Wrong Lessons Learned Print
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By William Saunders   
Tuesday, 13 October 2009

On September 15, “StandForMarriageMaine.com” released a television ad. In it, Scott Fitzgibbon, a professor at Boston College Law School (a Catholic institution), argued for the traditional understanding of marriage as between one man and one woman and in favor of an upcoming referendum to overturn a law passed by the Maine legislature legalizing same-sex marriage. The ad unleashed a fire storm, directed at the courageous professor.

Fellow professors at B.C. Law School – one hesitates to call them colleagues – contacted the dean to express their anger. So fiery was the blast that the dean was forced to issue a statement that defended Fitzgibbon’s academic freedom (or right to speak his mind). But the dean also later joined a statement from faculty and administrators assuring homosexual students (and staff) that they were welcome at BC Law. Apparently, it is no longer remarkable that a Catholic law school in this country prides itself upon being “one of the first” to set up a non-discrimination category for homosexuals at a time when everyone, including surely BC law professors, knows that just such a category in federal law will be the nail in the coffin of religious liberty for America’s Catholic institutions.

This is a highly instructive event that invites comment.

Clearly what is going on here is an effort to “shame” Professor Fitzgibbon (and those who agree with him) into silence. The assumption by the angry members of the BC Law “community” is that his views are so far outside the “mainstream” that all right-thinking persons must reject them. They are so poisonous, on this view, that they make civic life impossible; anyone who holds them should be ashamed; they are intolerable.

What does that sound like? What other views do we as a nation most vehemently reject? What other views do, I would guess, 99 percent of Americans find to be intolerable? I would suggest it is racism or racist views. Given our history, our country is committed to eradicating the legacy of slavery and of the legal discrimination that the Jim Crow laws established. Express racist sentiments and society will come down hard on you. Americans will not tolerate racism.

Advocates of “gay rights,” such as those meeting at the White House last weekend, see themselves – with some encouragement for our president – as the legitimate moral heirs the Civil Rights movement of the 1960s and 70s. (Some of us might put the defense of unborn life on and equal or even higher level.) Many Americans agree with them.

The civil rights movement was a struggle for equal justice under law. It took many years, much suffering, and too many lives, but the movement was successful in the end. The civil rights movement won largely by winning the hearts of non- black Americans; it did this by reminding Americans that blacks were fellow human beings, fellow citizens.

Americans came to see the injustice of the thing. It was wrong to judge a man by the color of skin, not by the content of his character, as Martin Luther King, Jr., put it, because there was no reasonable reason for doing so. Eventually, courts (who had once legitimized the segregationist Jim Crow laws) put this in legal lingo that, nonetheless, makes sense to the common man – such racial discrimination is “irrational;” hence, laws establishing it offend our constitution which guarantees the equality of all citizens; such laws are “invidious” discrimination.

This is the (true and good) story of the civil rights movement in America. Sadly, however, Americans learned the wrong lesson from it. Americans, by and large, appear to have learned that all discrimination is wrong. But that misses the point. What is morally wrong is irrational discrimination, not every instance of discrimination.

There is nothing morally wrong with denying drivers’ licenses to blind people, individually and as a group. The right to a driver’s license depends upon satisfying tests that society has reasonably decided are necessary for being a safe driver. Obviously, blind people cannot do so. Consequently, “discriminating” against them in granting drivers licenses is totally different from discriminating against black persons in granting such licenses.

Thus, every group clamoring for “rights” is not the legitimate heir of the civil rights movement. Only if they are suffering under irrational discrimination would they be. The question about the “right” of same-sex persons to marry one another, thus, reduces to this question, is the fact they cannot marry one another irrational?

It seems obvious on its face that it is not. Sexual complementarity, procreative ability, and the natural link to child-rearing are among the things that make it reasonable to define marriage as between one man and one woman. The Supreme Court case most often cited by same-sex marriage proponents – Loving v. Virginia – in which the Court struck down state laws against interracial marriage, is actually an argument against same-sex marriage. What is necessary for two persons to become a one flesh unity, or a single reproducing organism, (you may choose the Biblical or scientific metaphor you prefer) – that is, to consummate a marriage – is something that two same- sex persons simply cannot do. They cannot engage in that kind of sexual intercourse – while two opposite-sex persons of different races obviously can.

Thus, it was unconstitutional invidious discrimination to prohibit people of different races from marrying, while it would not be to prohibit same-sex persons from doing so. In the first case, the “discrimination” is irrational, and hence, wrong, while in the other it is reasonable and morally good.

Now you can see why Professor Fitzgibbon is “courageous.” In a nation that has lost the ability to tell the rational from the irrational, and hence calls all discrimination wrong, it takes courage – unusual courage – to be reasonable, even at a Catholic law school.

 

William Saunders is Senior Vice President of Legal Affairs at Americans United for Life. A graduate of the Harvard Law School, he writes frequently on a wide variety of legal and policy issues.

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