on usury, torture, slavery, capital punishment, the value of sex in marriage, etc.).

The arguments propelling such a development are simple, rational, and persuasive. Sex plays a cementing and stablilizing role within long-lasting gay relationships or, now, gay marriages. Even if one continues to class gay sex along with contraceptive sex as intrinsice inhonestum, there is no reason to deny the validity of the relationship for that reason alone. This development would proceed largely on the level of pastoral accommodation.

But it seems that a more "radical" move is looming as the Church comes to admit that contraceptive sex is NOT inherently wrong, which logically opens the way to saying the same about homosexual acts and to celebrating their positive value.

Yes, that means that the church is learning from the world and catching up with the world. But that happened before in regard to the other moral developments mentioned above.

Moral development here has been urged by leaders in other Christian churches (for instance in Rowan Williams' famous essay on "the body's grace" or by Bishop Jefferts-Schori who defines homosexuality as a vocation to love) and adopted by some churches fully.

There is no reason for us to remain forever locked in a surly dogmatic bind.

The positive good of marriage equality, from the Newsweek article by Republican lawyer Ted Olson, "The Conservative Case for Gat Marriage"  ... ...

"The simple fact is that there is no good reason why we should deny marriage to same-sex partners. On the other hand, there are many reasons why we should formally recognize these relationships and embrace the rights of gays and lesbians to marry and become full and equal members of our society.

No matter what you think of homosexuality, it is a fact that gays and lesbians are members of our families, clubs, and workplaces. They are our doctors, our teachers, our soldiers (whether we admit it or not), and our friends. They yearn for acceptance, stable relationships, and success in their lives, just like the rest of us.

Conservatives and liberals alike need to come together on principles that surely unite us. Certainly, we can agree on the value of strong families, lasting domestic relationships, and communities populated by persons with recognized and sanctioned bonds to one another. Confining some of our neighbors and friends who share these same values to an outlaw or second-class status undermines their sense of belonging and weakens their ties with the rest of us and what should be our common aspirations. Even those whose religious convictions preclude endorsement of what they may perceive as an unacceptable "lifestyle" should recognize that disapproval should not warrant stigmatization and unequal treatment ......."

From The Incurious Man's Guide to Legal Terms:

  • when a court upholds a law I like, that's judicial restraint;
  • when a court upholds a law I dislike, that's black-robed toadies with lifetime appointments;
  • when a court overturns a law I like, that's tyrannical overreach by unelected elitists;
  • when a court overturns a law I dislike, that's checks and balances.

@ John Prior:

"From The Incurious Man's Guide to Legal Terms"


If one were to replace "a court" with "the church" and "a law" with " a teaching" and "judicial" with "ecclesiastical" and "elitists" with "bojos" and "checks and balances" with "providence and discernment," the list could easily pass as The Incurious Man's Guide to Catholic Stuff.


Isn't this whole argument about the purpose of marriage?  If one takes the position that the sole, or at least primary, purpose of marriage is for procreation, then gay marriage really makes no sense.  At the end of the day, if you cut through all the clutter about natural law and similar arguments, that is the Church's position in essense.  But if you look at marriage as bringing a wide range of benefits, love, support, pleasure,  intimacy, and the like, where procreation is but one of a set of positive outcomes, then it really doesn't make sense to oppose gay marriage.  District Court decisions are mostly about following the law as written or as decided by other higher courts. They are mostly applying the law to a set of facts. As such, decisions are rarely as pithy as those of the Supreme Court or even the Court of Appeals where broader concerns are argued.

Mike Barberi,

A lot of people seem to give no consideration to what it means to live in a society where we disagree about what is good. The Golden Rule should be our guide, but many seem to rephrase it as "I would like for people to do what I think they should to do, so everyone should do what I think they should do."

There is nothing unconstitutional about finding that laws are unconstitutional.


This is a non-sequitor.  For example, Prop 8 in California was a constitutional ammendment passed by a majority of the people.  It is part of the state Constitution so by definition it cannot be unconstitutional.  Yet, a judge ruled it as such.  Essentially, one man took away the rule of law from the people and replaced it with his opinion of the law. 

Proposition 8 was found to violate the United States Constitution, which is the supreme law of the United States and therefore supercedes everything in a state's constitution.


What is good is what supports human flourishing and the love of God and neighbor. I add little to the excellent comments of Joseph O'Leary, Cystal Watson and Jim Dunn.

The "little" I would add would be:

1. In ancient times, there was no knowledge of a same-sex orientation. The universal natural orientation was believed to be heterosexual. If you consider this world view for a moment, then it would not be unreasonable to believe that when a heterosexual voluntarily chooses to perform homosexual acts (e.g., acts against the person's nature), it is an abomination and immoral. The is quite different when you consider the morality of sexual acts between same sex couples in a committed, faithful, loving and lifetime relationship (emphasis-added).

2. Heterosexual persons who do not voluntarily choose to be celibate priests or voluntarily choose a lifetime of sexual abstinence, are provided an alternative. They can express the love for another of the opposite sex, in a sexual manner in a marriage. On the other hand, homosexual persons who do not voluntarily choose to be celibate priests are required to practice a life-time of sexual abstinence. In other words, same-sex persons are not provided any alternative. Lifetime sexual abstinence is "imposed" upon homosexual person by authority (e.g., the magisterium) as a requirement for their salvation. Apologists claim that lifetime sexual abstinence must be embraced as "heroic virtue". For those that have their heads in the right place, the imposition of lifetime sexual abstinence is an impossible and excessive burden.

More importantly, lifetime sexual abstinence is a gift from God given to few "individuals", not a large group of people (e.g., 5% of the population). Many seminarians do not take their final vows because they lack this gift. I ask: if Aquinas teaches us that God never asks us to do the impossible, how can the magisterium impose and require same-sex persons to practice a lifetime of sexual abstinence, when this is a gift from God is given to few individuals?

It is time that the magisterium rethink its moral teaching about homosexuality and same-sex unions/marriages.



Mike B. -- On this thread and others and other sites, you have made the comment that celibacy is a gift given "to the very few", and hence, it is unreasonable to require homosexual persons to live celibately.  Because this comment has been made so often, I feel compelled to point out that chastity is asked of all of us, married and single, and can pose challenges for anyone in any state in life.  

There are many categories of Christians that I know who are not married and are living celibately in wholesome, productive lives.  This would include, besides persons in  clerical or  religious life who are keeping their vow of chastity, many divorced and widowed people who have not remarried.  It includes people who have never married, either by their own choice or because their life circumstances did not bring about an opportunity to marry.     When I read in your comments that celibacy is the "rare gift given to the very few", I am reminded of all these folks and wonder how your assessment of rarity squares with this population, large population.    God's grace has been given to them, to be sure, but ought we to insist that it is so rare?      

Maybe we are caught in a culture that makes chastity/celibacy/self-restraint seem quaint and anachronistic.    Insinuating that normal people can't survive without being sexually active sells people short and doesn't help the arguments this assertion is intended to support. 

"chastity is asked of all of us"

If chastity means only having married sex, then a very small percentage of the population is answering that 'ask' ...

@ Crystal Watson:

1. Re. the link you provided, Americans are hardly the center of the Catholic universe.

2. Just because a lot of people fail to "answer the ask"  doesn't mean "that ask" is "wrong."



These legal decisions are not laws being enacted. They are decisions based on laws that are in the books. The Bill of Rights (and state versions of them) was enacted to protect minorities in the face of majority decisions violating basic human rights. The democratic process is limited. We can't enslave people no matter how many people want to do so, and we can't deny people the right to marry based on majority decision if it violates the basic human rights of a minority group. That is a perfectly legitimate function of the judiciary.


There is a difference between remaining chaste in anticipation of marriage and remaining celibate for a lifetime. There is also a difference from being celibate for a purpose or because that is one's calling and being celibate to satisfy outside forces.

McGinley displays the characteristically pathetic and desperate response of the religious conservative whose demands that his destructive faith be imposed by law on everyone else, and whose arguements,  proven to be (as usual) so entirely an aggregation of malice, arrogance, vanity, and wilful ignorance, to be both embarassing and unacceptable to reasonable people.  Poor baby.  Now he has to try to salvage his enormous pretensions by whining about some other aspect.  Evenutally (sooner rather than later) he will revive his conceit by pretending (smugly and sanctimoniously, as usual) that he always "loved" homosexuals (not homicidally, for once) and favoured marriage.  His kind have managed this kind of image management--painfully no doubt--for other races and religions and ethnic origins and women in the past and now have to turn their mealy-mouthed ministrations in yet another direction.   Vanity, vanity.

McGinley displays the characteristically pathetic and desperate response of the religious conservative whose demands that his destructive faith be imposed by law on everyone else, and whose arguements,  proven to be (as usual) so entirely an aggregation of malice, arrogance, vanity, and wilful ignorance, to be both embarassing and unacceptable to reasonable people.  Poor baby.  Now he has to try to salvage his enormous pretensions by whining about some other aspect.  Evenutally (sooner rather than later) he will revive his conceit by pretending (smugly and sanctimoniously, as usual) that he always "loved" homosexuals (not homicidally, for once) and favoured marriage.  His kind have managed this kind of image management--painfully no doubt--for other races and religions and ethnic origins and women in the past and now have to turn their mealy-mouthed ministrations in yet another direction.   Vanity, vanity.


I agree with Ryan Rowenkemp's comments. Below are my additional comments that I hope will be clearer.

There is a significant difference between a forced and imposed requirement (by authority) and a voluntary human choice. I don't doubt that some divorced and widowed persons voluntarily practice celibacy. However, most people who are divorced remarry especially if the person is young and not old. Most single people get married, and many widows get remarried. All of them, the divorced, widows and single people, have a remain celibate or marry. People with a same-sex orientation do not have this choice...they must practice a lifetime of sexual abstinence. Couples with a same-sex orientation cannot enter into a marriage and express their love sexually, as heterosexuals can. I hope this is clear.

To "impose" a lifetime of sexual abstinence upon people with a same-sex orientation is an unreasonable burden. Celibacy and a lifetime of sexual abstinence must be voluntarily chosen, not forced upon a person, for it to work. Celibacy and lifetime sexual abstinence is truly a gift from God given to few individulals in the population. It is not given to a large specific segment of the population, namely those born with a same-sex orientation (abotu 5% of the population).

My point is simple. It is unreasonable and extremely burdensome and impractical to require "every" person born with a same-sex orientation to practice a lifetime of sexual abstinence for their salvation (save for those who choose to become celibate priests). The magisterium wants us to believe that same-sex people should voluntarily choose a lifetime of sexual abstinence as and expression of "heroic virtue" and that God will freely give the gift of celibacy to all who are "required" to practice it. 







According to the Caholic News Service, the Vatican Press in 2012 reported the following statistics:

1. All Catholics in World: 1.196 Billion...about 17.5% of the world population.

2. Total of Worldwide Women Religious Orders, Seminarians, Bishops, Priests and Deacons: 1.298 million....or about 1% of all worldwide Catholics.

I have no statistics of lay Catholics who voluntarily choose celibacy or lifetime sexual abstinence. My guess is that it is a very small percent of worldwide Catholics. 

There is no reliable worldwide survey of gay people. From a very rough scan of various surveys the percent of the worldwide population that are gay ranges from 1% to 5% with some surveys reporting as much as 10% of the worldwide population are LGBT.

Based on this, only 1% of worldwide Catholics "voluntarily" choose to be in a religious order (priests, et al) and practice celibacy. The percent of the worldwide population that are gay, even at 1%, do not "voluntarily" choose celibacy. At most, 1%-10% of the 1% might do so.

I ask: 

1. What is the morally justification for imposing the mandatory requirement of a lifetime sexual abstinence for all who are born with a same-sex orientation (save for the few who become priests etc)?

2. Does God give the gift of celibacy to all of them, most of them, or a few of them?

3. What prominent scientific organization who represent thought leaders (e.g., the American Psychiatric and Psychological Associations, the National Institutes of Health) concluded that a same-sex orientation is an "objectively disordered condition of a universal heterosexual orientation" that the magisterium claims without substantiation? I can save you some time and effort: You will not find such a study or conclusion

4. If procreation is a requirement of marriage, how does one justify the marriage of infertile couples, those who marry after menopause, those who decide that they don't want any children for good reasons? The RCC does not say that sexual intercourse is morally justified provided that the marriage has children, nor do they specify how many children morally justifies a marriage. In fact, sexual intercourse in a marriage does not rely on fucundity. The magisterium argument that somehow sexual intercourse limited to infertile times for a long time or a lifetime, is open to procreation is absurd and a failure to recognize the non-procreative motives, ends, intentions and physical acts of the couple.




I think opponents of same sex marriage were dead in the water when they  tried to frame marriage expansion as undermining peoples' rights somehow.You dont need to be any kind of legal expert to see it expands rights, doesnt constrict them.

 Ditto with any kind of argument that it undermines the rule of law. Expanding the definition of marriage reflects less state intrusion not more. Its one less instance where the government can't us who and who not to marry.

I think one thing that helped the marriage equality movement is that opponents to legalizing it haven't been able to come up with any argument  that makes sense. And then, when its often the same people who argue against government involvement in our private lives, arguing government should restrict people's rights to marry, the debate seems almost ridiculous.


@ Crystal: That Guttmacher study claims this: "Further, contrary to the public perception that premarital sex is much more common now than in the past, the study shows that even among women who were born in the 1940s, nearly nine in 10 had sex before marriage."

But women born in the 40s and 50s would have come of sexual age in the 1960s, so that they would be likely to have had premarital sex is not at all surprising. It doesn't at all refute the idea that a major change in sexual mores and behavors took place. I don't think this study can be used to support the conclusions that Guttmacher Institute wants to reach.

The Pill was invented in the mid-50's.  By the 60's it had been generally accepted.  That was the game-changer.   

About as much difference as someone choosing or being called to the eremitical life and someone being forced by law to solitary confinement.

I think we fall into a trap when we look for a scapegoat for things like abortion, same-sex marriages, divorce, contraception, et al. The scapegoat that the Church/magisterium uses is our modern culture, in particular the prevalence of pre-marital sex. Some how our culture has infected Catholics with some type of diabolic evil that prevents us from recognizing, understanding and "living" the truth. Some of this might be true, but it does address the larger question about a convincing moral theory on the issues of the divorced and remarried and Eucharistic reception, abortion to save the life of the mother, etc.

As Ann Oliver wisely said, the pill made pre-marital sexual intercourse safer and this had an impact on ther prevalence of pre-marital sex. According to some surveys, 75% of people today had sex before age 20. I agree that pre-marital sex has increased but I do not think that it is as bad as some have said. For example, I would like to see the actual divorce rates between couples who have had pre-marital sex and those couples who had virgin marriages. Even if there is some differences, what the hell does that mean?

I can tell you one truth: During my college years I had sex with a woman who I was dating. It lasted for 4 years then it ended when I graduated. However, I went to confession practically every week and that is the truth. I struggled with the guilt and the impulse. Only after college did I come to grips with it. I continued to have sex with women. However, I had a principle which I followed, namely: I would never date a woman for sex. If I dated her, there had to be some redeeming value, admiral characteristics of the person that would be the reason that the relationship might grow. If the relationship did not proceed as I hoped it would, for good reasons, I would date someone else. This does not mean that I never had a one night stand, but that was the exception, not the rule.  I finally married someone, and this person has been with me now for 42 wonderful years. I am very lucky, but many peopel who are divorced, have very succesful second marriages. To wit, pre-marital sex has very little to do with succesful marriages. However, if you were overly selfish when you were young, and trearted women as an object and not as subject, and this continued into a marriage, then your marriage will likely lead to divorce.

We should not make a mountain out of a mole hill. Pre-marital sex has been around for centuries, and it will be with us for a very long time. We should teach chasity-temperance, but we should not think it is the "cause" of the non-reception of certain magisterium teachings such as abortion, divorce, contraception, same-sex marriages and the like.  



Wasting Time     May 21, 2014 - 6:40pm

Yes, you are ... yours and ours.

However, the beauty of this site is that even Wasting one's Time is tolerated.  Otherwise, many of us would be banned instead of just being ignored.

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