Wrong Lessons Learned

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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  • Ars Artium

    Such Silence
    I had read nothing about this matter until today. Perhaps there were carefully reasoned letters to editors but I saw none. Perhaps someone raised the alarm that the barbarians are now at the gate but I did not hear that person. Such a silence! Such a shameful silence from those at Boston College who might have used this situation to advocate for the truth.

  • Deborah

    Rational presuppositions?
    It seems to me the rationality of this argument presupposes that the sole purpose of marriage is procreation. It may be. But in this country legal marriage provides other benefits unrelated to procreation. Should those benefits also be denied to gays on the basis that the purpose of marriage is procreation? Or should we further complicate the legal system by adding new laws to provide those benefits to gays?

  • Bill

    Rational Justice
    O judgment! thou art fled to brutish beasts,
    And men have lost their reason.

  • Mike

    Who will stand
    I will bet there many more people who hold professor Fitzgibbon’s view than are willing to admit it. Why is that?

  • Adam

    the gloves are off
    Demands for ‘tolerance’ always betray the tyranny-in-waiting just below the surface. Here the ‘tolerant’ at BC bare their knuckles and come forth with fascism – You will be tolerant, or else! My prayers are with Prof. Fitzgibbons.

  • Adam

    other lessons…
    Another MAJOR fallacy learned by way of the successes of the Civil Rights Movt, is that the state has the ability to grant and rescind “rights,” when this is precisely the opposite of the truth. A govt is established to protect rights – which pre-exist and transcend the state. There has been valuable discourse on “rights language” in recent years, and it correctly exposes the ways in which the demand for the establishment or regonition of a “right” imposes new and injurious demands on society.

  • Martin

    Deborah is determined to ignore the nature of man, what God has revealed of himself, what the Magisterium teaches, and common sense, all because of an agenda that trumps everything. That agenda is called “liberal” but it is really simply relativism which recognizes no truth but that which the individual, with self-pride, asserts.

  • diosthenes

    Free expression
    If you’re going to defend Scott Fitzgibbon’s right to speak out despite pressure to the contrary, then I wonder how the church defends CatholicVoteAction.org’s heavy handed effort to silence equally brave Catholic Yolande Dumont’s position in support of her son.

  • gary47290

    The right lessons learned
    Sexual orientation is immutable in all scientific understanding, and protecting equality for the minority (Gay and Lesbian persons) has no harm to anyone. Therefore, discrimination on sexual orientation is irrational. Further: the social benefits of marriage apply equally to Gay and straight couples. Marriage civilizes and domesticates, a good outcome for all. Only if you require procreation to get married (and annul childless couples’ marriages) can you defend the ban on same sex marriage.

  • wood rogers

    I don’t actually think, if you look closely, that Americans (or at least some) believe it is wrong to judge people on the basis of the color of their skin (see Affirmative Action). AA, even though it is a systematic practice of discrimination as elaborate as Jim Crow, is considered good because it utilizes discrimination as a means toward achieving equality. This is the real evil for many Americans, not discrimination (which is morally neutral in itself) but inequality.

  • Achilles

    Gary: Aside from overly rigid linear lines of scientistic thought, the assumptions that undergird your assertions are faddish at best, ignorant of Truth at worst. It would take far more than 500 characters to initiate the conversation.
    Deborah, Flannery O’conner said “sentimentality is to Religion as pornography is to art.” The Truth doesn’t bend to our personal preferences and especially not to our “feelings.” “[F]urther complicate the legal system?” This is your excuse for tolerance?