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By Edward F. Mitchell in San Francisco - 15 April 2013

3. You have said that legalization of homosexual marriage is in some way the same as, or in an important way analogous to, the legalization of male breast-feeding. You further have explained that you made this remark to underline/emphasize the "unnaturalness" of homosexual marriage, in the same way, I suppose you meant, that male breast-feeding is unnatural. Having been asked to reconsider this statement and possibly to apologize for it, you have said that you have considered it further, that you think it is a correct, logical, and germane point to make, and that you have no apology to offer for it.  I am puzzled, first of all, by the factual assertion implicit in your statement – i. e., that breast-feeding by males is illegal, and that a proposal to make it legal therefore is analogous to the proposal to make same-sex marriage legal.  But I am unaware of any law against male breast-feeding, in our society or in any other, and, so far as I know, there can be no meaningful proposal to legalize something that is not illegal or about to become illegal.

San Francisco, for example, has no ordinance prohibiting me from keeping the Pacific Ocean or Siberia in my garage.

I also am puzzled by the logic of your analogy. If you want to say that if a male could breast-feed a child you would outlaw the practice (as your analogy suggests), then what is it about the "unnaturalness" of such hypothetical male breast-feeding that would warrant its prohibition – is it the same "unnaturalness" that should counsel us to ban same-sex marriage?  Would you or the Church, on the ground of unnaturalness, withhold from a hungry infant milk that, by whatever medical miracle or Act of God, came from a male breast, and why would one want to do that? 

The analogy and logic also both seem confusing or less than apt for a third reason: for all practical purposes, male breast-feeding is not possible, so there is no practical reason to legislate against it.  There is no movement by fundamentalists to ban male breast-feeding, it would seem, because no one is doing it and, so far as I know, no one can. San Francisco, for example, has no ordinance prohibiting me from keeping the Pacific Ocean or Siberia in my garage. But it is precisely because homosexuals are getting married that you have become alarmed and militant in the very florid and, some have said, strident expression of your views on the subject. It was the actual issuance of very real California marriage licenses to same-sex couples, and the stark reality of same-sex marriage ceremonies, that sparked the movement to ban same-sex marriage in California by referendum and, I would infer, caused you to throw your weight and that of the Catholic Church so strenuously behind Proposition 8, now before the United States Supreme Court. You are fighting against real, committed same-sex couples and against the prospect of more real same sex-marriages. Is this not very different from legislating against theoretical male breast-feeding, something that does not exist and is, for all presently practical purposes, impossible?


4. You have said that if homosexual marriage is permitted there is no principled distinction to draw between the marriage of two homosexuals of the same sex, on the one hand, and the marriage of many homosexuals within the same marital union, on the other. In this, it seems, you share the concerns of former Senator Santorum, who has prophesied that same-sex marriage will open the door both to polygamy and, as he puts it with his usual élan, to man-on-dog sex. (I hope you would agree that the logical or practical connection between same-sex human marriage and man-on-dog sex is elusive. Although bestiality has existed in nature for millennia, and actually is quite prevalent – much more than is generally recognized or publicly acknowledged – throughout the American South and Midwest, I am unaware of inter-species sex ever leading to any inter-species marriage, or the other way around, nor am I aware of any moral framework within which heterosexual bestiality is treated differently from homosexual inter-species sex. Although Senator Santorum sees a causal link between same-sex human marriage and bestiality, evidence of the link is hard to come by, and it is difficult to follow his reasoning.) 

Your assertion of a causal link between same-sex marriage and polygamy begs the question: what is it about a same-sex marriage that may make it more conducive to multiple parties than would be an opposite-sex marriage? My understanding is that polygamy, common in the Old Testament, in pioneer Utah, and more common among Christian fundamentalists than among the general population, has been almost exclusively a heterosexual phenomenon and most prevalent among intensely religious participants. One does not read or hear about homosexual polygamy, undoubtedly in part because if a homosexual cannot marry one other homosexual of the same sex, he/she cannot marry many of them in the same union. But your central point that eludes my understanding is: what is it about a same-sex marriage that would lend itself to polygamy more readily than would a heterosexual, opposite-sex marriage? What evidence do we have that this is the case?


5. You have said that legalization of same-sex marriage will damage the institution of marriage, especially by weakening the incentives for heterosexuals to marry one another. I have had no success at all in locating the factual or logical foundation(s) for this proposition. Is there evidence that heterosexuals marry one another less frequently in jurisdictions that recognize same-sex marriage than in jurisdictions that prohibit it? Is there evidence that the rate of heterosexual marriage drops to a statistically significant degree in jurisdictions that legislate the legality of, or judicially recognize, same-sex marriage, and that these reduced rates of heterosexual marriage are causally attributable to the permission extended to homosexuals to marry members of their own sex?  I have searched for any evidence of these phenomena and have found none at all. 

Quite apart from the apparent absence of any empirical evidence that an increase in same-sex marriage is accompanied by and causes a reduction in opposite-sex, heterosexual marriage, I am unable to find in your own writings, speeches, and interviews an explanation as to why it should be expected that your hypothesis (or unsupported statement of fact) would be borne out in the event. 

Let us postulate a heterosexual couple in love and wishing to marry, even planning to marry. After their engagement, the jurisdiction in which they live enacts legislation permitting members of the same sex to marry one another.  You tell us we should expect our affianced heterosexual couple to call off their engagement and cancel their wedding.  Assuming (without evidence, but for argument’s sake) that this would be so, why would they do this?  If we could approach and question young heterosexual, opposite-sex couples who had made this decision and ask them why the legalization of same-sex marriage had caused them to rethink and cancel their own, how would they answer? Would they say that they do not want to participate in an activity or take on a status which homosexuals also are permitted?  If so, would they, on this ground, also decide against going to a baseball game, or against dining in a good restaurant, or against acquiring a driver’s license, or against taking a college degree, or against entering a profession (law, medicine, or the clergy)? 

Have you explained or can you or other opponents of same-sex marriage explain why heterosexual marriage would decline in the face of lawful same-sex marriage, and how opposite-sex newlyweds-to-be would account for their changes of heart? 

There is, too, another, less quantifiable, consideration that would seem to stand in counterpoint to your hypothesis – it is the notion, emanating in modern form from the Enlightenment but with its roots in both classical antiquity and the Judeo-Christian tradition, that the diminishment of one man or woman is a diminishment of humankind.  The idea, of course, has been variously expressed ("If a clod be washed away by the sea, Europe is the less", from so authentically devout an Anglican as could write, "That I may rise and stand, o’erthrow me, and bend/Your force to break, blow, burn and make me new") and finds its jurisprudential manifestation in the United States in the homage we pay to universal due process and equal protection of the law. If this important theme in Western civilization has truth value or practical meaning, would it not suggest that a prohibition of civil marriage that runs specially/only against an identifiable class of citizens based solely on their status also might pose a hazard to the institution of marriage, perhaps even a greater danger than that certain opposite-sex couples might decide not to marry if same-sex couples are permitted to? 

The evidence of my experience is purely anecdotal, of course, but I have known many, many married heterosexual couples, and it would not have occurred to one of them to decide not to marry because two people of the same sex down the hall, or down the block, or across town could, or had decided to, marry.  Is it possible that the rule of celibacy plays a role with respect to this difference in perception – that is, that Catholic priests in particular may in many cases lack personal familiarity with the ordinary motivations that powerfully carry couples, both heterosexual and homosexual, into marital commitment with so little attention to who else is getting married?  Have you actually encountered in your pastoral work young couples who called off their own weddings because a same-sex couple had wed somewhere?  If so, did you concur in or bless their judgment to forego a life of committed intimacy, perhaps the greatest gift a human can enjoy, because of what someone else did or was at least permitted to do in Ottawa or Oslo, or in Madrid or Capetown, or in His Holiness Francis I’s home town of Buenos Aires, or in the Sodom and Gomorrah of the American colonies, Boston and Springfield?  (I note that Massachusetts, the first American jurisdiction to recognize same-sex marriage, recently has had the lowest divorce rate among the several states; what might this say about the direct correlation you assert between the lawfulness of same-sex marriage and a general retreat from opposite-sex marriage?) 


6. Among those in the Catholic Church hierarchy who believe that homosexual sex (not to mention marriage) is unnatural, is there also a belief that celibacy is natural in a way that homosexuality is not?  If so, upon what ground/criterion would the differentiation rest?  Since celibacy is rare (apparently more so among the Catholic priesthood, and even the Church hierarchy, than we previously had supposed), it cannot be the usualness or predominance of celibacy that would render it "natural."  If rarity renders a practice "unnatural," why would not celibacy be at least as unnatural (since less common) as homosexuality, and if rarity is not the criterion by which unnaturalness is discerned, then what are the factors that render one less-common practice "unnatural" while the other remains simply "rare"?

This conundrum seems to be complicated by the fact that the naturalness of heterosexual marriage is inextricably bound up, in your own and many others’ logic and rhetoric, with procreation. But if one must procreate to be natural, are not priests and bishops who actually do practice celibacy then, in some sense, engaged in "unnatural" practices? 

And what of heterosexual marriage in which the spouses cannot, or have no intention to, procreate – should such marriages be illegal?  Would it not logically follow that vasectomies, hormonal therapies, and other forms of birth control should be illegal under the civil law, like homosexual marriage and male breast-feeding, and not merely condemned by the Church alone? Does the Church or do you take the position that birth control should be illegal under civil law because it interferes with procreation, as does same-sex homosexual marriage?  Or, as one of the Justices asked counsel in oral argument last month in the California Proposition 8 Supreme Court oral argument, should marriages between persons over the age of 55 be prohibited under the civil law and condemned by the Church on the ground that the statistical likelihood of procreation within such marriages is, both as a matter of demographic/population policy and in light of the Church’s understanding of the very purpose of marriage, intolerably low or non-existent?


7. I noticed that you recently told an assembly outside the United States Supreme Court that only a man can be a father; that only a woman can be a mother; and that each child has the right to both a mother and a father. These truths, you said, require a civil prohibition of same-sex marriage. I take it that you were not asserting that there is a legal right to opposite-sex parents because an American child, of course, does not, in fact, have an enforceable legal right to a mother and a father. If she did, she could, through a guardian ad litem, intervene in her parents’ divorce proceeding to prevent dissolution of her parents’ marriage, or could commence a proceeding in equity to compel a single parent to marry. So, in the absence of such a legal right (which, under current Constitutional and federalism jurisprudence either would have to newly-emanate from each state or be established by a federal Constitutional amendment), what are the source(s) and nature of a child’s right to a mother and father, and when should these rights come into existence? If creation, recognition, and protection of such rights are the real justification for prohibition of same-sex marriage, do you also argue for an outright ban in the civil law against divorce of opposite-sex parents during the childhood of their offspring, and for the prohibition of single parenthood until children reach majority? If you seek to create or vindicate a perceived right in all children (and your pronouncements on this subject seem to extend this right to possible, yet-to-be-conceived "children" as well as to real ones), why do you select only one condition or circumstance (same-sex marriage) that might lead to child-rearing by a parent or parents who are not a mother and father of opposite sex?  Should two divorced or widowed heterosexual fathers or mothers, for example, each with custody of a child from his or her previous opposite-sex marriage, be prohibited from living in the same home and raising their children together if both parents are male or if both are female?

Very truly yours,
Edward F. Mitchell

Photo: Archbishop Salvatore J. Cordileone

Edward F. Mitchell is a practicing attorney in San Francisco. He holds an A. B. degree from Yale College and a J. D. degree from Boston College Law School. He is experienced in federal Constitutional litigation and appeals of Constitutional questions in the federal judicial system, and has successfully briefed and argued appeals in the United States Courts of Appeals for the Ninth and Tenth Circuits. Mr. Mitchell is general counsel for Culturekiosque. 

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