As is usual for the Jesuits post-1965, they continue to muddy waters and cloud minds by pretending to play both sides of every coin, fence, and issue. But they don’t really HOLD both sides, and so their sometime façade of even-handed neutrality always has holes in it. Regarding Obergefell, this editorial by young Jesuits (in training) makes the usual hand-waving for appearing neutral:
For those who support it, yesterday’s ruling is against injustice and for equality. It is not, by any stretch of the imagination, against religion and for immorality. And there’s a danger if religious voices continue to react as if advocacy for same-sex marriage is in itself a form of religious persecution. It simply is not. The motivations don’t match religious persecution, and neither does the end result. To equate what many perceive as correcting an injustice with religious persecution is to invite that persecution.
Notice the distancing of “for those who…” and “what many perceive” from the editorial self? But are they really neutral? Not hardly:
Many of us know people in same sex relationships of authentic love. We have come to understand that love, fidelity, and mutual commitment are worth being grateful for, regardless of the genders involved. We know the real hardships our loved ones suffer on account of not having the same rights as their heterosexual counterparts – whether through actual discrimination on the part of the government or through internalized perceptions of inferiority and worthlessness.
As expected, the supposed neutrality of the liberal simply shrugs away definitive Church teaching that the kind of “love” that holds between active gays and lesbians isn’t actually love at all, it is something else. Our young Jesuits would have scolded Jesus when he tells the adulteress to “go and sin no more,” and when he calls the Samaritan woman at the well - who He says “had five husbands, and the man you now have is not your husband”- away from adultery and fornication. True respect for gay people cannot allow us to pretend that years of dedicated living out a sinful desire that rejects God’s idea of love is, actually, love.
So, was it really a matter of justice that gays have recognition for same-sex “marriage”?
To answer that, I suggest that we first look at some simpler questions.
Why does the state have marriage as a civilly recognized status at all?
Why does the state care if you have sex with someone?
Why does the state care if you publicly declare your interest in living with someone?
Why does the state care if you design to make a joint living arrangement permanent (or quasi-permanent) or not?
Why should the state set forth qualifying parameters for contracts of these matters? Why not let you design your own contract, and call it “marriage” if that’s what strikes your fancy? Why does the state care if you call a car sales contract "marriage"?
These are personal matters. Why is it a state matter? If you want the state to care, you have to show a reason.
Everyone knows the reason, deep down: children.
The tie-in between having sex and begetting children is the prime reason the state takes an interest. This is true from 2 angles: the state has a role in promoting the good of all of its members, and children are members of the state. Secondly, the state needs children to become its future generation of adults, so it needs children both being born and being raised well. The state has a critical interest in children. And the latter doesn’t happen all by itself without anybody paying attention to it, so the state pays attention to it, in part by paying attention to the former: the begetting of those children.
Since sex is where children come from, the state cannot but have an interest in the baby-producing sex decisions of its people. This was manifestly true before effective contraceptives were around. It remains true today, not least because every form of contraceptive has failure rates. If the state can have an interest in making you wear a seatbelt because in 1 out of 5,000 rides in a car you will likely be in an accident, then it must surely have an interest in the children that will be conceived in the much more than 1 of every 500 liaisons “protected” by contraceptives (between a man and woman both fertile).
That’s the non-moral aspect of the state’s interest. As such, even in a society that doesn’t think sex “outside of marriage” is morally significant, the state would still have an interest.
Historically, nearly all peoples have indeed had rules that said “sex outside of X limits” is wrong. Not just “against society’s rules” but also “morally wrong”. Those rules may have had some variation, but they also had a very great deal of consistency between different social groups. Here are 2: sex before marriage (fornication) is forbidden. Sex with a married woman by a man not her spouse (adultery) is wrong.
Again following the historical pathway here, most societies have proscribed adultery and fornication because those societies were stating allowable parameters for sex, i.e. PERMISSIBLE sex: given that babies come from sex, and that many or most adults will have a high inclination for sex at least intermittently, society has an interest in promoting the single most effective civil practice ever known for raising children well: the family. And thus, the social view was generally that sex is socially permissible within the marriage as the foundation of the family, and ONLY within the marriage, not otherwise. (That is, promoting that people form families is the other side of the coin of prohibiting sex outside of marriage, and thereby prohibiting that people have kids outside of families). Statutory constraints are of course a subsequent way of making effective the prior existing social rules for same: LEGAL sex is just the socially permitted sex enacted into law. In designing that children always be born into the pre-existing family of its married parents, society (and the law) prescribed that sex legally takes place only in marriage.
Notice, though, that the entire fabric of society (and the state) even having ANY interest at all in your sex life is its relationship to children. Absent a state interest in the children that arise from having sex, (and without a distinct moral view of sex), there is no rationale for a state interest in the matter.
I haven’t said anything about whether the state really does have any authority to limit people having sex by law. It was, until late last century, taken to be a given, and the social fabric (and legal fabric) was based on that assumption. My point here isn’t to debate whether that authority exists, it is pointing out that the ISSUE DOESN’T ARISE without the connection of sex and having / raising children, and society’s interest in those kids.
But all of state law about marriage is simply spinning out that basic question “are you allowed to have sex, and if so, with whom.” If there is no authority in society for speaking to limits on your sex life, there is no rationale for state recognition of marriage, for the civil point of recognizing marriage _consists_ in setting out rules limiting your sex life.
So, there is a deep incoherence in the state denying any role in telling you whom you may or may not have sex with, and yet having a civil category of “marriage” about which it makes rules deciding who may and who may not get the status named “marriage”. The whole point of society having an interest in marriage rests on society having an interest in limiting your sex life for the sake of children. Getting rid of laws against sex outside of marriage, but keeping marriage as a statutory entity is incoherent. That’s like eradicating the category of recyclable bottles (remember the old coke bottles with 3 cent deposit?) but KEEPING the rules about the deposit on same. Huh?
Obviously, there is a fundamental incoherence in society having any interest in promoting the sex lives of people who choose to commit to sex that cannot even in theory result in children. Such relationships have ALWAYS been understood as non-marital precisely because there is no connection between such acts and children, and “marriage” (as recognized by society) is the social arrangement society uses to make sure people only _beget _kids_ within_ families. It would make as much sense as awarding “marital” status to a baseball team. Society as a public reality isn’t interested in your sex life simply for its own sake, and never was. (After all, the state doesn’t go out and scrounge up a mate for you if you aren’t succeeding on your own – that you don’t have much of a sex life is not a matter of distress on the part of the state.)
Other legal changes are also incoherent with this backdrop: the good of marriage for children is based heavily on its permanence. No-fault divorce is an intense attack on any social concept of marriage as permanent. There is no other contract for which the state will say “oh, one party wants out, so OK, we will dissolve the contract.” And undermining the very permanence that gives marriage most of its particular benefit for the sake of children cannot improve the state of children or society.
The awarding of paternal rights over a child to unwed fathers (as a right rather than in pursuit of the best balanced interests of all parties) is also incoherent. “Civil marriage” is the social construct by which society says “sex is only legal within certain limits, for the good of the children,” and so having sex outside those limits doesn’t get you marital rights. And a father’s natural right to custody over (and a moral and social relationship with) the child is primarily rooted in marriage, not sexual choices in defiance of marriage.
So, now we can answer the question in a straightforward way: No, 2 people of the same sex have no right as a matter of justice to have society grant them the social recognition of “marriage” because their relationship has no bearing on the root purpose of “marriage” as a social status. Just as a baseball team, and a limited partnership, and 2 straight bachelors sharing an apartment together for a 1 year stretch, have no right as a matter of justice to have society grant them the social recognition of marriage.
Shall we now hear much of sad tales, full of sound and fury, signifying nothing?