I am rather a fan of Dr. Heaney, who has a new piece in The Public Discourse today. Money quote:
Those in favor of such an expansive version of liberty, and thus an expansive version of marriage and sexuality, seem to recognize this fact and use it to their advantage over those who think that civil law and ordered liberty are grounded in some truth about human beings and moral law. This latter group continues to believe that there are such things as human rights that preexist the civil law, including rights to freedom of conscience and worship. Thus, they tend to respect these rights in those with whom they disagree—that is, they tend to a certain level of tolerance.
The former group, while ostensibly extolling tolerance, cannot tolerate that which threatens their own practices of liberty, including points of view that oppose their own. Such thoughts become the crime of hate speech. Many across the globe, and an increasing number in this country, are facing the wrath of these lovers of pure liberty (for themselves).
I wonder, though, whether Dr. Heaney is not a little too hard on the personally-opposed-buts (henceforth “POBs”). I’ll give the full context, but the emphasized section is the bit to which I take minor exception—a quibble, really:
…an accusation [of insincerity] rankles the fervent “personally opposed” devotee, because he sincerely believes that his is the proper course of action. His argument about marriage, for example, tends to look something like this: Civil marriage is completely different from religious marriage. If a religion thinks it is proper to keep marriage between one man and one woman, that is no concern of civil authorities. Similarly, religion has no authority to say what civil marriage is. Since it is a purely civil affair, it must be ruled by purely civil laws, especially the Constitution’s Equal Protection clause. The push for same-sex unions and polygamy, then, is just a case of providing equal rights.
Let us leave aside the question of whether these statements accurately reflect the faith tradition in which our “personally opposed” friend claims membership. (Catholic teaching, for example, holds quite the opposite: that as a natural institution, marriage is the union of one man and one woman.) If you are truly opposed, yet you truly believe that the Constitution will not permit your position to be enshrined in law, then your task is to change the law—including, if necessary, the Constitution—to reflect what you believe to be the truth for human beings and the best for society. At the very least, your duty is to not exacerbate the situation.
I will stay as close to his original language as possible. It appears that Dr. Heaney is imposing a positive moral duty on all citizens to change the law to reflect what each believes to be the truth for human beings and the best for society.
I’m sure all of us will agree with him—to a point. Heaney goes on to remind us all of the essentially moral nature of the crusade against slavery, despite the fact that Negroes had no legal claim whatsoever to equal protection under the law, and the further fact that slaveholders’ property rights were clearly protected by law and precedent, including the Constitution. This led William Lloyd Garrison, my favorite abolitionist, to publicly burn the Constitution in 1844. The nation ultimately recognized the natural rights of man which pre-existed, informed, and superseded even the Constitution, and established a legal order that reflected the natural order in that regard. Huzzah. There is much legitimate argument over the morality of the Civil War and its incidentals, including even the particular manner of abolition, but anyone who questions the abolition of slavery in itself has about the same moral legitimacy as a neo-Nazi.
But Heaney’s claim seems to be much broader than that. We are obliged, on his account, to create a society that encourages and reflects the truth for human beings. This would seem to embrace not only the truths of natural law, but the truths of religion. Here is where I see some difficulty. While Dr. Heaney’s Catholic Church embraces the universal right to freedom of religion and liberty of conscience, the Church has no problem with the civil establishment of religion. Indeed, the Church, largely pre-existing the modern European nation-state, has been either sole sovereign or formally established religion for much longer than it has been a merely spiritual power. It remains the established religion in a number of jurisdictions. The Catechism’s teaching on religious liberty fits neatly into this schema. If we are quite serious about the law reflecting the truth of the human condition, then should Catholics not aim to establish Catholicism as the taxpayer-supported, state religion from which conclusions about human nature in light of Revelation might be drawn? Should not Protestants aim to establish Protestantism, and Muslims to establish sharia?
Dr. Heaney’s position, if extended without limitation, as his language implies, would seem to justify his friend’s complaint that his position is incompatible with multi-faith democracy and the Establishment Clause of the First Amendment. It suggests, moreover, that religious believers ought to seek to bind all citizens to all their beliefs, including those grounded in unanswerable revelatory claims, not just those ultimately rooted in natural law reasoning. This would make reasonable a law supported by Jehovah’s Witness voters outlawing blood transfusions, or a Jewish neighborhood prohibiting local grocers from selling pork products. Such laws may be entirely Constitutional, but they are antithetical to the sort of pluralistic society America has carefully constructed. To coin a phrase, revelatory claims end at the other guy’s nose.
Now, Dr. Heaney friend’s complaint is nonsense with respect to marriage law. The argument against same-sex marriage finds good grounding on the same natural law tradition that abolished slavery and gave women the vote. Nevertheless, in the marriage debate, where same-sex marriage opponents are frequently and loudly accused of imposing theocracy and undermining the Constitution, it is critically important that we avoid giving any appearance of doing precisely that.
My other quibble with this piece is that it did not include a single reference to Captain Louis Renault, the POB’s POB.