A group of prominent Christians has published a letter indicating their intention to defy any decision by the Supreme Court that legalizes gay marriage or overturns the Defense of Marriage Act. Without bothering to wait for the decisions in gay marriage cases before the court, they have argued that natural law supersedes the Constitution.
You can read their argument here:
Natural Law is a concept from Catholic theology that has been used to provide a basis for both morality and legality. A general discussion of its history and substance may be found here:
In a nutshell, natural law is a claim that there are objective moral (or legal) standards which can be discovered by human reason. As such it is not a part of revealed religion, but might be considered as part of natural religion. Of course in the present instance the claim is that marriage is between one man and one woman is an objective moral law.
The unanswered question is what form their defiance can take. Mere refusal to recognize gay marriages is a weak kind of defiance if it can be called defiance at all. Another question is the degree to which Americans are prepared to recognize natural law as an objective basis for actual law. I would bet that the notion of natural law is not widely understood. Its purported independence of religious claims is also open to question.
Its purported independence of religious claims is also open to question.
recognize natural law as the basis for actual law in some cases but not in order for same-sex marriage to be legal.
Here I disagree since I do not at all accept the concept of natural law in the sense of objective morals, but only in the sense of scientific law. The claim there are moral imperatives derived from the nature of human personality seems false to me. Believers might argue that moral imperatives or at least the ability to recognize them are implanted by God. I see no source for such laws or any means of discovering them. To me they result from the practical needs of human society as refined by experience over time.
I am still at a loss as to why they call church doctrine natural law. I would think that "supernatural law" is more applicable. I think they are trying to add legitimacy to their views by using the word "natural". And yet they take issue with natural selection.
Aquinas distinguished natural law and divine law as revealed by scripture or the church and says the following:
Consequently the first principle of practical reason is one founded on the notion of good, viz. that "good is that which all things seek after." Hence this is the first precept of law, that "good is to be done and pursued, and evil is to be avoided." All other precepts of the natural are based upon this: so that whatever the practical reason naturally apprehends as man's good (or evil) belongs to the precepts of the natural law as something to be done or avoided.
Divine law covers what needs to be done for salvation. Aquinas argues that natural law is the same for everyone, but everyone may not know what natural law is unless they take the trouble to discover it with their own reason.
Thanks for the reference!
Some here may not be familiar with the history leading to Proposition 8 in California, which amended the Constitution. California has had equal (state) benefits for same-sex domestic partners for a long time. The California Constitution prohibits discrimination on the basis of sexual orientation. The result was the California Supreme Court ruled that disallowing same-sex marriage could have only one purpose in view of equal benefits and that was discrimination.
People who disliked this ruling put Proposition 8 on the ballot to amend the Constitution and rule out same-sex marriage. The Mormon Church spent a lot of money in California to get it passed and it did pass 52% to 48% after a vigorous campaign.
I would expect the US Supreme Court to rule that Proposition 8 is discriminatory and violates the California Constitution and say that if Californians wish to change that, they may amend the Constitution to remove the anti-discrimination clause for sexual orientation.
The Defense of Marriage Act is blatently unconstitutional in that it allows a state to ignore the public act of another state in performing same-sex marriages. I believe Congress knew it was not Constitutional when it passed, but it was popular and all acts of Congress are presumed to be Constitutional until they are tested by a court case. (It's Article IV, Section 1 that requires each state to give full faith and credit to the public acts of every other state. This is one of the pillars of federalism.)
Of course anything is possible, but these two issues seem so clear legally I will be surprised if the court rules in another way. There are always technicalities that could interfere, but I suspect the court will not want to be accused of dodging an important issue on a technicality. People are misreading the entire question if they think the court will rule on the basis of what they believe is good for society or what they think popular opinion favors. These decisions will rest on a firm basis of law and nothing else.
Of course I often get these things completely wrong and I won't be surprised to be wrong once again.
Most likely I would be wronger than you. (Did I just say that?)
It's pretty clear that Californians do not want to have discrimination encoded into law. The state has been progressive on that front and Proposition 8 would probably not have passed without all the Mormon money from out of state. The Mormons have made a big effort to recruit Hispanics in California and have been successful.
Scalia has already made his decision known, semidirectly. He stated the court has no place making decisions about social issues like homosexuality, and that the constitution does not speak on the issue, while laws at the time of the constitution's writing were very antigay. (then there's slavery... but we had an amendment to fix that. No amendment for equal rights for women tho.... or for birth control rights... oor for interracial marriage).
Interesting that Scalia looks to Thomas for leadership.
As for what form christian "defiance" will take.... interesting to think about. Maybe they'll refuse to sanctify same sex marriages. No loss there. As employers, refuse family benefits? As hospital owners - which involves many employees and patients many thousands of people, maybe millions - refuse family visitation and decision rights? Just speculating here. As employers and business in other areas - who knows.
He stated the court has no place making decisions about social issues like homosexuality
And that fits exactly with my guess that the decision will be made solely on the basis of the law. In the case of DOMA, that it violates Article IV, Section 1, and in the case of Proposition 8, that it introduces a contradiction into the California Constitution leaving the state without a rational solution.
As for what form christian "defiance" will take.... interesting to think about.
It is an interesting question whether religious institutions will want to run the risk of expensive law suits to establish some minimal right to defy a decision made strictly on the basis of law.
And it won't just be bakers and florists insisting they don't have to provide wedding services and products. It will also depend on how strongly the individuals believe, and on their intestinal fortitude.
My guess is the "little business owner" will be the one to suffer - the big "professionally antigay" groups like NOM and Focus on the Family aren't likely to have LGBTI employees or services for LGBTI people, so they can be "defiant" until the cows come home, and it won't cost them a dime.