1997 December Letters

The San Francisco Solution?

Thank you for publishing Archbishop William J. Levada’s “The San Francisco Solution”(August/September), on that city’s domestic partnership ordinance and the Catholic Church’s response. It was a masterpiece of good Catholic thinking as applied pastorally to a particularly difficult situation. The only surprise is that anyone would think that the Archbishop’s solution to the legislation in any way compromised Catholic doctrine....

The Archbishop’s solution is a pastoral solution, not a compromise of Catholic doctrine: “Each employee is allowed to designate a legally domiciled member of the employee’s household as being eligible for spousal equivalent benefits.” The Archbishop asks no question of those designated persons and he respects their privacy, for which they alone must answer to God. The employee may have an aged and sick friend legally in his home, he/she may be a guardian legally appointed by the court for a particular party, etc. This compromise does not force the Catholic diocese to recognize domestic partners as the equivalent of marriage. This is not and cannot be possible in Catholic doctrine....

The Archbishop has shown us how the Church can be compassionate and pastorally wise even while upholding a doctrine that is unpopular among gays but that does not condemn them or make them objects of opprobrium. I am tempted to say that the solution borders on genius, but that might embarrass the Archbishop. Let’s just say that the Lord has chosen a wise steward to guide his flock in San Francisco.

––Peter J. Riga
Houston, TX

...  The rationale of social benefits for family dependents is straightforward. Families include children that need to be taken care of. The ideal caretaker of the family is the mother who needs to be provided for while she discharges the most productive work in the community: the rearing of children. This is, in my estimation, the rationale for providing social benefits for the family. But what are the reasons for providing benefits for a roommate of either sex? None. Both “partners” have jobs—or can have jobs since there are no impediments or dependents to prevent it.

The profound meaning of the husband and wife relationship leading to a new creation (the offspring) is unique and foundational, and of a different order from homosexual relationships. It is therefore unfair to blur this truth by equating homosexual relationships with family relationships....

––Luis F. Caso
Worthington, OH

Reading Archbishop Levada’s defense of his “San Francisco Solution,” I am struck not only by the weakness of his arguments, but by his lack of foresight on how his decision will affect the debate on “domestic partnership” and homosexual “marriage.”

Although Archbishop Levada certainly did proclaim the Church’s teaching on sexuality publicly and clearly, he utterly failed to proclaim other important teachings that were threatened by the San Francisco ordinance—the centrality of the family to society and the duty of the state to promote its health. As the Catechism of the Catholic Church states, “The importance of the family for the life and well-being of society entails a particular responsibility for society to support and strengthen marriage and the family” (2210). The San Francisco law—and all other laws purporting to equate cohabitation with marriage—are a direct threat to the stability of the family, do nothing to support or strengthen marriage, and consequently should be denounced by Church leaders on precisely those terms.

Providing “spousal equivalent” benefits, as the Archdiocese of San Francisco will now do, tells cohabiting couples that marriage is not really all that important to society, but is merely a private decision. Moreover, it means that the state and private organizations will no longer provide a financial incentive for such couples to get married. In an era when as many as 40 percent of Catholics live together before marriage, and when marriage is under increasing attack, shouldn’t the leaders of the Church be talking about defending the family in our laws, rather than offering vaporous comments about universal health coverage?

Particularly disturbing is the Archbishop’s Pollyana-like belief that his “solution” will lead to the defeat of other “domestic partner” bills. That is along the same lines as General Lee defending his Appomattox “solution” as likely to lead to the defeat of other Union forces in the field. Consider the powerful rhetorical weapon he has provided the proponents of these bills, and the fact that they are already crowing about the Church’s recognition of same-sex relationships. Does he believe that Catholic and other pro-family activists will be emboldened by his decision? What response does he think can be made when the “domestic partnership” advocates ask, “If it’s alright for the Archbishop of San Francisco, how can you oppose it here?” Which one of his fellow prelates will step out front and oppose similar ordinances, and thereby implicitly criticize a brother bishop?...

––Edward T. Mechmann
Yonkers, NY 

Dealing with Divorce

In her exchange with Barbara Dafoe Whitehead (“End No-Fault Divorce?” August/September), Maggie Gallagher writes a brilliantly logical refutation of no-fault divorce that, unhappily, begins from premises unrelated to reality:

• Marriage is analogous to other contracts.

• No-fault divorce has transformed what it means to get married.

• No-fault divorce laws have pushed us over the edge from being a society in which the majority of marriages succeed to one in which a majority of new marriages will fail.

• When the law treats divorce as a unilateral right of one partner, culture can hardly take seriously the moral claims of marriage.

In fact, since people ceased being chattel, marriage ceased being a contract like other contracts.

Further, no-fault divorce has not transformed what it means to get married, at least in the arena of heart and hope. People don’t get married thinking they will some day bitterly hate the one they now promise to love forever.

Third, it is debatable that the longevity of a marriage indicates the success of that marriage.

Lastly, our culture does take the moral claims of marriage seriously, even with no-fault divorce. Divorce remains a painful admission of failure. Families, blissfully uninfluenced by no-fault divorce law, exert great pressure on their members to attempt wise choices of marriage partners, and to work hard at making marriages happy ....

––James E. Metcalf
Hudsonville, MI

In reading Barbara Dafoe Whitehead’s argument concerning no-fault divorce, I was struck by how many of her points actually led me to a conclusion opposite to the one they led her to. Typical among them is the argument that young couples, assuming their marriage will fail anyway, will be less likely to get married if divorce is harder to obtain. Exactly! God forbid that young men and women who have reason to suspect their marriage will fail should not get married in the first place. Good Heavens! What’s next? Before you know it we will be trying to impress upon engaged couples the seriousness of the commitment they are making.

––Steve Jones
Charlottesville, VA

I applaud Ms. Whitehead’s personal efforts in support of marriage. But I respectfully disagree with her conclusion about no-fault divorce. Her argument seems to be that law is an expression of the will of the people, and that we should first seek to rectify society before we change the law lest the law be thrown into disrespect. I would argue, however, that law has a didactic function and therefore serves as an instrument to rectify society—as it has, for example, with respect to racism. In matters of custom the law can express the popular will. But the law must never deviate from justice, without which society has no foundation. No-fault divorce inflicts injustice not only upon the injured spouse (often an abandoned wife), but also upon society.

The most profound injustice is done to children. Every child comes into this world with a natural right to have two friends waiting to receive him. Marriage is never easy, but the spouses are obliged to work out their own problems. Whatever their dispute may be, their children are still entitled to the undivided commitment of both parents. Divorce is nothing less than the psychic despoliation of one’s offspring. If a spouse can legally walk away from a marriage as if it were merely a contractual relationship, what are the children but property whose ownership is to be determined by a court? If our purported concern for children is more than just fiction, we should normally forbid divorce as long as there is a child of the marriage under the age of majority. Certain conditions may require separation of the spouses, but remarriage should be prohibited and financial obligations should be maintained....

––Adrian Calderone
Brooklyn, NY

...  I am seriously troubled that neither Ms. Gallagher nor Ms. Whitehead addresses the impact of divorce law on children. Rarely is an area of law so directly confrontational and so clearly felt by our children. First, children from the marriage must go through the divorce. We have heard before so many times in a divorce: “What is happening between your mother [father] and me does not change the way I love you,” or some variant thereof. We know now (finally) that divorce is bad for children....

The second consequence of divorce for children is how government and the law affect their opinion of marriage and divorce. They realize, sooner or later, that the law makes divorce fault—free.... When law makes divorce permissible, it sends the unmistakable signal to the child: marriage as an institution is not to be carefully guarded....

––Gregory J. Yu
Burlingame, CA

Barbara Dafoe Whitehead replies:

Although I share Messrs. Calderone and Yu’s concern over the damages of divorce to children, I do not share their faith in fault law as an effective way of protecting children from the harms of divorce. This does not mean that there should be no attempt to change the laws governing divorce. Indeed, the states are considering a number of worthwhile reform measures: mandatory premarital counseling, longer waiting periods before divorce is granted, and, when divorce cannot be avoided, a “children-first approach” that would require parents to establish a plan for their children’s economic and educational futures before they go about the business of dividing marital property or establishing custody.

Nevertheless, I argue for a measure of modesty in our expectations about the ability of law and public policy to govern family affairs. The swift decline of marriage reminds us of how quickly an institution can fall apart when it loses support and sponsorship within the larger society. The custodians of a marriage tradition—women, clergy, marriage counselors, scholars of marriage and family—have defected to the divorce culture in large numbers. A spirit of sourness and disappointment pervades novels, soap operas, women’s magazines, television docudramas, and talk shows. Today’s adults feel little responsibility to prepare the next generation for the rewards and responsibilities of marriage.

As a consequence, the body of inherited thought, revised practice, and new knowledge that traditionally sustains marriage has all but perished. In the midst of such a profound breakdown in the extralegal supports for marriage, the resort to legal coercion to shore up the institution may be as much symptom as cure.

Considering Suicide

Professor David Novak’s article “Suicide Is Not a Private Choice” (August/September) is perhaps as provocative for what it does not say as for what it does. And one does not know whether the omissions are as deliberate as the assertions.

Mr. Novak observes that in the Talmud suicide is prohibited, and assisting a suicide is legally punishable. Much of the Christian tradition has been equally explicit. So, for example, both Augustine and Aquinas reject any moral legitimacy for suicide (though, it seems to me, for substantially different reasons). And just last year Joseph Cardinal Bernardin, the Archbishop of Chicago, wrote a widely publicized “open letter” to the U.S. Supreme Court saying that “our legal and ethical tradition has held consistently that suicide, assisted suicide, and euthanasia are wrong.”

Perhaps Mr. Novak would himself endorse these categorical condemnations. But his article contains no such condemnation, and the arguments that he mounts would not support it. At most they support the conclusion that suicide is not per se a purely private choice, and that some wider community—perhaps even the political state—has a legitimate role to play in this affair. Many of us who are inclined to think that suicide, though a sad and tragic undertaking, is morally (and spiritually) legitimate in some circumstances could concur in that conclusion....

Some of us will think that suicide is, with respect to privacy, roughly analogous to marriage. In only the most extreme circumstances—Robinson Crusoe on his desert island—would suicide approximate a purely private choice. Robert Frost felt the pull of the lovely woods, “dark and deep,” but he decided to go on because “I have promises to keep, and miles to go before I sleep.” Of course, promises are not the only way in which we are linked to other people and communities. And Mr. Novak may well be right in thinking that there are other relations that have more of a “given” character about them, and so are less voluntaristic, than promises. Thus we may have many things to “keep,” and many miles to go, before we may legitimately lie down to sleep.

It does not follow, however, that we never come to the end of those miles, that we have an infinite weight of such obligations. There is, in fact, a powerful defense of the legitimacy of (some) euthanasia and suicide, argued on the basis of natural law principles, by Lisa Sowle Cahill (“A ‘Natural Law’ Reconsideration of Euthanasia,” in Stephen Lammers and Allen Verhey, eds., On Moral Medicine ). A categorical rejection of the legitimacy of suicide under all circumstances would need much more than David Novak has supplied here. But maybe, as I say, he did not really intend such a rejection.

––George I. Mavrodes
Department of Philosophy
University of Michigan
Ann Arbor, MI

David Novak replies:

I very much appreciate George Mavrodes’ sympathetic reading of my “Suicide Is Not a Private Choice.” As regards his point that my article does not contain a categorical condemnation of suicide, he is right. Such a categorical condemnation could come only from the view common to both Socrates and the Rabbis that one may not leave this world until taken from it by God. In other words, it comes from the most fundamental religious view of divine ownership of the world. The problem with this view is that it is not helpful in authorizing human intervention when someone else’s suicide is imminent. Such a justification for intervention seems to place too much divine authority in human hands, which is the problem of religiously justified tyranny, one that goes back to Amos’ rebuke of Amaziah and Antigone’s rebuke of Creon.

So, my point in the article was to emphasize suicide as an interhuman problem. It is the problem of how human community, in its very raison d’être, must save all of us from our own destructive impulses, both of ourselves and of others. Since human responsibility and authority is never as extensive as that of God, it stands to reason that one cannot derive more categorical condemnations from it. That means that there are cases where we can go only so far, in effect not putting a suicidal person in a straightjacket. But our message must always be that no matter how far gone you are, we will never justify leaving you to your personally unbearable pain and rage, even when we cannot reach you. Those we cannot save we mourn.

What Elected Clinton?

In the August/September issue, John Green, Lyman Kellstedt, James Guth, and Corwin Smidt make a persuasive case for “Who Elected Clinton.” Because I found both Clinton elections so unsettling, I have pondered the same question myself. I do not challenge the authors’ findings, but ask only that one other angle be considered.

Let us concede that the groups who voted for Clinton are described accurately, and that they voted for him for the reasons the authors describe. Would that mean that there are other Democrats, close to Clinton in political philosophy, who would also have beaten Bush and Dole? Paul Wellstone, Michael Dukakis, and Barbara Boxer, for example? I say no. In the same vein, would Clinton have been able to defeat Ronald Reagan in his prime? Reagan’s platform was virtually the same as that of Bush and Dole. I say no again.

My point is that the Clinton elections were won by carrying a swing vote attracted to Clinton in the main because of what I call his “star quality.” I mean by that something close to what people mean when they use the term “charisma,” but something more superficial—and troubling—than the magnetism that surrounded FDR and JFK. It is a product of the television age. Those who vote on the basis of political philosophy and a patriotic concern for the common good might find the notion of “star quality” humorous, but the modern audiences of the Oprah-type shows do not....

Even the things that conservatives mocked worked in Clinton’s favor: the MTV appearances, the saxophone playing on the Arsenio Hall show. There is a segment of our population that reacts well to such things. And they were the swing vote. “Soccer moms” is as good a term as any to describe them. Fortunately for the Republicans, there does not seem to be any other Democrat on the horizon with the same combination of roguish good looks and a flair for effective sentimentality that characterizes Clinton. He might be the most detested President of this century, but he hit on a fascinating winning formula: combining the votes of those Democrats who vote for him while holding their noses, because he is a Democrat, with the vote of the soccer moms—who come in both sexes, by the way.

––James K. Fitzpatrick
Mahopac, NY 

In Defense of Canada

As a longtime subscriber and promoter of your excellent publication, I write to express my dismay in regards to your rather infrequent references to Canada, your northern neighbor.

The essay entitled “Oh, Canada” by James Nuechterlein in August/September is written by an American professor who taught American history in Canada from 1964 to 1981. He describes himself “as an instinctive American patriot” who “knew from the beginning” that he could never become a Canadian. In my view, these are not impressive qualifications to comment on the current Canadian political scene....

Mr. Nuechterlein concludes that the heart of Canadian patriotism is anti-Americanism, that Canadian culture is perpetually fragile, and that we are facing the possibly imminent break-up of the nation. Oh Canada! ...

Canada is a wonderful country, this year again rated number one by the United Nations....

As to our imminent break-up please remember that the separatists have lost two referendums. There may or may not be a third. Why assume that there will be and that the separatists will win?

I hope in the future that you will give your readers a more positive view of Canada, “my home and native land.”

––R. O. Stephens
Campbellford, Ontario

The Harlot Church?

The statement “That They May Have Life” (August/September) from the Lutheran Church—Missouri Synod was marvelous and just right, beautiful as truth is beautiful. However, the Lutherans could afford to say it—it won’t cost them anything.

The Catholic Church has become hostage to federal money. (Note Archbishop Levada’s compromise in the same issue.) Over the past thirty years, all manner of moral adjustments have been made by liberal bishops to elect candidates who would vote money to support social programs. No reasonably intelligent person would find a comparison between the innocent fetus and a murderer awaiting capital punishment—but some of our bishops have. The Lutherans have not.

We have the example of Jesus inviting the rich young man to give away all that he has and to follow him. Christ’s disciples do not grab the young man and tear his money from his toga. There is also a commandment against stealing. No, as Christians, we are to open our hands freely from love. It takes a leap of faith to trust that God will provide.

Today the appeal is not to “Christian charity” but “social justice.” And our hands are pried open by the tax collector to redistribute, coldly, our hard-earned money. When we give as Christians, we bring Jesus to the receiver. We see the Lord in those we help, giving them dignity and hope.

The Catholic Church should be the Church that says what the Lutherans have said. Until that time the Bride of Christ is a harlot.

––Nancy E. Hamel
Ijamsville, MD

For the Record

I want to thank you for the generous review of my book, Covenant and Commitments from Westminster/John Knox (Briefly Noted, August/September), but wish to clarify two points. First, I am not the general editor of the series on Religion and Family in America Culture in which it appears. Don Browning of the University of Chicago is. I am general editor of another series that includes Tom Derr’s fine book, Environmental Ethics and Christian Humanism from Abingdon, which you also reviewed.

Second, while other volumes in the Browning series deal with family life and law, social psychology, contemporary biblical scholarship, comparative church teachings, etc., this volume deals with the relationships of the family to economics, including various ideologies and patterns of poverty, wealth, property, productivity, consumption, division of labor in the household, and participation in civil society.

––Max L. Stackhouse
Princeton Theological Seminary
Princeton, NJ

Discrimination, Rightly Understood

Not that Richard John Neuhaus needs any help in his exchange with Dean Kornman about discrimination for or against religion at Yale Law School (Correspondence, August/September), but isn’t it obvious that “discrimination” or its opposite, “anti-discrimination,” are hardly neutral words, or actions for that matter? The dynamic of “discrimination” implies a choosing based on discernment. It is always discrimination for or against, reflected as anti-discrimination against or for.

The neutralization of discrimination, as Dean Kronman would have it, makes “anti-discrimination” an absolute standard, much as Americans tend to make “freedom” or “democracy” absolute. While this absolutizing can be found in any puritanical society, it is an unfortunate legacy of our American foundations. It jars Catholic sensibilities, which recognize only God as absolute. A proper sense of reality underscores “freedom” in God, “democracy” in God, and “discrimination” in God, which is to say that such ideas are not absolutes but derive their moral or political force from a proper relation to the sole absolute.

We talk properly, then, about good or bad freedom, good or bad democracy, and good or bad discrimination. This logic applies equally well to the shibboleths of the American idiom: censorship, politics, liberalism, etc. All of which reiterates the ancient wisdom: every virtue is shadowed by a masquerading vice. Public and civilized dialogue should be an effort to distinguish the good from the bad, a dialogue rendered impossible by the absolutizers.

––J. R. Breton
Walpole, MA

Whites and Nonwhites

In the Public Square of August/ September, Richard John Neuhaus addresses President’s Clinton’s recent commencement speech on race relations (“President Clinton and the White Race”).... The President’s “Can we become one America in the twenty-first century?” made me wonder if Rodney King had been hired as his speech writer. In contrast, Father Neuhaus argues essentially that getting along better in this country with regard to race depends on our ability to get beyond making an issue of race.

Because Mr. Clinton exploits race and Fr. Neuhaus minimizes it, they both miss a central point of America’s race relations. The “majority” that both these men refer to is made up of white people who have benefited from a white-designed social infrastructure that to a significant degree has used military, religious, and economic power to enslave, murder, oppress, and disregard nonwhites. This piece of history is important to recognize and validate simply because it’s the truth, an essential concern of Christianity....

Fr. Neuhaus opines that members of the white “majority” don’t identify themselves by race and that the President is fostering racial disharmony by inviting them to do so. He’s right on both accounts. Stopping there, however, he denies the experience of the people who make up the other half of the relationship (nonwhites), how they might view themselves, and how they might view the “majority.” Disregard race here and you disregard what is important to many of these people... again. Even to this white, Catholic writer, Fr. Neuhaus, at times, comes off sounding like another white guy using denial and minimization to “get past” the race issue....

Christ called people to coexist with him and each other differently but in doing so he did not employ a fuzzy mixture of denial, minimization, and separatism. He came against sin, the one thing he saw uniting people in their isolation from God, and he spoke candidly to that unpleasant truth, forging new alliances in the process....

––Robert A. Howard
Chico, CA

The Problem with Originalism

In the August/September Public Square (“Stemming the Epidemic Is Not Enough”), Richard John Neuhaus writes, “The job of judges is to interpret the Constitution accurately, which means to do so in an ‘originalist’ reading that respects what those who wrote and ratified it actually meant.... A faithful reading of what the Constitution says.... must of necessity attend to the moral principles embraced by its authors, including the Declaration’s ‘We hold these truths... ’”

Originalism is seductive to thoughtful conservatives because it gives judges an impartial method for rendering judgment. But originalism, like all excuses for judicial review, ultimately reveals its contempt for democracy.

Take the equal protection clause of the Fourteenth Amendment as an example. An originalist judge may be persuaded that its intent is to create a “color-blind society.” Hence he would strike down any city or state policy that considered race in government hiring or public university admissions. But such an action would be justified only when current federal civil rights law may apply to the case. A strict reading of the Constitution, one that doesn’t read things into it that aren’t there, cannot by itself strike down affirmative action laws in the states, no matter how immoral or unjust they might be. Regardless of what its authors intended, equal protection under the law does not mean equal distribution of privileges and benefits. Why conservatives consistently applaud the Court’s bans on affirmative action is beyond me.

My problem with invoking the moral understanding of the authors is, in the end, a moral objection. As in the above example, it still leaves room for judges to read things into the Constitution that aren’t there, to suggest that the meaning of the document is something more than what it says. The truth is, our elected leaders also hold the job of interpreting the Constitution accurately, and if they are wrong, we can remove them. When the Constitution is unclear, who is to decide, a judge discerning what James Madison et al. really meant, or the people? Madison himself would choose the people. Denying the people the opportunity to interpret the Constitution and decide the public good is one of the greatest political evils. Each time the Court prevents public action on an issue, the cancer on the republican soul spreads; we are encouraged to be concerned not with the good of the whole but only with ourselves.

Our forefathers improved on the model of the British Constitution in many ways, but they failed to adequately rest authority over the Constitution in the people alone by providing political remedies for the Court’s errors. This is a great tragedy that keeps repeating itself.

––James L. Wilson
Chicago, IL

RJN replies:

I agree on the priority of the political over the judicial, but that does not leave courts without some role in interpreting the Constitution. That judges should “attend to the moral principles” means, minimally, that they should not discover that the Constitution requires things that contradict what we can assuredly know were the principles of those who wrote and ratified it. But yes, where the Constitution is unclear, the courts should defer to the people. Mr. Wilson’s thoughtful letter underscores that neither “originalism” nor any other catchword does justice to the many aspects of constitutional interpretation.