Tag Archives: Marriage

The Synod on the Family and the Developing World

Opening_Session_of_the_Extraordinary_Assembly_of_the_Synod_of_Bishops_at_the_Vatican_on_Oct_6_2014_Credit_Mazur_catholicnewsorguk_CC_BY_NC_SA_20_3_CNA_10_7_14

First World Problems?

Not long after his election, the new Pope explained why he had taken the name “Francis”: “Ah, how I would like a church,” he said, “that is poor and is for the poor.” It was refreshing: the Pope was going to change the basic terms of the conversation between the Church and the world. Instead of waging a grinding “culture war” against a secular West, the Church would instead speak to the most urgent concerns of the global East and South. The first Pope to come from beyond Europe and the Mediterranean basin promised to be the champion of those who lived in the parts of the earth where hunger, injustice and persecution abounded. Places like the Philippines, Mexico, and Nigeria had already become the true center of gravity of a global Church, displacing Quebec, Chicago, Milan and Vienna. The new Pope would speak for the populations of the emerging world – for their suffering, their desperation, their resilience, their energy, their sense of hope. The “North/South” polarity would supplant the “Left/Right” one. The Church would make the pivot to poverty. In making that turn, it would address the West too – but by awakening it from the deadly self-absorption of the affluent.

So when one learns that the Synod of Catholic cardinals and bishops summoned by the same Pope has returned the conversation to the culture wars of the West – though with unmistakable overtones of capitulation on many of the bishops’ part — it is, to say no more, a disappointment. Try as it may, the Church under Francis seems to be unable to resist scratching the sores of Western sexuality. The consuming obsessions of the West, now in the terminal phases of the sexual and cultural revolutions that have swept over it for more than half a century, are dominating the Church’s agenda once again. At the Pope’s insistence, the bishops did a reset, plunging the Church into renewed debate over divorce and homosexuality and cutting short the conversation that the Pope had earlier invited over famine, persecution and want. With Islamist terrorist groups like Boko Haram recently murdering 2500 Catholics in one Nigerian diocese alone, and with Christian children being crucified or cut in half by ISIS, you might think that the world’s bishops would have more pressing things on their mind than the compatibility of same-sex unions with Church teaching. You would, of course, be wrong.

Indeed, even considering “family” issues alone, the non-Western Church was short-changed: how much attention was given to the question of inter-faith marriages, despite its being a major concern for the Church in India? In the Philippines, many marriages break up because poverty forces a spouse or parent to migrate overseas in search of employment, leaving home, spouse and children behind. Philippine Cardinal Luis Tagle noted this problem, saying that poverty “goes right at the heart of the family” in his country ; but how much attention did this issue get?

What is more, the organizers of the Synod openly expressed their indifference to – if not contempt for – the opinions of the leaders of the non-Western Church. They spoke as if the opposition of the African bishops to their “modernizing” program could stem only from irrational hatred and prejudice. What the Africans needed, they seemed to be saying, was a good, stiff dose of Richard Posner’s writings. In the controversy over the initial draft of the Synod’s statement, Cardinal Walter Kasper, an octogenarian German theologian and a favorite of the Pope’s, infamously said:

Africa is totally different from the West. Also Asian and Muslim countries, they’re very different, especially about gays. You can’t speak about this with Africans and people of Muslim countries. It’s not possible. It’s a taboo. For us, we say we ought not to discriminate, we don’t want to discriminate in certain respects.

Kasper later denied having made those revealing remarks – a denial that was then proven to be false. In any case, the remarks hardly seemed out of character for the Cardinal. In an interview with the German magazine Focus published under the heading “Third World Land,” Kasper was reported to have said, “When you land at Heathrow you think at times you have landed in a Third World country.” The German Cardinal obviously notices different things when he is at the airport from what Cardinal Tagle does. The Philippine prelate spoke of his anguish in watching Filipino mothers at airports forced to part from their children because their poverty is so desperate that they must leave their families and search for work abroad.

Not Just Cardinal Kasper

Even if Cardinal Kasper’s statement were merely condescension on the part of the passenger with the first-class cabin towards the passengers in steerage, it would be bad enough. But Kasper and those like him simply did not seem to understand the position. Perhaps the Africans and Asians are not just squinting narrowly at the issue of homosexuality, but rather looking at the state of Western culture as a whole? And perhaps they do not like what they see? Perhaps the cultural exports of the secular West – its current practices regarding marriage, abortion, childbirth, the family, the relations between the sexes – are no more wanted in Africa and Asia than the West’s toxic wastes and sewage effluents? (New York Cardinal Dolan’s wonderful defense of the “prophetic” African Church effectively made these points. )

But the problem with the Synod went far beyond the tactlessness and incomprehension of elderly European churchmen. Apparently at the Pope’s insistence, the Synod’s final report included three controversial articles that had received the approval of a Synod majority, but not the supermajority required for consensus. The final report will now go to the Church throughout the world for discussion and debate before the Synod reconvenes. You can be sure that the media coverage of the debate in this intervening period will focus overwhelmingly on the articles that the Pope reinstated. Cui bono? In their effort to get the conversation back on the familiar tracks of the Western culture wars, the Pope and his bishops are doing serious harm to millions of faithful Catholics trying to live out the Gospel in hostile and often dangerous conditions in the emerging world.

My former student, Andrew Ratelle, makes the point forcefully:

By upholding the nuclear family, the Church made what was perhaps the most important social investment in history. People in the poorer, more pagan regions of the world where polygamy, polyandry, arranged and child marriages were common, now had a place to look for support when it came to building a life that was most beneficial for themselves and their children. By weakening this support, or at the very least dispersing it to include more “diverse” arrangements, these bishops have weakened the very shield from which the nuclear family has received so much protection. Even in our own country, where “diverse” familial arrangements have almost become synonymous with urban poverty and crime (at least for those who have no gilded safety net to fall into), where should families look to now, since the Church has seen fit to dilute the medicine they have thrived on for so long?

Church leaders in the developing world understand this perfectly well. South African Cardinal Wilfrid Napier, for instance, wondered how he could deny communion to an African man living in polygamy in accordance with local culture and tradition, if he had to administer the sacrament to a divorced man married to his second wife? “Successive” polygamy, Napier pointed out, is hardly distinguishable from “simultaneous” polygamy.

Pope Francis was right (at first): it really is time to change the conversation. The global Church is not the parochial Western Church; the Church of the poor and the marginal is not the affluent, greying Church of Western Europe and North America. The Church should not be shadowing the West’s cultural trajectory all the way downwards. The future of the Church lies elsewhere. Ex oriente, lux.

Photo from the Catholic News Agency.

The Weekly Five

This week’s collection includes Benjamin Berger on the modest but useful role of law in mediating religious controversies; Cole Durham and others on same-sex marriage across the globe; Kenneth Lasson on food regulation; Ronan McCrea on face veils in Europe; and Eric Segall on legislative prayer.

1. Benjamin L. Berger (Osgoode Hall), The Virtues of Law in the Politics of Religious Freedom. Berger finds a role for law in mediating the politics of religious freedom. Unlike politics or religion, he says, law does not make comprehensive moral and empirical claims. Law’s goals are much more modest. As a result, law can bracket ultimate truth claims and reach workable compromises in religiously pluralist societies. He offers two examples, a Canadian case on the question whether a witness may give testimony wearing an Islamic niqab and an Israeli case about gender segregation on public buses.

2. W. Cole Durham (BYU) et al., A Comparative Analysis of Laws Pertaining to Same-Sex Unions. The authors survey marriage laws across the globe and report that only a relatively small number allow same-sex marriage. Most states that have decided to allow same-sex marriage have done so through the legislative rather than the judicial process. The authors maintain the legislative route is preferable for a variety of reasons and point out that “with very few exceptions, national and supranational courts have held that such decisions must be left to democratic action by citizens or their legislative representatives.”

3. Kenneth Lasson (University of Baltimore), Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat. The author discusses constitutional issues raised by food regulations that implicate religious practices, “especially when regulatory schemes bring into play both consumer protection of the public and recognition of individual rights.”

4. Ronan McCrea (University College London), The Ban on the Veil and European Law. McCrea argues that “offensiveness,” alone, will not justify bans on the public wearing of face veils under European human rights law. However, he maintains, “a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.”

5. Eric Segall (Georgia State), Silence is Golden: Moments of Silence, Legislative Prayers, and the Establishment Clause. This comment on Town of Greece v. Galloway argues that the best solution to the controversy over legislative prayer is to forbid such prayer in favor of a moment of silence. This solution, Segall argues, “would solemnize governmental hearings and allow people with business there to pray or not pray, without causing offense to, or even in some circumstances coercing, people who do not wish to engage in a religious exercise.”

Hornbeck & Norko (eds.), “More than a Monologue: Sexual Diversity and the Catholic Church: Inquiry, Thought, and Expression”

Next month, Fordham will publish More than a Monologue: Sexual Diversity 9780823257621and the Catholic Church: Inquiry, Thought, and Expression, edited by Patrick Hornbeck II (Fordham University) and Michael A. Norko (Yale University). The publisher’s description follows.

This volume, like its companion, Voices of Our Times, collects essays drawn from a series of public conferences held in autumn 2011 entitled “More than a Monologue.” The series was the fruit of collaboration among four institutions of higher learning: two Catholic universities and two nondenominational divinity schools. The conferences aimed to raise awareness of and advance informed, compassionate, and dialogical conversation about issues of sexual diversity within the Catholic community, as well as in the broader civic worlds that the Catholic Church and Catholic people inhabit. They generated fresh, rich sets of scholarly and reflective contributions that promise to take forward the delicate work of theological-ethical and ecclesial development. Along with Voices of Our Times, this volume captures insights from the conferences and aims to foster what the Jesuit Superior General, Fr. Adolfo Nicolas, has called the “depth of thought and imagination” needed to engage effectively with complex realities, especially in areas marked by brokenness, pain, and the need for healing. The volumes will serve as vital resources for understanding and addressing better the too often fraught relations between LGBTQ (lesbian, gay, bisexual, transgender, and queer) persons, their loved ones and allies, and the Catholic community.

Inquiry, Thought, and Expression explores dimensions of ministry, ethics, theology, and law related to a range of LGBTQ concerns, including Catholic teaching, its reception among the faithful, and the Roman Catholic Church’s significant role in world societies. Within the volume, a series of essays on ministry explores various perspectives not frequently heard within the church. Marriage equality and the treatment of LGBTQ individuals by and within the Roman Catholic Church are considered from the vantage points of law, ethics, and theology. Themes of language and discourse are explored in analyses of the place of sexual diversity in church history, thought, and authority.

The two volumes of More than a Monologue, like the conferences from which they developed, actively move beyond the monologic voice of the institutional church on the subject of LGBTQ issues, inviting and promoting open conversations about sexual diversity and the church. Those who read Inquiry, Thought, and Expression will encounter not just an excellent resource for research and teaching in the area of moral theology but also an opportunity to actively listen to and engage in groundbreaking discussions about faith and sexuality within and outside the Catholic Church.

UK Supreme Court: Religion Does Not Require God

Last week, the Supreme Court of the United Kingdom–since 2009, the highest court in the UK–handed down what looks to be a significant decision on the meaning of “religion” in English law. The decision suggests that, for legal purposes, religion does not require a belief in God.

The case involved a couple who wished to marry in a Scientologist church in London. Under English law, marriages performed in a “place of religious worship” are considered valid. Nonetheless, the couple faced a problem. In 1970, an English court concluded that Scientology is not a religion, because Scientology does not hold a belief in God. So, when the couple sought to have their church certified as a place where marriages might take place, the relevant government official refused: if Scientology is not a religion, a Scientologist church cannot be a “place of religious worship.” The couple then sued.

Last week, the Supreme Court sided with the couple. The 1970 opinion was wrong, the court held. Scientology is indeed a religion. For one thing, Lord Toulson’s opinion explained, Scientology does hold a belief in a supreme deity, albeit an impersonal and abstract deity. Anyway, belief in a deity is not necessary. Religion, Lord Toulson wrote, means:

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system…. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the sense or from science.

On this definition–and Lord Toulson made clear he was not announcing a categorical test for all circumstances–Scientology qualifies as a religion. The court ordered the government to certify the couple’s church as a place where valid marriages could take place.

There’s a lot going on in Lord Toulson’s opinion, and I can’t do it justice in a short post. Three observations, though. First, it seems entirely correct to say that “religion” does not necessarily mean a belief in God. Some versions of Buddhism do not hold a belief in a deity, for example, and it would be very odd to have a definition of religion that excluded Buddhism. I don’t know enough about Scientology to know whether it should be considered a religion, but the fact that it is not conventionally theistic shouldn’t be dispositive.

Second, it seems correct that religion must have some supernatural component. Otherwise, religion collapses into philosophy. Of course, we might protect strong secular convictions in addition to religion. In fact, the European Convention on Human Rights protects both religious and secular convictions. But the relevant English law in this case speaks of “religious worship,” not “secular convictions,” and pretty much everybody knows the difference between the two. It doesn’t do any good to pretend a law is vaguer than it is.

Finally, note Lord Toulson’s insistence that religion involves a group of adherents. This is very significant. Religion is inherently communal, and some of the most important benefits the state derives from religion–for example, greater civic participation–depend on religion’s being a group activity. In America, some people have begun to argue for a very individualistic definition of religion, one in which a sole practitioner, following her own inner voice, can qualify as a religion for legal purposes. Earlier this year, a federal appeals court rejected this view, and there are good reasons to do so. I’ll have more to say about all this is a forthcoming paper, to be published next month by the European University Institute. I’ll post more on this subject then. 

The case is R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages (Dec. 11, 2013).

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United Statesthe famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Continue reading

More on That Jewish Divorce Case in New Jersey

A couple of weeks ago, I posted about the FBI’s arrest of two rabbis who allegedly orchestrated the kidnapping and torture of dozens of men in New Jersey. The rabbis allegedly did this in order to force the men to consent to their wives’ requests for divorce under Jewish law. Under Jewish law, a woman cannot unilaterally divorce her husband; the husband must give permission, or a get. If he refusesthe wife becomes a chained woman, or agunah, who cannot remarry.

The women in these cases were apparently desperate for Jewish divorces and took extreme measures to obtain them. They allegedly paid the rabbis tens of thousands of dollars to convene Jewish law tribunals and issue decrees allowing violence against the recalcitrant husbands. The rabbis then allegedly arranged for thugs to torture the husbands until the husbands granted the gets. This conduct would obviously be criminal under US law and the rabbis will not be able to escape punishment by arguing that their religion authorized what they did.

I expressed doubt in my post that ordering violence against a recalcitrant husband would be consistent with Jewish law. It turns out that I may have spoken too soon. My friend Michael Helfand  at Pepperdine University, an expert in Jewish law and occasional guest here at CLR Forum, explains in the The Forward that “the use of violent sanction in these circumstances has been a feature of Jewish family law for millennia.” Under traditional Jewish law, he writes, if a husband refused to comply with a tribunal’s judgment and give his wife a get,

the rabbinical court could authorize the use of violent force against the husband. While divorces [could not] be executed under duress, it was simply unimaginable that a husband would so cruelly leave his wife trapped in a nonfunctional marriage. Thus, force simply served as a vehicle to free the husband’s inner desire to do the right thing and grant his wife a divorce.

Michael doesn’t advocate this practice, I hasten to add, and he notes that the strong implication of bribery would likely invalidate the religious decrees in the New Jersey cases. In fact, Michael advocates a very American fix for the problem of agunot–a prenuptial agreement. (Michael wrote about the topic here at CLR Forum back in March). The Beth Din of America, a major Jewish law tribunal in the US, has adopted a model prenup “that requires a husband to provide his wife with a daily support payment, typically $150, for each day the two no longer live together and the husband still refuses to grant his wife a religious divorce.”

The prenup is not a panacea. A wealthy husband could make the payments and refuse to give a get, and a wife without such a prenup wouldn’t benefit at all. But the prenup might help some agunot, and wouldn’t require kidnapping one’s husband and torturing him. It’s like they used to tell us in law school: In America, when the going gets tough, the tough contract out. 

Tarabey, “Family Law in Lebanon”

9781780765624Next month, Macmillan will publish Family Law in Lebanon: Marriage and Divorce Among the Druze by Lubna Tarabey (American University of Beirut). The publisher’s description follows.

Much of the life and ritual of the Druze in Lebanon appears mysterious to outsiders, as this esoteric sect remains closed to non-members. Lubna Tarabey, herself a member of this secretive community, is ideally-placed to offer insight into the family life, tradition and religious practices of the Druze. She reaches back to the 1970s, and the start of a civil war that shattered Lebanon along confessional lines, to explore how the substantial social and political changes that have shaken the country have affected marriage and divorce practices. Through extensive research, she approaches a complex web of change and continuity, of traditional values competing with enhanced individualism and personal freedoms. In Lebanon, family law falls under the authority of its religious courts, and Tarabey traces the ways in which social and legal developments have impacted family law and the internal cohesion of the Druze.

Pew Report on American Jews: Kind of Like Everyone Else

The Pew Religion and Public Life Project released its most recent survey yesterday, “A Portrait of Jewish Americans.” It turns out that Jews, who make up a little less than two percent of the population, mirror larger trends in American religious life. For example:

  • The Rise of the Nones: More and more American Jews say they have no religion–that is, they view their identity as ethnic or cultural. According to Pew, 22% percent of American Jews now qualify as “Nones.” This percentage is close to the percentage of Nones in the general population (20%). As with the general population, religious disaffiliation is more pronounced among Millennials (ages 18-29). Here the numbers are exactly the same: 32% of Millennial Jews say they have no religion, the same percentage as among Millennials generally.
  • Increased Intermarriage: In their 2010 study, American Grace, sociologists Robert Putnam and David Campbell estimate that something like half the marriages in America today are religiously mixed. For Jews, the rate of interfaith marriage is similarly very high. Indeed, according to Pew, the majority of Jews who marry today choose non-Jewish spouses.
  • Religious Politics: As many observers have noted, the key political divide in America today is not between religions–Catholics vs. Protestants–but between people who are religious, in any faith tradition, and people who are not. People who are religiously active tend to vote Republican, and people who are not religiously active tend to vote Democrat. A similar pattern holds true for American Jews. As a whole, Jews favor the Democratic Party by more than three to one. For Orthodox Jews, however, the trend is reversed: 57% of Orthodox Jews are Republican or lean Republican, while only 36% of Orthodox Jews are Democrat or lean Democrat.

You can read Pew’s summary of the survey here.

Stark, “America’s Blessings”

I spent last weekend reading Baylor University sociologist Rodney Stark’s most recent book, America’s Blessings: How Religion Benefits Everyone, Including Atheists (Templeton Press 2012). I’ve benefited greatly from Stark’s work in the past; the book he wrote in 2005 with Roger Finke, The Churching of America, is a must for anyone interested in the history of American religion. America’s Blessings is very helpful, too. It puts into context the results of some recent surveys on religion in America.

For example, Stark explains that, although the number of persons who tell pollsters they have no religion has increased since 1990–the much-discussed Rise of the Nones–the number of people who belong to religious congregations has gone up as well. In fact, about 70% of Americans now belong to religious congregations, the highest percentage in our history. (One possible explanation: some Evangelical Christians who are members of free-standing congregations, without denominational ties, do not think they belong to a “religion”). Many of the Nones are quite religious; they pray frequently. Only a small group of Americans, around four percent, say they are atheists–a percentage that hasn’t changed in several decades.

Stark also shows that the academic literature routinely ignores evidence of religion’s beneficial social effects. For example, he says, reliable statistical studies show that religious people are much less likely to commit crimes, much more likely to contribute to charities, including secular charities, and more likely to say they have satisfying marriages. Findings like these almost never appear in the scholarly literature–or in the media, for that matter.

Some of these claims do seem stronger than others. For example, the claim about the lower propensity of religious people to commit crimes seems robust, as it is based on objective data about crime rates.  The claim about marital happiness, in contrast, doesn’t seem so compelling, at least to me, since it relies on what people tell surveyors about their marriages. It’s true that people who attend church regularly are more likely than non-churchgoers to say their marriages are “very happy,” but perhaps that’s because of social pressure. The churchgoers may feel they’re expected to say positive things about their family lives. In Stark’s defense, regular churchgoers also have a much lower divorce rate than people who never attend church, and that is an objective measure.

In any event, Stark’s new book is a valuable contribution to the burgeoning empirical literature on religion in America. Worth reading.

Kent Greenfield on Same-Sex Marriage and the Slippery Slope

A post on the American Prospect site by Boston College law professor Kent Greenfield is getting a lot of attention, especially from opponents of same-sex marriage, like Princeton’s Robert George, who believe the Left has been unfairly maligning them as scaremongers for years. Greenfield, who supports same-sex marriage, thinks it’s time to confess something: Conservatives who argued that recognizing same-sex marriage logically implied the recognition of incestuous and polygamous marriages were right all along:

You know those opponents of marriage equality who said government approval of same-sex marriage might erode bans on polygamous and incestuous marriages? They’re right. As a matter of constitutional rationale, there is indeed a slippery slope between recognizing same-sex marriages and allowing marriages among more than two people and between consenting adults who are related. If we don’t want to go there, we need to come up with distinctions that we have not yet articulated well.

Greenfield attempts to come up with distinctions–moral opprobrium, child welfare, coercion, the immutability of sexual orientation, lack of representation in the political process–but concludes that none of them really works. Here’s his final paragraph:

If these distinctions do not hold water, we have two options. We can continue to search for differences that make sense as a matter of constitutional principle. Or we can fess up. We can admit our arguments in favor of marriage equality inexorably lead us to a broader battle in favor of allowing people to define their marriages, and their families, by their own lights.

A signal of marriage wars yet to come.