Working Paper No. 14-14:
A “Bare … Purpose To Harm”? Marriage and Catholic Conscience Post-Windsor
Date Posted: May 2014
Abstract (below) | Full text (most recent) on SSRN
In United States v. Windsor, while the Supreme Court did not treat the question of religious exemptions from state laws recognizing same-sex marriage, the case could nevertheless affect the success of future efforts to attain religious exemptions. Windsor strongly suggested that any view of marriage excluding the possibility of same-sex unions is irrational and even hateful. Religious institutions and individuals, however, particularly the Catholic Church, are leading proponents of the view that opposite-sex marriage is uniquely valuable. Also for Catholics, this view forms a central and nonseverable part of a theological worldview encompassing teachings about matters such as the identity of God, and the meaning and purpose of life as servant love. Refusing to exempt Catholics from cooperating with same-sex marriage is therefore tantamount to denying them the right to practice their faith, or even insisting that they practice a different faith.
In order to address the matter of religious freedom in the context of state-recognized same-sex marriage, post-Windsor, this article will proceed as follows: Part I. will set forth Windsor’s treatment of the nature of marriage and its characterization – as “animus” – of a refusal to recognize a marital union between two persons of the same sex. Part II. will set forth the elements constituting the cosmological and anthropological significance of Catholic teachings about marriage. Part III. will discuss the benefits offered to a pluralistic society by its continuing to allow a visibly Catholic witness on marriage. It will also acknowledge practical hurdles to such a resolution.