Among other things, an early topic of discussion for Bauman is the phenomenon of “living together,” a cheap substitute for the more robust connection of “affinity,” which, as he goes on to say, tends toward the solid bonds of kinship. Bauman’s words on cohabitation are utterly incisive:

Living together may mean sharing the boat, the mess-table and the sleeping berths. It may mean sailing together and sharing the joys and hardships of the voyage. But it is not about passing from one shore to another, and so its purpose is not to deputize for the (absent) solid bridges. A log of past adventures may be kept, but there is only a perfunctory mention in it of the itinerary and of the port of destination. The fog covering the other—unknown, unmapped—shore may thin out and blow away, the contours of a port may emerge, a decision to harbour may be taken,  but all this is not, nor is it meant to be, written down in the sailing papers. (Liquid Love, Polity Press, 2003, p. 30)

Last year, I wrote this short indictment of cohabitation from the perspective of common sense. And while I think it still stands, I’ve come to appreciate that the common sense appealed to isn’t all that common, and that Bauman’s insights break open what is truly lacking—and what is truly contemptible—in such an arrangement. The fact is, as Bauman rightly suggests, that “living together” is designed to circumvent stability and permanence insofar as these are merely incidental possibilities in relation to its core. (Quite a far cry from the reasons usually given—e.g., “We just want to see how things work out before making it permanent.”) This makes cohabitation, for the most part, not only disingenuous, but also fundamentally opposed to forming real, intentional marital bonds. (The point is, as Bauman notes, “to walk through the days as if [the difference between progress and a dead end] did not matter, and so in a fashion that makes the issue of ‘what is what’ irrelevant.”)

In the ever more marginalized case that a couple has clear intentions to marry (i.e., has put the process in motion through major commitments), but is simply biding time in the most economical way available, cohabitation still does a disservice to authentic, affinity-based relationships. Apart from the obvious affronts where fornication is involved, the very acceptance of such a murky yet total “sharing”—in the face of the permanence and stability of marriage—can only serve to debase the latter in the eyes of society (which, as we all know, hardly needs another excuse to think less about it). This is evident even on the most basic level; it is also at least partly behind the Church’s insistence that cohabitation before marriage is impermissible (more specifically taught from the standpoint of scandal). Even when “nothing is going on,” future married couples have a serious decision to weigh: short-term convenience versus a long-term difficulty in emphasizing and witnessing to (what might be called) the ‘nuptial moment.’

The loss of affinity, Bauman suggests, leaves us in a tough spot regarding the possibility of kinship.

Lacking stable bridges for inflowing traffic, kinship networks feel frail and threatened. Their boundaries are blurred and disputed, they dissolve in a terrain with no clear-cut property titles and hereditary tenures—a frontier-land; sometimes a battlefield, other times an object of court battles that are no less bitter. Kinship networks cannot be sure of their chances of survival, let alone calculate their life expectations. [...] They are no longer sure of themselves, being instead painfully aware of how fatal for their survival a single false step might be.

[...] So here we are, vacillating and uneasily manoeuvring between the two worlds notoriously distanced from and at odds with each other, yet both desirable and desired—with no clearly plotted passages, let alone beaten tracks between them. (Pp. 30–31)

A very serious situation, according to Bauman, and one that’s tough to debunk. Most importantly, a very good reason to think twice before shacking up.

With this change, the Boy Scouts allow youth of any sexual orientation into their organization, yet clarify that, as an organization built on youth leadership, young men guide themselves in their moral development, with the assistance of the organization. Because their main intention is to teach, however, they cannot take sides in the culture wars. This is to the chagrin of all those on both sides of the gay rights issue who sought to push around the organization. For them, it would be enough that the Boy Scouts of America, as a cardinal establishment of American life for the past century, either endorse the wider movement for gay marriage and gay lifestyles, or to preserve traditional sexual values.

Instead, the Boy Scouts of America took a step back, making sure not to lose the forest for the trees. What must be first involved in any debate over an active gay sexual lifestyle is an examination of a general sexual lifestyle. This is one thing for adult members, who may be married. However, for youth in the Boy Scouts, necessarily unmarried, an active sexual lifestyle isn’t even part of the equation:

“AND WHEREAS, Scouting is a youth program, and any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting;”

This provides insight to those both in favor of and in opposition to an active gay sexual lifestyle. The conversation that should be had about gay and lesbian youths in the Boy Scouts, especially for those who have religious beliefs on the issue, does not even concern homosexual acts.  Does a youth’s mere statement that he is “gay” constitute an immoral act? Yet, for an organization built on pedagogy, this may still be a problem, since the current policy dissuades even such an utterance.

So then what is sexual orientation for youth in the Boy Scouts? If a young man of fifteen tells a person he’s a Major League Baseball MVP, that person would reply that he has longer to go on his journey, and may discover he is to become a businessman, or a lawyer, or work in any number of other professions. Similarly, if a Boy Scout were to claim he is gay, as many of our youths do today, the response should not be one of alienation or affirmation, but one of expectation for their future sexual growth in holistically, healthy moral lifestyles And for those wanting to bring children to a better understanding of the sexual complementariness of men and women, this is the only true option that allows freedom. So the resolution says:

“WHEREAS, youth are still developing, learning about themselves and who they are, developing their sense of right and wrong, and understanding their duty to God to live a moral life”

And, to the dismay of advocates who are looking to use the Boy Scouts of America to preserve or reinforce the active gay sexual lifestyle, they are denied the opportunity. The active gay sexual lifestyle does not exist in the Boy Scouts of America, even as they refuse to bar members due to sexual orientation. Sexual orientation is reconsidered, rather, as a developing and changing aspect of the human being. Youths who call themselves gay or lesbian are not defined, for the rest of their lives, as gays or lesbians, but have opportunity to grow in their moral characters. If the gay lifestyle is defined by living it in full—an active sex life as a gay man or a lesbian woman—then the Boy Scouts, even in allowing members of any sexual orientation to join their organization, are not endorsing the gay lifestyle in America. Nor are they giving a notion that they want to campaign openly against it. In fact, the Boy Scouts of America reminds us that we don’t completely understand the mystery surrounding someone living in flux concerning sexual orientation. At the same time, by preserving their policy on adult leadership they still emphasize the complementary sexual image of man and woman.

The issue is poorly treated in the American political dichotomy that fiercely argues between a liberalization of marriage and a preservation of traditional values, an arena where the focus is placed on campaigning, not understanding. If we are so busy “defending moral values,” we need to not be afraid at stepping back and seeing if such “values” do engage true morals. In the Boy Scouts, the treatment of immoral acts has been taken entirely off of the table; instead what is recognized is an aspect of a young man’s development that must be guided, not banned.

Within the mad political rush we forget very simple things about young men growing up in America and in the Boy Scouts: they aren’t tools for our campaign, and, though we should be mindful of their development to a certain extent, we must let them strengthen themselves within the moral challenges of their generation. They must develop their own cultures in a world where culture itself, reduced by a vicious culture war, has ceased to exist as a viable and understandable force.

For all of my life, even as a Boy Scout and Eagle Scout, I grew up hearing from my parents’ generation that “they had it easier” and that “we have it harder” when it comes to temptation and moral growth. The difference between our generations is one of globalization, where things like Facebook cause us to realize that we live in a world where we are surrounded by people we disagree with. However, Boy Scouts isn’t meant to be sheltered from such globalization, but should be a place where young men can learn to be leaders and culture builders despite moral challenges. I, as a Senior Patrol Leader, a youth leadership position, led a group of wayward, varied, and sometimes annoying young men to advance in learning. Now I, as a friend and a potential father, find myself called daily to lead others of even wider differences, not the least of which is that of sexual orientation. For a Boy Scout to develop into a steady moral man, and to flourish as an Eagle Scout, he should be given such an opportunity to learn. To bar him from membership would contradict such pedagogy.

So the Boy Scouts should make us look foolish. For when we encounter a youth who says he is gay, we should not react by banning him. We also shouldn’t react by crowning him king of the next generation. Rather, we should address him as we have addressed every generation as they have encountered their challenges: “Continue to grow, learn, and discover the true, good, and beautiful.”

Recently, John Zmirak brought the question to a head, arguing that Gosnell deserved a death sentence as a matter of justice. A month earlier, Princeton’s Robert George had published a piece calling for a merciful response to Gosnell’s horrendous deeds. Here at Ethika Politika, Andrew M. Haines and Aaron Taylor have added their reasonable voices to the discussion, one about which many Catholics faithful to the Magisterium disagree.

There is room for such disagreement because capital punishment is not, and never has been (contrary to what you may hear during presidential election seasons), considered an intrinsic evil morally equivalent to other life issues such as abortion or euthanasia. The Church allows that capital punishment is permissible and necessary in certain instances; hence the pertinent questions of whether or when such conditions obtain in the developed countries today.

I was thinking about the Gosnell debate as I walked to Mass yesterday morning at the beautiful Basilica of the Sacred Heart at Notre Dame, where I cracked open the Liturgy of the Hours to pray morning prayer. The opening stanza of Psalm 51 struck me in an Augustine-esque way (if that’s not presumptuous):

“Have mercy on me, God, in your kindness.

In your compassion blot out my offenses.

O wash me more and more from my guilt

And cleanse me from my sin.”

Such beautiful lines from the psalmist, a sinner who knows that he is entirely dependent upon God’s mercy and kindness for redemption. As I read these words, a number of other passages flooded my mind, and together imprinted in me a quiet if forceful impression of how I felt about Gosnell’s fate.

The first passage that came to mind was the story of the woman caught in adultery – a crime that merited capital punishment under Mosaic law – from the beginning of Chapter 8 of John’s Gospel:

Early in the morning he arrived again in the temple area, and all the people started coming to him, and he sat down and taught them. Then the scribes and the Pharisees brought a woman who had been caught in adultery and made her stand in the middle. They said to him, “Teacher, this woman was caught in the very act of committing adultery. Now in the law, Moses commanded us to stone such women. So what do you say?” They said this to test him, so that they could have some charge to bring against him. Jesus bent down and began to write on the ground with his finger. But when they continued asking him, he straightened up and said to them, “Let the one among you who is without sin be the first to throw a stone at her.” Again he bent down and wrote on the ground. And in response, they went away one by one, beginning with the elders. So he was left alone with the woman before him.

It’s anyone’s guess what Christ was writing in the ground. Some scripture scholars have suggested that he was enumerating the sins of the members of the crowd, the oldest (and therefore most self-aware of their sinfulness?) of whom were the first to depart and let He who was spotless remain the Lord and giver of life.

Nobody seriously invested in the Gosnell/capital punishment debate needs to be patronized with platitudes about removing the beam from our eyes first. Still, the story of the adulterous woman makes you wonder what Christ would have done if John Zmirak had thrown Gosnell on the ground before Him.

The second scriptural passage that came to mind was the “choose life” passage from Chapter 30 of Deuteronomy:

I call heaven and earth today to witness against you: I have set before you life and death, the blessing and the curse. Choose life, then, that you and your descendants may live, by loving the LORD, your God, heeding his voice, and holding fast to him.

How often, when this reading is read at Mass or cited on pro-life websites or at pro-life rallies, have pro-lifers thrilled, if only internally, at hearing what seems like such an obvious pro-life message proclaimed even in the Old Testament! Yet how often do we associate this passage with anything other than the anti-abortion cause, comprising only one (albeit the most important) facet of the pro-life movement?

It seems to me that perhaps pregnant mothers are not the only ones who could benefit from reflecting on this passage.

Finally, an exchange from CS Lewis’s beautiful reworking of the classical myth of Cupid and Psyche, Till We Have Faces, came to my mind (where it enjoys many extended stays and visits; I think it one of the more simply delivered profound theological truths available in popular literature).

In Till We Have Faces, the protagonist, a willful and troubled (and homely, to be charitable) woman named Orual, has waged a war against the gods since an experience in her youth left her questioning the goodness of the gods themselves. As a girl, the princess Orual was tutored by a Greek slave captured by her father in battle. The Fox, as Orual affectionately dubs her philosophical teacher, and Orual share an exchange near book’s end – I shan’t spoil the plot – when the Fox is escorting Orual in through a vision.

“My judges?” Orual asks.

“Why, yes, child,” the Fox replies. “The gods have been accused by you. Now’s their turn.”

“I cannot hope for mercy.”

“Infinite hopes – and fears – may both be yours. Be sure that, whatever else you get, you will not get justice.”

“Are the gods not just?””

“Oh no, child. What would become of us if they were? But come and see.”

How many people have struggled to understand how God is both fully just and fully merciful (even after studying their Aquinas), only God knows. But these lines struck me instantly and have constantly haunted me when I appropriate for myself the role of moral judge.

As Christians, we know that, in strict justice, we deserve damnation. It is neither our due nor our right to enjoy beatitude with the Godhead for eternity, an enjoyment made possible for us only through God’s literal condescension.

Kermit Gosnell has done terrible things. It’s hard to envision someone with less regard for the dignity and sanctity of human life short of history’s classical villains, the eternal fate of whose souls, by the way, we can in no way pretend to know. But, as Professor George put well, the problem with considering Gosnell, who really has shown no signs of remorse at all, as beyond conversion of heart, is that we ourselves are damned by that same logic. Let we who are without sin be the first to proclaim him irredeemable. Let us pray for Kermit Gosnell.

I will never forget the sadness I felt when, during my freshman year at Notre Dame, students across campus practically rioted in triumphant joy when the news of Osama bin Laden’s death was made public. As much as anyone, I was happy that a dangerous and hateful man would kill no more. But the jubilation and exultation in a child of God’s death seemed vindictive, spiteful, or both, and neither emotion should accompany the death even of evil men.

I am far from qualified to venture an opinion on whether social justice or Catholic teaching demands Gosnell’s execution, or anyone else’s in this day and age. But as a Christian, I am glad to make the understatement of creation – the gods aren’t just. What would become of us if they were? Rather than serving justice by playing the role of the hangman, Christ epitomized misericordia – which Aquinas considered the most God-like of the virtues – while playing the hanged. If justice really demanded the hangman, we’d all lose much more than our earthly lives.

These thoughts do not constitute an argument against capital punishment either per se or with respect to public policy or individual cases. I’m fully familiar with what the Church documents and Tradition have to say about the legitimacy of capital punishment. Then again, what the Church says about capital punishment is not really in question so much as how the teaching ought to be implicated and applied in civil societies. Nor are these thoughts meant primarily as a critique of Zmirak’s perspective.

Rather, these are reflections on what seem to me to be the deeper currents running beneath the back-and-forth about the status of this teaching in the Magisterium, the questions of the conditions under which capital punishment is permissible today or the relationship between justice, mercy and clemency. Beneath all of this, and possibly responsible for one’s own application of the Church’s teachings, is a fundamental disposition towards our immortal souls vis-à-vis God’s love for us.

“Some people think it renders our witness for the sanctity of innocent life more credible when we extend it even further to cover the guilty. I disagree,” Zmirak argues.

Regardless of the merits – and there are many – of Zmirak’s argument, it’s a good thing for us, the best thing – the Good News – that God doesn’t feel the same way. It’s good for us that God doesn’t administer the death penalty on our souls. Let’s not be the forgiven servant who turns and demands a much smaller sum from his fellow servant. If God can hold out to us the communion of life eternal when strict justice dictates otherwise, perhaps we can find it in ourselves to drop our stones and go and do likewise.

My aim, here, is not to overshadow either of these positions—each of which I take to warrant further scrutiny on its own merits. Instead, I offer another, very brief perspective that may prove helpful in digesting the topic of capital punishment vis-à-vis Catholic social thought, more broadly speaking.

Quite simply, it’s this: that the notion of justice—or any virtue, for that matter—is greatly affected by the context in which it is given. This is especially true when we’re speaking about virtues practiced on a public level. While natural goods are, conceivably, available to any person, it’s only on the basis of some common principle of organization or authority that such goods are available to society, at large. (Society is, after all, a group of people.) Moreover, the quality of this common principle affects the degree to which such natural goods—and many other things—can be understood and secured.

Concerning capital punishment, and Zmirak’s endorsement in particular, I’m inclined to sympathize that justice demands commensurate punishment; also, I agree that the desire for mercy should not “short-circuit the natural virtues in pursuit of the supernatural.” On the other hand, such an ordering seems to demand a higher arrangement that prioritizes authentic justice in all situations—an arrangement that would likely entail “something more.” Put differently, it’s hard to imagine that opting for death as a necessary feature of justice (if only in a handful of situations) would do much good in pointing us toward supernatural virtues if they were not already something desirable. For this reason, I don’t find it very hard to appreciate the historical fact that Pope Pius X employed a papal executioner, or that the death penalty was only removed from Vatican law in 1969. However, I think there’s a big gap between the Papal States and Western liberal democracy, and it can’t be overlooked.

While there’s no simple answer to the question, “Should we use the death penalty,” my strong sense is that our chances of a meaningful answer lie much less with rehabilitating a social order grounded on hopes for mere security and stability, and much more with re-envisioning the state and its duties as but one side of an authoritative coin.

First, Professor Robert George issued a plea for mercy. Ashley McGuire seconded this, arguing that pro-lifers “must stay focused on saving babies, not on killing their killers.” Calling for Gosnell’s execution, McGuire argued, simply perpetuates the culture of death. John Zmirak then disagreed with both George and McGuire, arguing that sparing a murderer the death penalty “shows profound disrespect to his victims.”

Given that all participants in the debate seem to be Catholic, it might be instructive to look at what the Catechism says about capital punishment:

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.

I’d like to ruminate a little on what precisely the Catechism means when it says that authorities should limit themselves to non-lethal forms of punishment if these “are sufficient to defend and protect people’s safety.”

Pro-life Catholics who oppose the death penalty generally take an extremely narrow view of what this means. Professor George, for example, has argued that “the state does not have the right to inflict capital punishment—no matter how grave the offense and no matter how clear the guilt of the accused—unless effective incarceration is impossible and execution is the only way to prevent this particular murderer from killing again.”

But it is not clear that this is the only possible way of framing the question. The decision of whether to impose the death penalty is not simply at the discretion of a trial judge who is dealing with the case of “this particular murderer.” Legislators will have already specified the offenses that may merit capital punishment, and will usually provide judges with further guidance such as identifying “aggravating factors” (for example, multiple killings) that invite a capital sentence. Whether the death penalty is imposed is conditioned to a large extent by the legislature. The role of the judge is simply to apply the law in a particular case. Even the Supreme Court’s decision in Gregg v. Georgia (1976) that ruled mandatory capital punishment as unconstitutional does not leave sentencing simply for judges to decide. The Court upheld sentencing guidelines for capital punishment in Georgia that were wholly pre-determined by the state legislature. It goes without saying that strict guidance from legislators is necessary to avoid arbitrary sentencing by judges; this guidance largely determines how the death penalty operates.

Lawmakers cannot deal with the question of whether to execute this murderer, but only of whether to execute murderers in general. In making a judgment as to whether the death penalty is necessary for the protection of public safety, legislators have to consider more than merely the question of whether “effective incarceration” is theoretically possible. The fact that it is possible not to execute killers doesn’t establish that that it is morally obligatory to do so, particularly when there are arguments to suggest that the overall result of abolishing capital punishment (rather than the result of merely commuting sentence in a particular case) would be to place public safety in jeopardy.

When Demetry Smirnov killed his ex-girlfriend in Illinois in 2011, prosecutors discovered that he had researched the law on the internet to discover if the state had the death penalty before going ahead with the killing. It is reasonable to assume that if Illinois had not just abolished it, she might be alive today.

It has also been pointed out that, where the death penalty is abolished and life sentences remain for rape, rapists may be more likely to kill their victims in order to prevent them testifying, since the sentence in either case will be identical. The only way to prevent the incentivization of murder is, therefore, to lower the sentences required for a range of other crimes. But these lower sentences simply make those lesser crimes more likely to be committed, and so on. Abolition has a cascade effect down through the criminal justice system that potentially places public welfare at risk. One only needs to look across the Atlantic at Britain, which, within a few decades of abolishing capital punishment, has gone from having one of the most rigorous sentencing systems in the West to one of the most lenient, leading to frequent and widely-supported calls among the general public for the reintroduction of hanging.

Even when abolition is accompanied with mandatory life sentencing for killers, there is no guarantee that future legislators, judges, state governors, and prison officials will honor this. In 1966 Kenneth McDuff was sentenced to death for the killing of two teenage boys and the brutal rape and murder of their female companion. When the Supreme Court ruled the death penalty unconstitutional in Furman v. Georgia (1972), his sentence was commuted to life imprisonment. Under pressure of serious overcrowding in Texas prisons, he was released in 1989. Within three days he had killed again, and over the next three years would go on to kill at least five more women before finally being apprehended. Countless other examples can be cited of killers who have been released or escaped and have gone on to kill again, or who have killed again in prison. Whether or not the death penalty is required as a matter of strict retributive justice, it is morally repugnant for the state to privilege the safety of a violent criminal over the safety of an entire population.

It often happens that those who spend their lives fighting for a particular cause can—particularly when it is as crucial as the pro-life cause—become blinded to other values which are of equal or greater importance. Fighting to ensure due respect for the sanctity of life should not lead us to canonize human life as the ultimate moral value, as if the final destiny of the human person was simply to go on existing without reference to any further end or purpose. Even when considered in purely this-worldly terms, social order is clearly a higher good than human life. Without social order a genuinely human life is impossible, since humans are by nature social animals.

Whether the death penalty is required to maintain social order in a particular country, at a particular time in history, is a prudential judgment upon which reasonable people will disagree. I am not arguing that criminals must be executed as a matter of retributive justice. Nor am I necessarily calling for the death penalty to be reintroduced in places where it has been abolished. Neither am I calling for Kermit Gosnell to be executed (the deal struck in his case seems perfectly reasonable). But, given that it is not inherently unjust to execute a murderer, legislators and judges should err on the side of protecting public safety, a task that is infinitely more complex than asking the simple question of whether we have enough prison places. To fail to execute offenders where it would genuinely protect the commonwealth would be a dereliction of duty on the part of the state. As Archbishop Fulton Sheen once said, “the refusal to impose just punishment is not mercy but cowardice.”

The most recent proponents of marriage redefinition seek to change the meaning of marriage – so as to justify the recognition of a female-female relationship as marriage, for example – without asking the larger questions about the nature of marriage itself, and the government’s reasons for getting involved with the institution. Such proponents can’t see the marital forest for their progressive trees.

What, then, is marriage? Begin by considering what it can’t be, what elements are insufficient to define marriage. Marriage can’t possibly be “a relationship formed by people who love each other” – my siblings and I aren’t married. Marriage can’t be “a union of people who pledge to pool their resources, time and charity to each other” – the priests of Holy Cross, living in community at Moreau Seminary here on Notre Dame’s campus, are clearly not married. Marriage can’t be “the union of people who love each other and are sexually active with each other” – many who fit this description are clearly not married (such as college students who conscientiously put off marriage until “they’re ready”), and couples who fit this description are often unmarried or even sometimes married to different persons (as in the case of adulterous affairs).

In pinpointing marriage’s definition, or at least in laying bare the logical inconsistency of its common uses, attention to the usus loquentium yields telling results. Aristotle and Aquinas held that the usus loquentium, the way people actually use words, was a foundational point of departure for philosophical inquiry because it reveals how people really think about things. In regards to this issue, many SSM advocates think of a particular relationship that they think should qualify as marriage (two sexually, volitionally and emotionally involved members of the same sex) and extract a marriage definition from that case-in-mind. They use the word “marriage” to describe such relationships without realizing the inconsistencies of their usus loquentium.

The problem with such a strategy is that it does not represent how the typical SSM proponent truly thinks, because his definition corresponds not to considerations of the essential qualities of marriage, but to accidental qualities derived from a consideration of particular relationships. He derives a broad relational definition from a single type of relationship, rather than judging separate relationships (and the justice of a differentiation in law between those relationships) according to a fixed definition. Folks who maintain that any people who love each other and are mutually committed (in any number of ways) have a right to marriage don’t actually believe their own argument. They may adhere to such a definition when they have Jane and Jill in mind, and such a definition certainly entitles Jane and Jill to demand a marriage license; but they don’t have Jane, Jill and Janet in mind, even though such definitions also entitle these three. Such a definition qualifies as true marriages a number of other relationships that this SSM advocate would certainly not want to recognize as marriage. In this sense, many attempted definitions of marriage offered by SSM advocates are speciously arbitrary. Few who proclaim “marriage equality” are truly for it. Almost everyone who is “for marriage equality” only endorses the right of two people, or currently unmarried people, or non-related people, or sexually involved people, or people of a certain age, to get married; proponents of “marriage equality” are, by their own definitions, often proponents of unjust marriage discrimination.

The government is not interested in recognizing, regulating, and promoting certain interpersonal relationships based only on their sexual, romantic, or charitable quality. The government clearly has no such interest, as can be evidenced by the fact that it does not recognize as marriage many relationships that actually fall under the penumbral definition of loving, stable relationships, such as cohabiting widows, heterosexual bachelor housemates, “friends with benefits” and so forth.

Appeals to “love” as the basis of marriage policy are off-base. If “love” (and I don’t use quotations to denigrate the legitimate charity shared between any given couple; I use them to suggest that such a term would defy all attempts at concrete qualification or categorization that the government could employ in order to affirm its existence) were the legal basis for marriage recognition, the government would have absolutely zero ground on which to deny a marriage license to anybody who asked for one, regardless of the structure or nature of one’s relationship; marriage would be Play-Doh in the hands of the people.

The most scrupulous proponents of the most recent push to redefine marriage offer this definition: “marriage is formed by two people who commit to an exclusive, permanent and faithful interpersonal union.” There are two glaring problems with this definition, considered as it commonly is, as the definition under which no relevant differences between conjugal marriage – defined by George et al (with my emphasis) as “a comprehensive union of two sexually complementary persons who seal (consummate or complete) their relationship by the generative act” – and non-gendered marriage can be discerned or upheld by law.

The first is that it is very difficult to see how this definition can justify the exclusion of polyamorous couples who desire to unite their lives  in just the same way. What non-unjustly-discriminatory principle can justify defining marriage as a relationship between two people, rather than more or less than two (so long as the individuals involved share the aforementioned commitments), if the role of sexuality in marriage is one merely of pleasure and not of something more? Yet few (but not all) proponents of SSM are comfortable defining marriage as a union of three or more people.

The second and more potent problem with such a definition is this: It is abundantly clear that the government has no interest in formally recognizing such relationships. Prior to clamoring for “marriage rights,” SSM proponents should ask themselves: Why would the state be obligated to legally recognize and publicly affirm a very specific type of relationship when it doesn’t do this for most other types of relationships? Why do we even speak of marriage licenses at all, rather than friendship licenses, neighbor licenses, romantic couple licenses, coworker licenses or cohabitation licenses (such as one that college roommates or professional athletes staying at a hotel for an away game would possess)? The marriage debate is, or at least should be, about what marriage is and why the government cares about it, not about the personal or moral status of individuals who want their romantic-sexual relationships publically and legally acknowledged and blessed by Uncle Sam.

The government recognizes marriage – and has attached over 1,100 financial and legal benefits to it – because marriages involve and advance a very societally and culturally salient interest in a unique and uniquely important way: the procreation and rearing of good citizens in an optimal setting. This is a chief reason the government is in the “marriage business” at all; the government wants to publicly promote and incentivize this pre-political, human institution, and not others, because the government has long known and legally acknowledged that as the family goes, so goes the nation. The nuclear family is the building block of society, and the government knows this. This is why the 1996 Defense of Marriage Act, in section 3, defines marriage as “a legal union between one man and one woman as husband and wife” and a spouse as “a person of the opposite sex who is a husband or a wife.”

Let me make clear that ensuring an optimal living environment for children is not the government’s primary reason for recognizing conjugal marriage through policy, as if the state’s rationale in promoting some relationships to the status of legal marriage were only a consideration of the best living environments. The state doesn’t recognize or promote some “types” of relationships as marriages on the basis of their demonstrated capacity to raise successful children. Were that the case, then any alliance demonstrated to be optimally or excellently equipped to raise children well would deserve recognition and promotion to married status.

But this isn’t the case. Even if cohabiting widows, for example, were proved by social science to be best at raising children, it wouldn’t follow that these widows were married to each other, or that they have a right to consider themselves married, or that they have a right to marriage recognition by the government, or that their relationship can even be a marital one. Rather, marriage is a pre-politically-recognized institution that the state has historically chosen (and ought) to publicly recognize for reasons including the “optimal setting” reality.

Indeed, the Supreme Court has affirmed the legal impetus – an intrinsic connection between marriage and procreation –for enshrining conjugal marriages in the law numerous times. Just a handful of many similar statements from the Supreme Court, as mentioned in the terrific pro-marriage work by the fellows over at Princeton, illustrate this point nicely. Let those who think the marriage/procreation connection was a desperate last-stand argument dreamed up by panicking conservatives in recent decades take note of these legal, historical affirmations of that principle:

“Marriage is the foundation of the family and of society, without which there would be neither civilization nor progress.”

“Virtually every Supreme court case recognizing as fundamental the right to marry indicates as the basis for the conclusion the institution’s inextricable link to procreation.”

“The first purpose of matrimony, by the laws of nature and society, is procreation.”

“One of the two principal ends of marriage” is “the procreation of children under the shield of the law.”

“Marriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.”

It is for these reasons – an acknowledgment of and respect for the pre-political institution of marriage, which is by its nature oriented toward and fulfilled by child bearing and rearing and an interest in promoting and protecting this cornerstone of culture as a matter of serving the public and common good  – and not questions of the quality, however measured, of same sex relationships, that the government has a vested public interest in retaining in its legal understanding of marriage the biological reality of sexual complementarity.

Some SSM advocates argue that since studies have shown that married individuals are happier than non-married individuals, more people should be allowed to get married. Such studies are certainly a reason for affirming a sound marriage policy and a sound marriage culture. But they are not and should not be a reason for “expanding the marriage pool” so that more people can be happier and the government can benefit from a more productive citizenry. The “broaden the marriage pool” argument fails in part because eradicating the norm of sexual complementarity from the public understanding of marriage will undermine and detract from the very purpose for which the state legally recognizes marriage in the first place (as the Supreme Court quotes above display), and will furthermore undermine other marital norms already badly damaged.

Why? The norms that govern any relationship or institution serve to make more achievable the goods that are realized through the coordinated activities of the members of that relationship or institution. Relational norms, including marital norms, are intelligible vis-à-vis relational goods, since norms correspond to and serve the able pursuit and attainment of those goods.  The norms (rules, practices or operative principles) that structure the activities in pursuit of some goods shared by, say, roommates (amiability and camaraderie), teammates (victory) or coworkers (efficiency) exist for the sake of those goods. So too, marital norms (monogamy, exclusivity and permanence) support and make most possible the full living out of a couple’s coordinated activities in pursuit of the shared goods that constitute a marriage, including the essential good of procreation.

So, the gendered reality of marriage is not the only facet of marriage at stake. It would be naive for anyone invested in the marriage debate to dismiss the vocal SSM advocates who have articulated a desire to abolish not just the gendered reality of marriage but the other marital norms as well. A particularly striking, but not at all uncommon, version of this argument is made by a fellow Notre Dame student in his recent Letter to the Editor published in the campus newspaper the Observer. “I would just love to see the broken institution of ‘traditional marriage’ suffer a hard uppercut to the face,” this fellow concludes – and he believes same-sex marriage to be the fighter capable of delivering such a blow. Whether or not all or even most proponents of SSM share this sentiment is not a relevant question. What is relevant is whether enshrining SSM in federal law, and thus further embedding it in our cultural understanding of marriage, will in fact be an “uppercut to the face” of conjugal marriage and undermine the norms of exclusivity, permanence and monogamy that most SSM advocates rightfully cherish. I agree with those many SSM proponents who see that it will be.

In marriage, two people unite their lives in shared activity in pursuit of goods that they cannot attain as individuals – these goods include the procreation and raising of children, two of the primary reasons the state is involved in marriage in the first place. Notice that such a good cannot be attained by two members of the same sex; and such a good is exactly what the government wants to affirm and support through marriage policy. So the government’s interest in marriage is not served by the affirmation of same sex relationships as marriages.

Does the conjugal view of marriage seem idealized to many, even most? Certainly. Do many modern Americans actually understand marriage this way? Certainly not.  And yet the further we’ve strayed as a society from the conjugal understanding of marriage, the worse off marriage is, unarguably so, as divorce rates and other harrowing statistics describe. Unpersuasive is the argument that “we don’t really think of marriage this way anymore” and should consequently reject rather than revert to this understanding. The “way we think about marriage” nowadays hasn’t borne much fruit for the generations living in the wake of the sexual revolution.

In summary, the state has no public interest in promoting just any sort of pledged, mutually enriching relationship (think of the Holy Cross priests), or sexual relationships (such as polyamorous ones) or environments in which children are raised well through committed, loving adults (a community of religious sisters operating an orphanage) through its marriage policy. Other policies or exemptions may exist for these relationships or institutions, but nobody considers them marriages; indeed some are closer to monasteries. Marriage policy exists to bind parents to their children within the stability of the family; to encourage the lifelong and exclusive binding of father and mother together in commitment to not only themselves but to the fruit of their union – the future citizens of our nation. While data on the effects of same-sex parenting are generally considered, even by SSM proponents, as non-reliable at this point, empirical research over and over again has shown that children fare best across the spectrum of well-being when they are raised by their biological parents in an intact home environment.

The state has an interest in recognizing, not obscuring, the intrinsic nature and goods of marriage. The state has an interest in promoting the marriage culture, instead of distilling or distorting it any further than it already has through a variety of legal and cultural degradations. Law makes normative and powerfully shapes belief and morals; belief and morals guide and inform actions; and the collective actions of the nation’s citizens create, constitute and cultivate culture, including marriage culture. Public policy will play a powerful part in determining the future of marriage.

Demanding that public policy recognize as marriages any relationships that do not and cannot, whatever their merits, moral fabric, social value or personal meaningfulness, contribute to the ends for which government has acknowledged and affirmed marriage through public policy in the first place, is a bad idea. Both the intrinsic goods of marriage and the pursuit of the cultural, societal and individual goods that marriage policy promotes are undermined by any attempts to strike the intrinsic connection between parents and procreation from the books – which is exactly what is happening now.

On the other hand, you might have heard recently about things like the collapse of an industrial building in Savar, Bangladesh—home to five garment factories—where the death toll recently topped one thousand.

I say “on the other hand” since the any-job-is-better-than-no-job argument (AJBNJ) works well, until it doesn’t.

As you’d expect, I have no idea why the factory in Savar collapsed; I also don’t know why it was occupied that particular day. There could be many explanations. Among them, no doubt, is the distinct possibility (one being reported) that known structural flaws precipitated the collapse, but that factory owners felt the need to disregard them in the name of higher production. This might also not be the case. Who knows?

The contrast, however, between the market ideal in question and the commercial reality is sharp. I’m not arguing—at least here—that there’s a clear causal relationship (e.g., if profit-seekers pursue a market ideal then the conditions for workers grow actually worse). I’m willing to bet that readers will be divided almost 50/50 on whether that’s the case. (After all, free markets don’t require a lack of safety—and in fact would ideally work to guarantee their own survival—but the way such markets are sometimes pursued in extreme real-world conditions doesn’t seem to show much concern for it; etc.)

The point, here, is simply that AJBNJ suffers a huge blind spot when it comes to connecting “better” economics with “better” humanity.

One obvious rule breaker for AJBNJ—or at least an unspoken restrictive condition—is that some jobs don’t fit the scope of reasonability. I don’t think I’ve ever heard the case made that, if it were in demand, creating lots of low-wage brothels would be better than the alternative. (Some might think that—and clearly such markets do exist to varying degrees—but I’m at least not in conversation with any such proponents.) There’s an assumption, for the most part, that the AJBNJ argument works best if we’re talking about run-of-the-mill production of goods (both figuratively and literally). Services, especially controversial ones, not so much.

The exemption of certain types of jobs provides a flag for why AJBNJ isn’t very cogent. Proponents remind us that just because jobs exist doesn’t mean anyone has to take them; but if they are taken, it’s assumed that the risks and rewards have been weighed and that the decision is rational. Something about mass prostitution isn’t rational, though—and presumably for reasons other than its clear, long-term unsustainability (otherwise, the same hesitation would probably have to apply to the mass production of plastic trinkets). Built into AJBNJ is a recognition that, in reality, “better” for people includes something more than calculated economic risks and rewards. It might be a subtle concession—and maybe not a universal one—but it’s there.

What the sad case of Savar, Bangladesh suggests, I think, is that the positive rationality criterion of AJBNJ is far less comprehensive than most advocates would admit. In other words, in retrospect, that so many people would have chosen rationally to abide in conditions on the verge of collapse is incredibly unlikely. Again—and I need to be clear—we don’t know whether that was obvious, or to whom. But AJBNJ also doesn’t seem to care one way or the other: in such a case, rationality is restricted to only the information required to weigh immediate costs and benefits. Never mind if some workers might have had a foreboding about dilapidating conditions, or would have felt coerced to continue despite an awareness that proper safety wasn’t a primary concern. (Never mind, all the same, if workers were intentionally deluded or kept in the dark concerning the value of their work with respect to total company profits.) In AJBNJ, rationality is much simpler. Moreover, while AJBNJ might admit in practice of additional complexities that it can’t account for, in theory it doesn’t.

Of course, maybe everything was just fine in Savar up until the point of impact, and maybe everyone at work that day was there on the basis of entirely rational calculations. My point is simply that we can’t know that, and that AJBNJ offers no convincing evidence that we could.

That was maybe the only refreshing thing about the piece. The writer (“M.S.”) goes on to reassure  conservative readers that although institutionalizing same-sex unions leads logically to polygamy, it won’t lead to a polygamous society in practice because historically monogamous societies have proven to out-compete polygamous ones.

Excuse me for not being comforted. If there’s an unbending law of economics preventing a people from adopting uncompetitive family institutional forms, a few societies apparently missed the memo. The ash heap of history is littered with vigorous civilizations that traded away their cultural capital for a mess of hedonistic porridge, gradually declined, and finally were overrun.

There’s another problem with the piece. M.S. tries to draw a consequentialist line between polygamy and same-sex unions by saying that polygamy is clearly bad for civilizational business, while same-sex unions fit nicely under the two-person umbrella of monogamy. But does anyone seriously think the strength of a nation can be found in a proliferation of same-sex partnerships, even if a sprinkling of these achieve a brave new fertility through in vitro fertilization?

The data isn’t complicated on the importance of intact traditional families to human flourishing. Education researcher William Jeynes’ summary of the accumulated findings offers a good thumbnail sketch of the state of the evidence. The California State University professor described the data connecting economic prosperity and the traditional two-biological-parent family as “immense,” and after reviewing several lines of evidence, explained that “the juxtaposition of these statistics with other facts indicates some of the reasons why there is such a strong relationship between marriage and economic growth.”

The plain reality is that nothing has proven as effective for raising up men and women equipped to compete in and contribute to society than the traditional, intact, monogamous family.

The final thing that struck me about The Economist piece was its innocence of natural law. Think about ancient Athens, arguably the pinnacle of ancient Western intellectual culture, and a thoroughly pagan society. Athens displayed an openness to erotic man-boy relationships that would rightly scandalize most of today’s same-sex marriage advocates. But that shockingly open society didn’t try to redefine marriage.

Instead, they apparently recognized, if only tacitly, that the institution of marriage is older than the state and has a reality apart from any word games somebody might wish to play with it. In other words, redefining a same-sex union as marriage doesn’t make it so, any more than declaring a circle a square gives it four sides. (The Athenians were good enough at philosophy and geometry to get this.) True, Athenian democracy was totalitarian enough to execute an innocent Socrates, but even they apparently understood that the state has to recognize certain limits.

So if you’re concerned about tax fairness toward same-sex couples, push our political leaders to streamline the tax code. If you’re concerned about the feelings of a gay friend or neighbor, buy him a latte and assure him that Jesus loves him as much as all the other sinners in the world (7 billion and counting). But don’t jump on the bandwagon of redefining the pre-political reality that is marriage, an institution firmly grounded in the natural order. Aiding and abetting a life of illusion is not compassion. And granting the state the power to redefine concepts older than the state is no sustainable formula for either justice or liberty.

[Jonathan Witt, Ph.D., is a research fellow with the Acton Institute and co-author of A Meaningful World (IVP). He has scripted three documentaries that have appeared on PBS, including The Call of the Entrepreneur and The Birth of Freedom, and three DVD curricula—two available from Zondervan and the recently released PovertyCure DVD Series.]

A letter Pope Francis sent to the bishops of Argentina in late March is encouraging pro-life advocates because it says pro-abortion politicians should not be eligible for communion in the Catholic Church.

Simple, straight-forward, and possibly game changing. (Certainly more than most lackey American bishops are doing.) Incidentally, this is also the snippet that appears when LifeNews’s article is linked via social media. As expected, the story is prompting much resentment toward the popular media for its failure to cover the story—not to mention harsh rebuke directed at local bishops for not ordering the letter to be read in their own dioceses.

What LifeNews doesn’t offer is a link to the letter. (Here it is.) They also don’t mention that the letter includes nothing specific about abortion, communion, or politicians. What the pope’s letter does reference is the 2007 Aparecida Document (English translation here) that “states, in part,”

[people] cannot receive Holy Communion and at the same time act with deeds or words against the commandments, particularly when abortion, euthanasia, and other grave crimes against life and family are encouraged. This responsibility weighs particularly over legislators, heads of governments, and health professionals.

To state “in part,” though—to use LifeNews’s language—deserves a bit more context: the line above occurs in paragraph 436 of the 554 Aparecida Document—hardly with much prominence (and, I would argue, without much strong language of a relevant juridical nature). “A letter Pope Francis sent [...] says pro-abortion politicians should not be eligible for communion in the Catholic Church.” More than a bit of a stretch.

And all this from a “responsible” source of Catholic news with (they tell us) over 500,000 readers—one that aims to reject popular media bias on things like the Gosnell trial, but is more than happy to stoke the fires of blissful ignorance when it comes to “pro-life” spin (actions that are roughly the right-wing equivalent of HuffPo Catholic reactionism.) In a word, arming advocates of truth and justice with just enough information to rile them up, knowingly omitting the full story, and sending them on their (now probably less) merry way.

If there’s one thing Pope Francis wouldn’t want, I think it’s clear from his character and actions, it is that he would be intentionally misrepresented—especially in a way that would lead to divisions among the faithful and uninformed criticism of pastors.

Another paragraph from the Aparecida Document is worth noting, here (namely number 38):

[W]e must admit that [our] precious tradition is beginning to erode. Most of the mass media now present us with new, attractive, fantasy-filled images, which, although everyone knows that they cannot show the unifying meaning of all aspects of reality, at least offer the consolation of being transmitted in real time, live and direct, and with up to date information. Far from filling the void produced in our consciousness by the lack of a unifying sense of life, the information transmitted by the media often only distracts us. Lack of information is only remedied with more information, reinforcing the anxiety of those who feel that they are in an opaque world that they do not understand.

LifeNews’s article, like so much else, hardly avoids this breach between the transmission of information and true education. What’s more, the bishops—who are indeed to be commended for their position on “eucharistic coherence”—remind us that such dishonest behavior reinforces anxiety, and leads to the very sort of intellectual dissonance that underlies so much social ill (like, for example, the shortsighted and pragmatic politics of abortion).

As it happens, Pope Francis hasn’t written the Argentine bishops to refuse communion for pro-abortion politicians. But he has taken measures to ensure that his own actions don’t contradict that practice. In doing so, he has made careful, prudential decisions about the exercise of his ministry that lead not only to stricter adherence to certain neglected teachings of the Church, but also to a clarification of the “unifying sense of life” that must, and always has underlain the fullness of the Catholic tradition.

When we sensationalize aspirations to orthodoxy, we succumb to the very disease we fight: namely, cheap belief and an uncritical profession of faith. And of one thing we can be certain, that nothing will guarantee its metastasis more surely than those who profess to know its symptoms overlooking and embracing them, since examining them carefully would prove too exhausting and unrewarding.

Along the same lines of interference with freedom of conscience, not only institutions sponsored by the Church, but individual Catholic employers are facing the HHS mandate, regulations based on President Obama’s health care legislation which mandate insurance coverage for contraception.  And just since I began writing this article, in Columbus, Ohio, a Catholic high school, and possibly the Diocese of Columbus, is in legal trouble for firing a long-time physical education teacher whose status as a partnered lesbian recently came to light.

What is the Church, what are individual Catholics, to do in the face of all this?  The answer is obvious, or so it seems.  Simply protect our freedom of religion.  Enact at the federal level strong protections for freedom of conscience and then, even if we deplore the oxymoron of same-sex marriage or the use of contraceptives, at least Catholics and other objectors will not be required to cooperate with or facilitate such practices.

But, unfortunately, I fear that this is not the simple solution that many imagine.  In fact, it is really no solution at all, at least no long-term solution, although it might buy us a little time in the short run.  For every society has certain basic principles and rarely do societies grant sizable minorities the right to exempt themselves from obedience to these principles.  As long as American society was permeated by a vague Protestant ethos, Catholics did not understand very well the absolutist claims that a society based upon a Lockean understanding of religion made with regard to behavior, including behavior motivated by religious ideals.  But now that that Protestant ethos is fast waning, we are equally fast finding out the truth about our place in the American polity.

What am I getting at by calling the United States a Lockean polity?  John Locke, in his (first) Letter Concerning Toleration of 1689, sets forth the position that governments exist “only for the procuring, preserving, and advancing…civil interests.”  And what are these civil interests?  ”Civil interests I call life, liberty, health, and indolency of body; and the possession of outward things, such as money, lands, houses, furniture, and the like.”  The state’s duty, therefore, is “by the impartial execution of equal laws, to secure unto all the people…the just possession of these things belonging to this life” and “neither can nor ought in any manner to be extended to the salvation of souls….”

But is not this simply common sense, many Catholics will object.  Surely the salvation of souls is the business of the Church, not the state.  Directly, yes, of course.  But for millennia men believed that their uniting into earthly communities was for something better and nobler than “money, lands, houses, furniture, and the like,” and that therefore even civil governments could not avoid a concern with ultimate questions, even if such questions were the more direct business of the Church.  Thus in Catholic thought we have the tradition of the state’s duties toward God.  One could easily cite numerous passages from modern ecclesiastical documents to prove this point, but I will content myself with two.

Justice therefore forbids, and reason itself forbids, the State to be godless; or to adopt a line of action which would end in godlessness—namely, to treat the various religions (as they call them) alike, and to bestow upon them promiscuously equal rights and privileges.  Since, then, the profession of one religion is necessary in the State, that religion must be professed which alone is true…. (Leo XIII, Libertas Praestantissimum, no. 21)

The duty of offering God genuine worship concerns man both individually and socially.  This is “the traditional Catholic teaching on the moral duty of individuals and societies toward the true religion and the one Church of Christ.”  By constantly evangelizing men, the Church works toward enabling them “to infuse the Christian spirit into the mentality and mores, laws and structures of the communities in which [they] live.”  The social duty of Christians is to respect and awaken in each man the love of the true and the good.  It requires them to make known the worship of the one true religion which subsists in the Catholic and apostolic Church.  Christians are called to be the light of the world.  Thus, the Church shows forth the kingship of Christ over all creation and in particular over human societies. (Catechism of the Catholic Church, no. 2105.)

Of course this acknowledgment of the true religion on the part of the state need not presuppose a Catholic citizenry nor require civil disabilities of any kind for non-Catholics.  Nor am I suggesting a campaign for the immediate establishment of a Catholic political regime in the United States.  My point here is simply that there ought to be no unnatural separation between our conduct as individuals and our conduct as citizens or as government officials.  Questions of ultimate truth are as important for the body politic as they are for individual persons.

The doctrine of Locke which restricted the government’s sphere of concern to things purely of this world was adopted and continued in the American political and legal tradition.  Indeed, the First Amendment enshrined this view of religion as essentially a private matter.  What follows from this?  Since religious beliefs are now merely private opinions, from the state’s point of view they are important only as providing personal psychological solace or support for personal or social morality.  But their truth or falsity is no concern of society at large, society as organized into a political community.  Since someone’s religious opinions would seem to have nothing to do with how well he will obey the law, they are necessarily relegated to the purely private and are of no concern to his neighbor.  As Locke put it,

If a heathen doubt of both Testaments, he is not therefore to be punished as a pernicious citizen.  The power of the magistrate and the estates of the people may be equally secure whether any man believe these things or no.

For “the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth and of every particular man’s goods and person.”  At the most, religious beliefs are valued for their effect on social stability and public morality, as in the famous passage from George Washington’s Farewell Address which argues that to preserve “political prosperity, religion and morality are indispensable supports [and that] reason and experience both forbid us to expect, that national morality can prevail in exclusion of religious principle.”  But there is no concern for religious truth here, only for using religion as a political prop.

If “the business of laws is not to provide for the truth of opinions, but for the safety and security of the commonwealth,” one might think that therefore freedom of religion would be amply respected in such a society.  But in fact, given the Lockean presuppositions, we arrive at a curious and perhaps unexpected result.  This is that when laws are made infringing upon the (now necessarily private) religious opinions of citizens, these opinions are considered as of little weight as compared with laws respecting persons and property.  Since religion is a purely private matter, and only this-worldly concerns are of importance for the state, then obviously religious principles are of no or little importance when weighed against such weighty matters as “money, lands, houses, furniture, and the like.”  And despite the First Amendment, this has been the stance in the United States from the beginning.  Justice Antonin Scalia summarized the tradition of constitutional jurisprudence in the 1990 case of Employment Division v. Smith:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.

* * *

“The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.”

* * *

Our most recent decision involving a neutral, generally applicable regulatory law that compelled activity forbidden by an individual’s religion was United States v. Lee….  There, an Amish employer, on behalf of himself and his employees, sought exemption from collection and payment of Social Security taxes on the ground that the Amish faith prohibited  participation in governmental support programs.  We rejected the claim that an exemption was constitutionally required.

In what seems to have been the first free exercise case, the 1878 case of Reynolds v. United States, which upheld the law criminalizing the Mormon practice of polygamy, the Supreme Court stated that there was no reason why government could not restrict religious conduct by general and neutral laws.  The Court in Reynolds said, “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order,” and “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”

And to go back even further, the 1779 Virginia Statute for Religious Freedom, written by Thomas Jefferson, gave entire freedom only to what it called “religious opinion.”  It says nothing about religiously-motivated conduct, except to note that “when principles break out into overt acts against peace and good order” then the “civil government [and] its officers [may] interfere.”  It should be clear that the constitutional tradition of First Amendment freedom cannot be invoked in the sweeping manner which so many did prior to the November 2012 election, and that to do so is to mislead the mass of Catholic voters who have little knowledge of what exactly the Supreme Court has said or not said.  Note, moreover, the manner in which both the Reynolds Court and the Virginia legislature speak of “mere religious belief and opinions” or “religious opinion.”  Opinion, something that is simply a private belief, supported by whatever private reasons one finds persuasive, is hardly the way that a Catholic should regard the divine revelation which the Church safeguards as a treasure for all mankind.  Divine revelation is not a mere opinion nor is it something which is of no importance to the political community.

It is clear, then, that U.S. jurisprudence cares not a whit about the truth or falsity of any or all religions; it is concerned only with conduct, and it relegates religious truth to simply a private concern.  As a result of this, while the federal government has often sought to accommodate the religious beliefs of the citizenry, sometimes applying the rule that only a “compelling governmental interest” should be held to override religiously motivated conduct, this is done not because of a concern that the religiously motivated conduct might be based upon revealed truth, that its infringement might bring God’s disfavor upon the nation, but merely in a respectful acknowledgement of deeply held private beliefs, regardless of the religion in question.  This, however, is simply an application of the fundamental principle that the political community as such has no interest in whether any particular religion might be true or false.  But by basing our objections to the HHS mandate or to forced compliance with same-sex “marriage” ceremonies merely upon religious liberty we are unwittingly latching on to the principle that brought our difficulties upon us in the first place.

How so?  When society considers itself officially agnostic on religious questions, how is it to regulate itself?  Simply on the basis of its own reasonings about how best to obtain and protect “money, lands, houses, furniture, and the like.”  And nowadays, about how to obtain and protect other this-worldly goods, such as personal pleasure and self-fulfillment.  And naturally enough, such a society will make laws to attain these ends.  Every society necessarily has common norms, and in fact no society can do without them.  A society can tolerate dissent from those norms only when the particular norms in question are not important or when the dissenters are a small and insignificant group.  Thus, for example, U.S. society can tolerate the peculiarity of Jehovah’s Witness opposition to blood transfusions, or the Christian Scientist opposition to all medicine, or Quaker opposition to military service, only because these are small and unimportant groups.  But if there were numerous Christian Scientist employers who claimed that it violated their religious liberty to provide any health insurance to their employees, or if a large group such as Catholics claimed the right to be selective conscientious objectors in the case of unjust wars, then American society might not be so lenient.  In fact, the U.S. courts have always rejected claims by Catholics or others who invoke the principle that it is wrong to participate in an unjust war.  On the positive side, several decades ago the federal government prohibited private businesses from discriminating on the basis of race, so that, for example, it would presumably be illegal for a florist to refuse to provide flowers to a wedding between persons of European and African descent.

A society cannot exist without common norms and standards, and always enforces at least the more important of these, and to permit an endless series of exceptions is probably not workable.  In any case, no society is particularly interested in trying to see if it can successfully accommodate various sizable minorities of dissenters.  Current U.S. society has its own goals and naturally will seek to enact them into law.  So does that mean that I think Catholics and others should be forced to provide services for the pretended wedding of two men or two women?  Hardly.  What I mean is that by arguing, as we are doing most forcibly in the case of the HHS mandate and probably will begin to do in the case of same-sex “marriages,” arguing from simply a private individualist claim of exemption from society’s norms is not the correct way to proceed.  It is impossible to escape from the reality of social norms, and from social norms that are enforced, at least on occasion, by law.  What we should desire are social norms which rest upon truth, which respect human nature, which are not an offense to God.  That is the way out of the situation which our unthinking acceptance of the idea that religion is merely a private affair has got us into.  For the most part Catholics in the U.S. were content to allow our polity to base itself on the principles of liberalism under which ultimate truths about man were rendered into merely private opinions.  The vague Protestant character of our social norms prevented them from being too much of a threat to us, or at least we thought.  So long as our private opinions did not seem to differ too much from those of the majority society, or as long as we were willing not to protest too much—such as during Prohibition when the government prohibited one of mankind’s most natural and ancient of activities—we could get along well enough with American society.  But now that American society no longer is informed by a vague Protestant morality, we suddenly find that we are not comfortable here anymore.  All I can say to that is, it’s about time we learned the truth.  Catholics were never at home in a society that at its essence stands for the things that Catholic social philosophy condemns.  We cannot in the long run be at ease in a culture that privatizes religion, for the Church cannot be reduced to simply another pressure group, another private organization that exists under the benign smile of the regime, which is happy to tolerate us as long as we do not challenge its foundations.

What then is to be done?  Should we preach loudly and clearly the undoubted truth that “the profession of one religion is necessary in the State [and] that religion must be professed which alone is true,” and that therefore the Catholic faith must be publicly professed by the state?  Obviously this would be an absurd method to employ at present, though on the other hand we must not hide this truth or pretend that it does not exist.  No, we must simply say that same-sex unions are wrong, that contraception is wrong, that we refuse to participate in such actions because “We must obey God rather than men” (Acts 5:29).  That was the commandment that the Apostles relied upon, not an appeal to the principle of religious liberty.

The apparent harmony between the goals and practices of American culture and those of a Catholic culture was merely a surface harmony.  From the beginning the secular principles upon which the country was founded and run were threats to the Church, and all along her freedom was restricted, but in ways that were considered so minor as to call forth little notice or concern.  But now the differences between the two ideals of life are obvious.  It will no doubt be exceedingly difficult to pursue the path I recommend here, and much easier to base ourselves upon the familiar catchwords of religious freedom and the Constitution.  But there is no better time to make a real stand than now.  It will not get any easier.  Should we manage to obtain religious exemptions from the current abominations that threaten us, eventually another one will arise, and then another one and another one.  At some point society will say No to us and all our pleas for First Amendment rights will be in vain.  It is better now to preach the Faith in its fullness then to hide behind an implicit acceptance of the idea that religion is a merely private affair.  No doubt, as I already said, it is proper to seek refuge for the time being in whatever protections the First Amendment may offer.  But it is not right to maintain that that is all we seek, that religious liberty is our highest goal and neglect to declare to our fellow citizens the “whole counsel of God” (Acts 20:27).