Distinguishing Between Roman Catholic Theology and Civil Law in the Struggle for Marriage Equality

Eileen A. Scallen is a professor at the William Mitchell College of Law in St. Paul. In today’s Star Tribune she has a very insightful commentary published in response to Archbishop John Nienstedt’s recent call for a “marriage amendment” to the Minnesota Constitution that would ban same-sex marriage.

In her commentary, Scallen not only distinguishes between Roman Catholic theology and civil law – a distinction lost, it would seem, on Archbishop Nienstedt – but also argues that if other churches perform same-sex weddings, those should be recognized by the state. In other words (and please note these are my words), why should Roman Catholic marital theology (key aspects of which the majority of married Catholics themselves dissent in good conscience from) be given special status to call the shots on civil society's understanding and administrating of civil marriage rights?

Scallen’s commentary is reprinted in its entirety below. (To read responses to Scallen’s commentary by Star Tribune readers, click here.)

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Who Says Catholics Run Marriage?

By Eileen A. Scallen

Star Tribune
May 5, 2010

The bloom was not off the long-stemmed red roses my “life partner” bought to honor the April 17 anniversary of our “commitment,” 11 years ago. I loved seeing the morning sunshine on those roses.

Then I read the Archbishop John C. Nienstedt’s commentary (“Let’s Protect the Meaning of Marriage,” April 28) raising, once again, the demand for a state constitutional amendment banning same-sex marriage. I was puzzled; the archbishop raised no new arguments. Why this topic? Why now?

My imagination took off, thinking about all the letters to the editor and counterpoints being written in response. Some might be pointed (“Tired of talking about child abuse, Archbishop?”); some sarcastic (“To protect marriage, let’s pass a constitutional amendment banning divorce”); some might attack his facts (“It isn’t just divorce that pushes women and children into poverty – or why wouldn’t divorced men and their children fall, too?”), and some might question his priorities (“Why bring this up again now when there are so many other problems?”). And then I thought about my own response.

The archbishop is worried that my long-term same-sex relationship might one day be a “marriage” because marriage “exists in civil law primarily in order to provide communal support for bringing mothers and fathers together to care for their children.” Actually, that is the primary purpose of marriage according to Catholic theology – not according to civil law, and not according to other religions.

Nienstedt’s arguments are rooted in Catholic doctrine. He suggests society was wrong to allow “no-fault” divorce. One can debate the accuracy of his statistics, but not his theology – the U.S. Constitution gives him control over that turf.

To use his example of divorce: The Catholic Church treats marriage as a sacrament. Thus, it refuses to recognize a divorce under the civil (non-church) law. As a law professor, I know that thanks to our constitutional freedom of religion, no Catholic priest has ever been – or ever will be – forced to perform a marriage for a divorced couple. We may not agree with Catholic theology, but the law cannot force us to adopt it or any other particular religious belief. Or can it?

My life partner and I consider ourselves religious. We didn’t just “consent” to be together, as the archbishop puts it. We put our faith in our relationship. We chose each other, even if we didn’t choose our sexual orientation. We believe we were meant to be together just as deeply and sincerely as the archbishop believes he is meant to be a Catholic priest.

Eleven years ago, we expressed our faith in each other, quietly and intimately – without our families’ delight (but, thankfully, with their acceptance); without the 1,000-plus federal and 500-plus state rights associated with marriage, and, most sadly, without religious blessing.

Today, there are many Christian denominations that would perform our same-sex marriage and other long-established religions that would, too. But the federal and Minnesota governments won’t recognize those religious marriages, even though they will recognize Catholic marriages. Why isn’t this religious discrimination?

Nienstedt presents no reasonable basis to justify why his religious beliefs trump those of other long-established religions. The Catholic Church has the right to determine who receives its sacrament of marriage. Those marriages are given government recognition for all sorts of purposes, both big (Social Security benefits or hospital visitation rights) and small (obtaining family fishing licenses). It is religious discrimination to deny my partnership and the religions that would perform our marriage ceremony the same religious freedom and respect.

Could it be that the archbishop wrote his column because he realizes that real freedom of religion is coming? I believe that someday my partner and I will have the freedom to marry each other in Minnesota. Then I won’t have to explain how happy I was to be “committed” years ago. We won’t have to be “unionized,” civil or otherwise. We will be married – no more quotation marks needed because everyone knows what that means. Hopefully, we will be married in a church. We’ll invite the archbishop, but we can’t make him come to the wedding. That’s OK – a higher power will be there.

Eileen A. Scallen, of Minneapolis, is a professor at the William Mitchell College of Law.


See also the previous Wild Reed posts:
Archbishop Nienstedt Calls (Again) for a Marriage Amendment to Minnesota’s Constitution
Archbishop Nienstedt’s Unconvincing Argument
Archbishop Nienstedt Has It Wrong
At UST, a Rousing and Very Catholic Show of Support for Same-Sex Marriage
Minnesotans Rally for Equality and Love at the State Capitol
A Catholic Voice for Marriage Equality at the State Capitol
A Christian Case for Same-Sex Marriage