WASHINGTON — Far from their 1967 argument that "every type of discrimination" must be "eradicated," America's Catholic bishops are now arguing that "the federal government is not constitutionally bound by, and should not be held hostage to, redefinitions of marriage that are adopted in some states."
The bishops have gone from making a strong moral and religious case for ending interracial marriage bans in the 1960s to making a largely political argument in 2013. They are now urging the U.S. Supreme Court to hold back on finding same-sex couples to have similar constitutional rights.
The Catholic Church's differing position on marriage restrictions based on race as opposed to those based on sex — and, in practice, sexual orientation — is well established. It could not be more starkly presented, though, than in the way American bishops have urged the Supreme Court to handle such restrictions.
"Interracial marriages do not constitute a threat to the 'principles of government' made manifest in the United States Constitution," several American bishops — and four archbishops — argued in a brief filed in support of Mildred and Richard Loving's right to marry. Mildred was black and Richard was white; Virginia law made their marriage a crime.
In 1967, the broad geographic swath of Catholic bishops and archbishops — including those from North and South Carolina, Georgia, Mississippi, and Louisiana — joined the National Catholic Conference for Interracial Justice and National Catholic Social Action Conference in arguing to the Supreme Court that interracial bans on marriage were a violation to the 14th Amendment to the U.S. Constitution, which guarantees equal protection of the laws. The group also argued the bans violated the constitutional "right of privacy" and "freedom to marry," as well as being an "invalid restriction on the free exercise of religion."
On Jan. 29, the lawyers at the United States Conference of Catholic Bishops filed very different briefs in the cases challenging California's Proposition 8 amendment and the Defense of Marriage Act. In asking the court to uphold Proposition 8, which bans same-sex couples from marrying, as constitutional, the bishops argue, "The exercise of restraint in this case as well will redound to this Court's institutional credit."
In 1967, they argued in favor of aggressive action to "overcome and eradicate" discrimination, writing, "These bishops, as pastors of their respective dioceses, are committed to the proposition that 'with regard to the fundamental rights of the person, every type of discrimination, whether social or cultural, whether based on sex, race, color, social condition, language or religion, is to be overcome and eradicated as contrary to God's intent.'"
As part of that argument, the bishops noted, "It must be emphasized that the teachings or laws of some of the churches or religious bodies in the United States even exclude specifically any restriction on marriage based upon racial considerations." In fact, the bishops spent a significant part of their argument detailing how interracial marriage bans violated "that 'free exercise of religion' guaranteed to the individual by the First and Fourteenth Amendments to the United States Constitution."
With regards to churches that, in 2013, allow same-sex couples to marry, today's bishops argue that such considerations are irrelevant:
Proposition 8 is not rendered invalid because some of its supporters were informed by religious or moral considerations. Many, if not most, of the significant social and political movements in our Nation's history were based on precisely such considerations. Moreover, the argument to redefine marriage to include the union of persons of the same sex is similarly based on a combination of religious and moral considerations (albeit ones that are, in our view, flawed). As is well established in this Court's precedent, the coincidence of law and morality, or law and religious teaching, does not detract from the rationality of a law.
To the extent the bishops consider protection of religious views at all, it is in defense of those who oppose allowing same-sex couples to marry. If the court held in the case challenging Proposition 8 that same-sex couples have a constitutionally protected right to marry, "those who disagree with the government's moral assessment of such relationships would find themselves increasingly marginalized and denied equal participation in American public life and benefits."
In addition to "the simple matter of biology," which enables opposite-sex couples to reproduce, the bishops argue that "the People of California could reasonably conclude that a home with a mother and a father is the optimal environment for raising children, an ideal that Proposition 8 encourages and promotes."
Regarding arguments about a suboptimal environment that children of interracial couples faced in 1967, the bishops professed a different view. Then, they wrote:
The parties to an interracial marriage or their children may suffer, but this is not because of anything inherent in the family structure of the marriage. Rather it is due to the lack of understanding and the race prejudice that an interracial family may encounter. In short, this suffering is due to the reaction of third parties, not to the marriage itself.
All of the major medical and mental health associations argue similarly that stigma faced by same-sex couples and their children today is increased because of marriage restrictions.
In 1967, the bishops concluded, "[W]e respectfully submit that marriage is an exercise of religion protected by the First and Fourteenth Amendments to the United States Constitution; that, as such, marriage can be restrained only upon a showing that it constitutes a grave and immediate danger to interests which the state may lawfully protect; and that interracial marriages do not constitute any danger to any interest which the state may lawfully protect."
In defending DOMA in January, the bishops handled the question differently, arguing, "The law's historic treatment of marriage as the union of one man and one woman belies any conclusion that there is a fundamental right to marry a person of the same sex." Additionally, they state that such a right cannot "be shoehorned into a generalized 'right to marry.' For well over a century, this Court has held that marriage is a fundamental right, but those decisions, which expressly reference the link between marriage and procreation, make clear that by 'marriage,' the Court means the union of one man and one woman."
Although the 1967 brief went on to argue that interracial marriage bans also were unconstitutional for their impact on "the right to beget children" — because such bans meant all children of such unions would be "legally denominated as bastards" — it is notable that the final citation even in that section of the brief is not about procreation itself.
"In Meyer v. Nebraska," the bishops wrote of an earlier case, "the Court had denominated, as a right included within the 'liberty' guaranteed by the Fourteenth Amendment, 'the right of the individual ... to marry, establish a home and bring up children ...'"
Among the arguments made by the plaintiffs in the challenge to Proposition 8 — one of the two plaintiff couples are raising children — is the very same argument.