Gay marriage leads to end of our religious liberty

Gay marriage leads to end of our religious liberty

Catholic Charities of Boston ending its historic service of facilitating adoption for the neediest kids because it wouldn’t allow gays to adopt them is the result of Massachusetts’ creation of the fiction called “gay marriage.” So says, Maggie Gallagher in a Weekly Standard article entitled “Banned in Boston.” (Did you catch the pun? Know what marriage banns are? Esoteric, I know.)

Gallagher starts off by quoting people on all sides as saying that the Church’s working at providing adoption services was good and that ending it was bad. But everyone disagrees on why it happened. The pro-gay side says the bishops put a political agenda ahead of the children. The Church says that you cannot do evil that good may result and that placing children with gay adoptive parents does spiritual (and perhaps other kinds of) violence to them. But Gallagher says that what is being missed is the connection to gay marriage. Gay activists said supporters of traditional marriage shouldn’t care about gay marriage because it won’t affect them or change their lives in any way. Really?

Just how serious are the coming conflicts over religious liberty stemming from gay marriage? “The impact will be severe and pervasive,” Picarello says flatly. “This is going to affect every aspect of church-state relations.”

… In times of relative peace, says Picarello, people don’t even notice that “the church is surrounded on all sides by the state; that church and state butt up against each other. The boundaries are usually peaceful, so it’s easy sometimes to forget they are there. But because marriage affects just about every area of the law, gay marriage is going to create a point of conflict at every point around the perimeter.”

Sexual liberty trumps religious liberty

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Written by
Domenico Bettinelli
16 comments
  • Molly,

    Why is this ignorant? Children deserve and need a male father and a female mother. Just as they deserve and need food and shelter. To deny children food or shelter would cause them harm. To deny either a male father or a female mother would cause them harm. Not to mention the fact that the Church teaches that homosexual sex is intrinsically evil. It is not good to say that something that is evil is good. To teach another to believe this would be doing them spiritual harm. I have to imagine that gay parents would teach their children that gay sex is good.

    You can argue that the Church is wrong to say that children deserve a male father and female mother.  And/or you can argue that the Church is wrong to say that gay sex is evil. But I am thoroughly perplexed why you would say that a Catholic is ignorant for espousing these views? Please enlighten us and the Church.

  • Molly –

    From Considerations regarding proposals to give legal recognition to unions between homosexual persons

    As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood. Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development. This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case.

    I’d encourage anyone to read the whole thing. While it doesn’t present the complete argument contra soi-disant ‘gay marriage’, it’s quite well reasoned as far as it goes.

  • As the others state, this isn’t my statement; this is the Church’s teaching on the matter. If you have a problem with this, it’s with the Church. Dan does a good job of explaining the rationale. I have nothing to add.

  • “One of the sisters there told me that John Paul, who was not cold in his grave at the time, had been a “terrible” man who “hated women.” I surmised that it was because he would not “allow” female ordination.”

    I’ve heard this charge against Pope John Paul II before. One person I heard making it actually wished that the JPII and then Cardinal Ratzinger would die. This was in 1997 or 1998 and I guess the person believes Church teachings will change once the current “guard” is out of the Vatican. I remembered her comment very well and chuckle the day when Benedict XVI became pope.

    Besides being related to the “oppressive” Church teaching on women’s ordination, I believe those who make the “Pope hates women” charge are also against the Church’s teaching on abortion and contraception—the two great sacraments of the women’s right activists.

  • I think the Church needs to be fair and present the unvarnished version of what she teaches. Now is not the time for mealy mouthed press releases nor for 80 page tracts.

    At this point I can understand the cause of the confusion. You have Priests from the Jesuit Weston School of Theology testifying in favor of gay unions and you have priests calling for Brokeback Lent.

    The Church needs to be Catholic.

  • I think you are arguing a technicality. To say the court “ordered gay marriage” is three words while your explanation is much longer.

    Note that she didn’t say that the court “made gay marriage legal.” It would be incorrect to say that.

    Whatever the legality of it, the court did order city clerks to begin issuing marriage licenses on May 19, 2004.

  • Dom said:
    Whatever the legality of it, the court did order city clerks to begin issuing marriage licenses on May 19, 2004.
     
    I hate to be technical as well but I think Mary Jane is right and it is critical to understand how and why we are in this mess.  It is INCORRECT to say the court ordered gay marriage and it is INCORRECT to say that the court ordered town clerks to do anything because they did not.  Indeed, the court did not even order the lrgislature to do anything, because the Court has no legal power to give orders the legislative branch. 

    The court did not order town clerks to issue marriage licenses, Mitt Romney ordered that—without any legal authority, because the law does not allow it.  If it weren’t for Mitt Romney, no gay marriages would ever have happened. 

    Regardless of what Romney did, gay marriage is not legal in Massachusetts.  In Goodridge, the SJC interpreted the marriage statute to NOT PERMIT same sex marriage.  The SJC declared the marriage statute “unconstitutional” BUT they did not strike that law.  It remains a statute on the books as it was originally written and intended.  The Massachusetts Constitution clearly states that a law that remains on the books is the law until it is repealed by the Legislature.  The SJC simply changed the “common law” meaning of the term marriage but because that term already exists in the statute and in the Constitution, the SJC’s “common law” declaration of a new meaning did not and could not change the statute nor the words of the Constitution because common law is subordinate to statutory and constitutional law.  The SJC acknowledged this in the Goodridge case saying that they could not legislate and therefore gave the legislature 180 days to act (not an order, a request, a declaration). 

    The legislature neither repealed the “unconstitutional” marriage law nor changed the law by way of a change to the statute nor by allowing the Constitutional Amendment to go through in 2005.  Therefore the “law,” the marriage statute, that forbids same-sex marriage, continues to forbid it. 

    The only reason why same-sex marriage licenses are being handed out is because, as I said, Mitt Romney ordered them to be but he did that without legal authority under any statute.  This is confirmed by the fact that the Massachusetts Legislature currently has two opposing bills pending before it; one that promotes same-sex “marriage” (H977/S967) and the other that defines marriage as the union of one man to one woman (H654).  If same-sex marriage” was currently legal, there would be no reason to have either of these opposing bills pending before the Massachusetts Legislature.

  • Sean said:
    . . . the Attorney General’s office, the judges themselves, the plaintiff’s attorneys, and probably dozens of other lawyers have all “missed” this key point; making them either very lazy or very stupid. 

    . . . OR VERY BIASED.  My guess . . . very biased. 

    I am an attorney as well.  There is a thing called legal authority.  It stems from the Constitution and flows through the statutes.  The statute DOES NOT PERMIT . . . read Goodridge . . . same-sex marriage.  So how does the statute change to suddenly PERMIT SSM without the legislature changing the statute?  Sean’s answer is:  “In other words, even though the drafters of the original legislation did not intend it to include gay marriage, we will treat it as if it does anyway.”  Are you really saying that the court may change the meaning of a word in the statute and then the statute changes?  Ever hear of “legislative intent?”  Statutes cannot be treated as if the it were intending something other than what was actually intended.  Statutes are to be construed/interpreted according to the meaning that the drafters/framers intended.  “Whether a statute is wise or effective is not within the province of courts. Commonwealth v. Lammi, 386 Mass. 299, 300 (1982). “It is not for [a] court to judge the wisdom of legislation or to seek to rewrite the clear intention expressed by the statute.” Mellor v. Berman, 390 Mass. 275, 283 (1983).  In any event, the SJC actually followed this in Goodridge and interpreted the statute to NOT PERMIT SSM.

    Sean said:
    “They didn’t need to change the statute because they changed the definition of marriage.”  The problem with Sean’s speculation here is that the Candian case that you refer to, Halpern, explicitly stated that it could not do what it did if a statute were at issue:  “[B]ecause this appeal involves a challenge to a common law, judge-made rule, the analysis involves somewhat different considerations than would apply to a challenge to a legislative provision.  Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.”  And a little later on in the opinion:  “[T]he argument . . .  that we should defer to Parliament once we issue a declaration of invalidity is not apposite in these circumstances.  . . . consideration of the role of the legislature and legislative objectives . . .  do not arise where the genesis of the Charter breach is found in the common law and there is no legislation to be altered.”  That means had there been a statute in question in Canada (as there was here in Massachusetts), the Halpern court would not have been able to do what it did.  (to be continued).

  • The Canadian case, Halpern, was exclusively about the “common law.”  That is fine in Canada, where there exists common law marriage (Egan v. Canada, [1995] 2 S.C.R. 513, 536-37) but not in Massachusetts where common law marriage is and has always been illegal (Commonwealth v. Munson, 127 Mass. 459, 460 (1879) (“In Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth; the canon law was never adopted; and it was never received here as common law that parties could by their own contract without the presence of an officiating clergyman or magistrate, take each other as husband and wife and so marry themselves.”)).  Changing the common law meaning of the term marriage, cannot change its constitutional nor statutory meaning, because the common law is subordinate to constitutional and statutory law.  See School Committee of Lowell v. Mayor, 265 Mass. 353 (“That principle is that, where a statute has been enacted seemingly intended to cover the whole subject to which it relates, including a remedy for its infraction, other provisions of the common law, including such as are remedial in nature, are thereby superseded. Many of our decisions illustrate the application of that principle.”);  Decker v. The Black & Decker Manufacturing Co., 389 Mass. 35 (1983) (“To uphold the third-party plaintiffs’ argument would be tantamount to placing “certain rules of the ‘common law’ … above all change except by constitutional amendment. Such a result would offend our notion of the checks and balances between the various branches of government, and of the flexibility required for the healthy growth of the law.”).

    Sean said about the 180 days:  The court merely allowed them 180 days to do something if they wanted to. What the heck would the legislature want or need to do if the court has already changed the law.  Indeed, what the heck do we need a legislature for if they simply act on things that are unnecessary?  That makes absolutely no sense.  They were given 180 days for one thing and one thing only . . . to do their job, which is to create laws.  They did not do their job.  They did not repeal the current statute that currently (and historically) DOES NOT PERMIT (according to the explicit words of the SJC in Goodridge) same-sex marriage.

    Sean said:  “What happens, as in this case, when the decision and the statute are incompatible is that the statute, to the extent it can be, is interpreted and enforced in consonance with the decision.  To the extent it can’t be read in conjunction with the decision, the statute is unenforceable.”  BUT ONLY IF THE COURT STRIKES IT DOWN.  The SJC for the first time in the history of American Jurisprudence did not strike down what they called an unconstitutional statute.  Thus, under the Constitution, the statute still is the law.  Like it or not.

  • Sean said:  “The problem is that creating some sort of a legislative veto of judicial review just doesn’t make sense.”  Judicial review however is defined as “the right of courts to suspend statues or their enforcement.”  The SJC did not suspend this statute or its enforcement because it did not strike the statute in total or in part which the SJC has stated is its only recourse when it finds a statute to be unconstitutional.  See Peterson v. Commissioner of Revenue, SJC-09362 (April 26, 2005) (”[W]hen a statute is found to be unconstitutional, the Court will either strike the portion of the statute that is unconstitutional, leaving the rest of the statute in tact . . . or if it cannot identify that the Legislature would have intended that the statute be severed, it will strike down the entire statute as unconstitutional.” This was the reformulation of the common law, but it was not “judicial review,” the striking of a statute. Tthe truth is that striking the statute in its entirety would have produced negative consequences that the SJC did not want to create.  Striking down the marriage laws would have ended “marriage” in Massachusetts completely and the blame for such an outrageous circumstance would first have fallen on the SJC and second on same-sex couples.  See Halpern v. Toronto, (City), 172 O.A.C. 276 (2003)

  • Sorry for the multiple posts, but Sean’s claim to be a lawyer and his utter lack of knowledge of the law is astounding and I could not let it stand as some kind of legal authority. I am certain I have violated some rule somewhere and I won’t do it again.  mea culpa, mea culpa, mea culpa (sp?)

  • Sean said:
    it requires us to believe that the SJC entered judgment on a constitutional matter with the intention that it not be implemented without the consent of the legislature.  No court would do that, and it’s clear the SJC didn’t.

    But the SJC has no constitutional authority to tell the legislature what to do.  So if the legislature does not do what the court suggests, then the law has not changed,  . . . separation of powers, logic, and common sense.

    Sean said:
    It is disengenuous to say the the SJC didn’t intend to make homosexual marriage immediately available after the 180 day
    waiting period ended regardless of legislative action.

    The SJC can intend whatever it wants to . . . but unless they have legal authority their intention is as binding as a minor intending to be 21 years old when caught with an illegal license.  Wishful thinking does not make the license any more legal.

    Sean quoted Judge Tauro:
    “[T]the legislature has, in fact, transferred subject matter jurisdiction to the judicial branch in cases involving divorce, alimony, affirmation, and annulment. Implicit in that transfer of jurisdiction to the judicial branch is the transfer of authority to define the term marriage, as that terms appears in the Massachusetts Constitution.” 

    Judge Tauro is wrong (regardless of whether he is biased or just was not presented the proper legal argument by the lawyers or by his law clerks).  He has ignored massive case law that says the SJC cannot interpret words of the Constitution different from what the Framers of the Constitution meant.  “It is a fundamental principle of constitutional construction that every word and phrase in the Constitution was intended and has meaning.  Passing public passions and emotions . . . have little to do with the meaning of the Constitution, as it is written.  Commonwealth v. O’Neal, 369 Mass. 242 (1975) (TAURO, C.J., concurring).  All [the] words [of the Constitution] must be presumed to have been chosen advisedly.” Powers v. Secretary of Administration, 412 Mass. 119 (1992);  Commonwealth v. Bergstrom, 402 Mass. 534, 541 (1988), quoting Mount Washington v. Cook, 288 Mass. 67, 70 (1934).  Its phrases are to be read and construed according to the familiar and approved usage of the language. Yont v. Secretary of the Commonwealth, 275 Mass. 365 (1931).

    The framers of the Constitution are the very same people who drafted the marriage law.  The SJC in Goodridge said that in drafting the marriage law, (using the term “marriage”) the framers DID NOT INTEND TO PERMIT SSM.  “We conclude, as did the judge, that G. L. c. 207 may not be construed to permit same-sex couples to marry.”  The term “marriage,” therefore exists in the statute and does not permit SSM.  It also exists in the Constitution – in the very phrase used by Tauro to justify subject matter jurisdicition.  What does the term marriage mean (i.e., what did the framers intend when they used the term marriage) in the Constitution?  Keep in mind they are the same people who drafted the marriage law that does not permit SSM.  Of course, the term marriage in the Constitution (that Tauro cites) can mean nothing other than what the term marriage meant in the statute.  The term marriage “may not be construed to permit same-sex couples to marry.”

  • Explain to me a legal theory on which it could?  The legal theory cannot be simply because Judge Tauro said it does.  I have seen plenty of judges either not understand the law or outright ignore it to serve a particular end.  I don’t know Judge Tauro’s motives for ignoring the overwhelming case law in this area.  It is brazen and easily accomplished as you said when you have lazy, stupid (or biased) attorneys and judges.

    Sean said:
    In short, the intention of the SJC was that homosexual marriage would be legal in Massachusetts on May 17, 2004 – period. 

    Explain to me, which you have not yet even attempted, what legal authority they have to “intend to change a law” and the constitutional meaning of a word and I will agree with you.  But right now you keep saying . . . it is legal because Judge Tauro did it and the SJC did it.  That is not legal authority.  Period.

    If it is clearly legal what they did, it will be easy to explain the legal authority.  However, your task will not be easy, because they did not have the legal authority to do what they did.  And we have not even discussed the outright ridiculous premise that they relied on (because ultimately it is insignificant) that there is no rational basis to have marriage be between one man and one woman.  They have brazenly taken logic from you.  They have brazenly taken our democracy from you.  And you want to justify it by saying because it was done, therefore it is legal.

    I do not mean to be nasty, but rather to wake people up that there is a big problem and it is far beyond a gay “marriage” issue.  It is outright scary.

  • Sean said:
    yelling bias, and lack of authoity, and unprincipled legal analysis, doesn’t accomplish anything

    Is there a reason you characterize my case citations to SJC legal decisions “unprincipled legal analysis” and have yet to explain their the SJC’s legal authority?  Again, I say, if it is clearly legal what they did, it will be easy for you to explain the legal authority.  They did not have any legal authority nor did Mitt Romney.  As a lawyer, this should frighten you.

    Sean said:
    Our goal should be broader, and frankly loftier.

    Name 1 thing loftier than exposing fraud, exposing the destruction of our democracy, and the violataion of the Constitution by the Governor who is sworn under oath (unless of course the SJC recently has redefined what an oath is) to uphold it?  And please clue us in on a “broader goal” that will restore the foundation of society.

  • So your broader solution is to change the Constitution.  If you think the constituioonal analysis above is insufficient and outdated, what the heck good is changing the constitution going to do?  If we change the Constitution, what happens when they fail to follow that version, change it again?  The Constitution is fine as it is.  We need public servants to uphold their oaths of office.  And if they don’t we need people to do whatever it takes to get ones in there who will.

    Oklahoma is a nice alternative, but I think fighting for democracy is more honorable.  Having conviction rather than running away or being afraid someone will call you outdated?

  • Sean
    The Catholic Church needs to understand the critical importance of upholding our religious freedoms.  That means resisting gay adoptions, but not necessarily by getting out of them.  It is un-democratic and un-American to prevent Catholics from doing (or in the case of abortions and contraceptives to force us to do things) that contradict our faith.  This should be obvious and WE should be tolerated. 

    If we lie down and allow them to run us over by getting out of adoptions, etc.  we are doing a disservice to ourselves, our democracy, and our religious liberties (that are about to disappear).  We need to litigate, vote, amend, be vocal, and be aggressive, or they will take it all away in no time and we will wonder what the hell happened.

    Citizens and lawyers need to understand the critical importance of upholding our democracy.  As a practicing attorney (with a mean backlash to fear from lawyers and judges if I don’t shut up and keep marching), I too am sorely tempted to turn a blind eye to this subversion of constitutional democracy and rule of law—or worse, like others, to cobble together patchwork justifications for why a governor and a high court are steamrollering my constitution.

    But, this attorney is also a father, and this, not “living and breathing” but rather gasping and dying constitution is also my children’s constitution.  It stands between them and tyranny.  And its place of honor in our daily lives will mean the difference between being able to freely practice my faith or to be prevented from doing so.

    Thus, I take umbrage at journalists, lawyers, judges, citizens, bishops, and priests and and their blind taggers-on who—either through dishonesty, intellectual cowardice or raw ignorance of the fundamental aspects of law and constitutions—surrender my children’s democracy along with their own.

    Are the machinations of powerful men and women in smoke-filled rooms laying down the “legality” of a de facto meta-constitution?  Not to worry.  As was said in the Soviet Union, “the streetcars are running, so this must be a normal country.

    I agree that the people’s passion to amend the constitution should be applauded.  I disagree that the Constitution actually needs amending.  All it needs is people who will respect it, follow it, and have the conscience and courage to point out when it has been violated. 

    The word marriage already exists in the Constitution.  That word does not need a definition.  It was defined the moment the framers put it in there.  The word marriage in the statute could not violate the Constitution’s other vague words of due process and equal protection, because the Constitution taken as a whole (reading ALL of its words) could not ever be construed to permit same-sex marriage (see Goodridge) because the Constitution by including the term “marriage” already excludes same-sex marriage.  For that situation to change requires a constitutional amendment.  Not the other way around. 

    We are retreating.  For us to feel we need to amend the constitution fails to recognize the reality of the Constitution’s power, authority, legality, and, therefore,  undermines our democracy.  The founding Fathers would agree that amending the constitution to say exactly what it already says is completely unnecessary and tremendously weak.

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