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If a Maine law permitting same-sex “marriage” is not struck down, church organizations could have their tax-exempt status stripped because of conscientious objections to the practice, says a Boston College Law School professor.
BY CARLOS BRICEÑORegister Correspondent
BOSTON — Scott FitzGibbon, a
professor at Boston College Law School, recently appeared in radio and
television ads sponsored by Stand for Marriage Maine to support a veto of
The ballot initiative is a people’s
veto of LD 1020, a law passed by the Maine Legislature earlier this year
legalizing same-sex “marriage.”
By vetoing the law, Maine voters
would protect traditional marriage by preserving the definition of marriage as
a union between a man and a woman and would protect children from being taught in
schools that same-sex “marriage” is the same as traditional marriage,
regardless of parental concerns.
In the ad, which can be accessed at
StandforMarriageMaine.com, FitzGibbon warns that if the law remains on the
books, individuals, small businesses and religious organizations will face a
wave of new lawsuits, and church organizations could have their tax-exempt
status stripped because of their objection to same-sex “marriage.”
FitzGibbon, responding by e-mail,
emphasized that his comments do not necessarily reflect the views of Boston
Defending traditional marriage
is something you have done for some time. When did your interest in the subject
I have been married for 30 years. I
teach jurisprudence with special attention to close affiliations, and this has
led me to consider the question of the elements of marriage. I am
a convert to Catholicism (from Anglicanism) and take my faith most
seriously, attending Mass just about every day. I am a member of the
International Society of Family Law and have published three or four major
articles on the general subject of marriage and the family.
What points did you want to
make with the Stand for Marriage Maine campaign?
One major reason why I am opposed to
the law’s identifying same-sex persons as “married” is that this is simply not
the case. The law should speak the truth and not lapse into mendacity.
Doubtless there are some terms and
categories that the law makes and unmakes by fiat, but this is not the case
with marriage, which is an institution with a meaning and importance
independent of the law: a standing ordained by custom, social practice,
extended-familial recognition and religion.
I have a full-blown article posted
on Social Science Research Network just this year on the law’s duty to speak
with veracity and respect. A cavalier reconstruction of society’s categories of
familial relations is neither truthful nor entirely respectful of the members
of society and their social forms.
Experience in Massachusetts and
other jurisdictions indicates that judges and other legal officials can only
recognize same-sex relationships as marriages by loosening and plasticizing the
definition of marriage. They sometimes reflect this plasticization by
identifying the basic components of marriage as feelings or emotions. A court
signals its readiness to endorse further instability in the legal definition of
marriage when it states, as did the Supreme Judicial Court in the Massachusetts
same-sex “marriage” decision, that “marriage is an evolving paradigm.”
It is not unlikely that the
“paradigm” as understood by judges with this approach will evolve further to
encompass polygamy and other unusual relational structures.
A respected Boston columnist, in the
wake of the Goodridge [v.
Dept. of Public Health] decision, predicted
the legalization of polygamy. (Jeff Jacoby, “Is Legal Polygamy Next?” in The
Boston Globe, Jan. 5, 2004. Another article by Jacoby, entitled
“Misunderstanding Marriage in California,” appears in The
Boston Globe on May 21, 2008.)
A leader of the ACLU [American Civil
Liberties Union] has expressed support for its legal protection. A further
development logically follows if feelings are the key to defining marriage.
That development — supported by an advocacy website and by some academic
commentary — is “group marriage” involving more than one person of each sex
In contemplating any substantial
change in the recognition of marriage, the overarching question must be the
effects on children. Children develop morally largely by a process of modeling
— as common sense suggests and social-science literature establishes. Therefore
the development of the next generation of Americans is closely at issue when
the adult world identifies and commends models for parenting.
The model of a man and a woman in an
aspirationally permanent and exclusive relationship is uniquely meritorious in
this respect. I develop this thesis at length in my recent article “Procreative
Justice and the Recognition of Marriage,” which is available online.
A key point here is that most
children will grow up to attempt a lasting relationship with a person of the
opposite sex. This is not an easy project to perform successfully, especially
in our fluid age.
Statistics establish that those who
lack a corresponding model in youth (e.g., because of the divorce of their
parents) are far less likely to make a go of marriage themselves. (Studies also
establish an extension of this point: Split marriages pass the difficulty in
sustaining successful parenting relationships along to yet another generation.)
A child brought up by two men lacks
a model of how he may sustain a committed relationship with a woman, or — if
the child is a girl — how she may successfully sustain a lasting, faithful
relationship with a man.
You have encountered some flak
from some of your colleagues and others at Boston College for doing the ad on
They are entitled to their opinions.
Carlos Briceño writes