An Immodest Marriage Proposal
Both in the US and overseas (the debate in UK and in Australia are helpfully summarized here) debates about whether or not to redefine marriage to include same-sex couples has generated a great deal heat but very little analytical light. This is why I think a recent post by the Roman Catholic canon and civil lawyer Edward Peters is especially helpful (here).
He begins with a brief legal analysis of the legal and existential differences between “union” and “marriage.” While his concern is the response of the Catholic Church to changes in civil martial law, I think his observations are applicable to Orthodox Christians, Protestants and people of good will who reject recent innovations in civil marriage laws:
Ancient Christians, offered the choice between burning incense to honor the divine Augustus or dying a slow painful death, had to choose the slow painful death if they wanted to remain faithful to the true God. But suppose, instead of burning incense to honor Caesar as a god, ancient Christians could have burned incense to honor him as an emperor. Christians could have burned incense in such cases, as casually as we set ablaze waxen wicks atop a frosted cake to honor a man’s birthday, without fear of scandalizing others. No one thinks the birthday boy is God, and only if some authority begins implying that so-and-so really is a god (think North Korea), and that burning candles in his honor is to acknowledge him as a god, does the matter take on additional meaning. Here, the labels attached to the action domake a huge difference.
Likewise, saying that two persons of the same sex are in a legally-recognized union, whatever else one says about that relationship, is not tantamount to saying that those two persons are married for the simple reason that not every union—even long-term, consensual, sexually-active, economically stable, unions—is a marriage civilly or canonically.
For Peters’ observation to be codified into law, would require (in my view) that the State no longer issuing marriage licenses. Since the State does have a legitimate interest in marriage (even if there is a social debate about its nature), I think it would be better for the State simply to register marriages while remaining agnostic to the exact nature of the union.
How might this work?
First of all a couple could simply register themselves as married according to their own understanding of the institution. Let’s call this a “civil union.” While it would please everyone, this would allow the State to remain legally indifferent as the emotional and/or sexual nature of the union.
To this simple record of fact–“Person A and Person B on such and such a date contracted a civil union”–I would add the option of the couple signing a standard contract that (as Peters observes in his essay) that would spell out the conditions under which they would “share their earnings, have access to each other’s personal records, be covered under each other’s insurance, inherit a preferential portion of the other’s estate, and so on.” Or, they could sign a contract that was in according to their own religious faith.
Or, the couple could sign a contract that reflected the teachings of their own religious faith. What might this look like?
For an Orthodox couple, this could look very much like the standard contract. To this, I suggest including (for example) conditions under which the divorce would be allowed drawn from both secular and canon law. I’ll talk about why this matters in a moment. For now
For now, though, I think the contract would, at a minimum, allow (not require) divorce for the following reasons: apostasy by one spouse, physical abuse, addiction, and the refusal by one spouse to have children.
Though stated in the negative, all of these conditions also reflect expectations that the spouses have for each other and which in the tradition of the Church are the essential building blocks of the vocation of marriage. Faith in Christ, mutual respect and affection, soberity of life and openness to new life. These are, I would hope, uncontroversial for Orthodox Christians.
While many Orthodox Christians are right upset by the recent change in marriage laws, I think the earlier change of “no-fault” divorce is at least as great a moral and pastoral challenge. In effect, civil divorce laws allow the State to insert itself into the life of Church and end a marriage for any reason or indeed no reason at all.
The same voices that (again, rightly) object to same-sex “marriage” were noticeably silent about changes in divorce laws. What should be a rare–and always tragic–event for the couple, the Church AND civil society, has become ordinary and a matter of social indifference.
Yes, as the list above suggests, there are times when divorce is necessary and the Christian tradition has always acknowledged this. However, Christians of all tradition have been so willing to see our understanding of marriage encoded, and so enforced, in civil law that we have overlooked that what Caesar gave with one hand, he took with the other.
We, and by “we” I mean all Christians though especially Orthodox Christians, have long ago accepted the idea that “marriage” is based not on the “laws of Nature and Nature’s God” but merely in human desire. And this we’ve done while simultaneously preaching a sacramental view of marriage that sees the natural vocation raised by the Holy Spirit to be a living icon of Christ’s love for the Church.
The take away for me is this.
Not that we can no longer depend on the modern secular State to support the Orthodox vision of marriage. Rather it is that we never could and never should have looked to Caesar to do for the Church what only the Church could do for herself.
As Christians–Orthodox, Catholic, and Protestant–and people of good will, we need to advocate for laws that allow us at least to pursue a fuller vision of marriage. Such a vision embraces the necessary but insufficient role of mutual consent in marriage. But contemporary divorce laws reduce marriage to whim. They likewise exclude any role for of communities–religious OR secular–in supporting and sustaining marriage as well as holding married couples accountable to their mutual commitment.
Finally, n one of this obviates the role of the State in marriage.The State has a legitimate concern in marriage. While Christians of various traditions think the State has overstepped its authority in expanding the definition of marriage to include same-sex couples, this doesn’t negate the State’s role. What we need to do is what the Church has always done. We must find a way in which we can remain faithful to the Gospel even while acknowledging the State’s God-given role in human affairs.
My immodest marriage proposal, I think, might be a good first step.
Walt Disney, doing his part to limit the number of brown people in the world.
Students are being taught by these postmodern professors that there is no truth, that science and empirical facts are tools of oppression by the white patriarchy, and that nearly everyone in America is racist and bigoted, including their own professors, most of whom are liberals or progressives devoted to fighting these social ills. … [But if] you teach students to be warriors against all power asymmetries, don’t be surprised when they turn on their professors and administrators. This is what happens when you separate facts from values, empiricism from morality, science from the humanities.
Source: Michael Shermer. “The Unfortunate Fallout of Campus Postmodernism“
Orthodox Christians and Economic Freedom
While the idea is open to criticism, I think we can accurately talk about the Church as a “voluntary association.” The Church doesn’t understand itself voluntary in the sense that a secular fraternal organization does. The Church is a voluntary association because we respond freely to God’s grace.
Maybe the clearest example of this is the baptismal service. The candidate (or the sponsor on the candidate’s behalf) freely deny Satan and instead chooses to worship Christ as “King and Lord.”
Moving from theology to law, this voluntary quality of the Church is why laws about freedom of association matter to Orthodox Christians. Laws that compel, or deny, right of citizens to voluntarily join gather together hamper (and might even undermine) the ability of Christians to respond freely to “gather together as the Church” (1 Corinthians 14:26).
Ultimately no government can compel my obedience. Yes, the civil authority can prevent me from gathering with the Church but it can’t prevent me from joining the Church in heaven. In fact, as the martyrs testify, it might even speed me along the way to the latter as it seeks to prevent the former.
That said, it seems to me better to me that the Church has the civil freedom to respond to God’s grace. This means not only the freedom to worship God as we see fit inside the church building but also to evangelize in the Public Square.and shape our personal and professional lives according to the Gospel.
It also must mean the freedom to shape our personal and professional lives according to the Gospel.
Unfortunately, as Jeff Jacobs pointed out recently, “freedom of association has taken a beating in recent decades” especially as it pertains to making economic decisions based on religious convictions or ethical values. ” Merchants and contractors have seen their right to form or avoid voluntary commercial relationships with others steadily curtailed.”
Theologically as much as civilly,”To be free, by definition, is to make choices that others may not favor.” And let’s not be naive, Christians aren’t immune from the temptation to misuse our “freedom of speech and the press, freedom of association.” Christians like everyone else make decisions that “lead to unfairness” for others.
“But over time” freedom of association and economic freedom are generally “far more effective antidote(s) to prejudice and abuse than government coercion can ever be.”
For both Church and State, the freedom to create voluntary associations is “vital.” What we can’t overlook, however, the Church’s freedom to worship and to evangelize is intimately connected with the freedom for ALL Americans to shape their economic lives as they see fit. Just as no “law or court can tell you whom to befriend or what candidate to support or which neighborhood to live in. Neither should the state have anything to say about what company you’re willing to do business with — or whether a company is willing to do business with you.”
Without economic freedom, Orthodox Christians lose the ability to shape a significant portion of our lives according to the Gospel. This is why, even when we disagree on moral grounds with the decisions they make, it is imperative that we defended the economic freedom of others.
For all that this defense of economic freedom of others might seem a distraction from the Gospel, it is nevertheless an important, if admitted secondary, part of the Orthodox Church‘s moral witness.
Diocesan Ownership of Parish Property: Aspirational or Actual?
My response to a recent post on property rights and the Church over at the Acton Institute’s PowerBlog (Protecting private property: The road to sainthood?).
Thanks for posting this. I especially appreciate your pointing out the shared appreciation of the right to property in both Catholic and Orthodox moral teaching.
One of the challenges with the right to property is that this right is typically a bundle of rights. For example, in The Basis of the Social Concept of the Orthodox Church (2000), the bishops of the Moscow Patriarchate affirm the human vocation to labor and right to “the fruits of labour.” The latter includes “the right to own and use property, the right to control and collect income, the right to dispose of, lease, modify or liquidate property” (VII.1).
So immediately, we see that the right to property includes not only (1) actual ownership but (2) use the property, (3) control how the property is (and so isn’t) used, (4) obtain income from the property, (5) sell for profit or donate the property, (6) rent or lease the property, (7) alter the property in some way (e.g., build a house on land I own) or (8) surrender the property in partial payment of debts.
I leave the law to others, but the interesting thing about this bundle of rights is that exercise of any and all of them must be done in conformity to at least to the moral demands of the moral law. What happens though when the exercise of one or more of these rights come into conflict with other rights in the bundle.
Ownership of church property in Ukraine, to return to your post, is anything but straightforward. In addition to competing claims and counterclaims among the various Orthodox jurisdictions, there is the conflict between Orthodox and Greek Catholic communities. I agree with the representative of the Kyiv Patriarchate, Archbishop Yevstratii, that banning the Moscow Patriarchate is counterproductive politically and, more importantly, immoral (here). Adjudication of these claims is anything but easy.
Without prejudice to the Holy Spirit, a just solution to the property conflicts in Ukraine requires a clarity about the canonical control of parish property that we don’t as Orthodox Christians have.
Historically at least diocesan control over parochial property is typically aspirational rather than actual. For example, in traditionally Orthodox countries, the Orthodox Church is an established Church and, as such, the ultimate control of Church property belongs to the State.
Interestingly, from the early centuries, Orthodox monasteries and church buildings were often established as private foundations with the deed for the property held by an individual. This happened throughout the Byzantine era (Byzantine Monastic Foundation Documents). It was done in part to keep monastic and parish communities independent of diocesan, and so Imperial, control.
Diocesan ownership of parish property in the US is more or less established under American law. Typically, the parish holds the deed to the property in trust for the diocese with the latter having ultimate control over the property. In other words, diocesan control is possible in the US because the courts will (usually) support the diocese.
Even in the US, however, bishop rarely exercise control over parish property. When they do it is typically because of either a schism or an unwillingness of the local bishop to allow a parish to leave one Orthodox jurisdiction for another.
This means that in practice, diocesan control over parochial property reflects not just the canonical tradition but (as you allude to) the peculiarities of American law on property and religious non-profits.
(An interesting and profitable discussion could, I think. be had on whether or not the Orthodox Church is a “hierarchical church” as defined by US law. The definition embraces not only the Roman Catholic Church but also mainline Protestant denominations such as the Episcopal Church USA, the Presbyterian Church USA and the United Methodist Church. As an aside, the Catholic Church in the US didn’t actually obtain diocesan control over parochial property until late in the 19th century.)
At least in some states, the Orthodox Church has a hybrid status. We are both hierarchical and congregational. For example, in 1993, the Appeals Court of Massachusetts agreed with the trial judge in Primate and Bishops’ Synod of Russian Orthodox Church Outside Russia v. Russian Orthodox Church of Holy Resurrection, Inc., that the parish “was hierarchical in terms of internal administration, discipline, and matters of faith,” but “congregational as far as the control and use of its property.” The appellate court went on to say that “While the only person who could appoint a priest was the bishop, property and indeed churches belonged to various groups, including tradesmen, nobles, and the Tsars.”
A footnote in the case is interesting and offers a caution to assuming that the American Orthodox Church is necessarily a hierarchical church under US law:
Unlike the Roman Catholic Church, there was evidence that in the Russian Orthodox Church authority was vested in the whole body of the laity as well as with the hierarchy; it was described as “an organic, as opposed to a juridical notion of authority.” There was also testimony that there were congregational aspects in the orthodox faith; in theory the bishop is elected by the people as well as the clergy, and that even in appointing the priest, the bishops would not impose someone upon the parish that the parish did not want (for more on this go here).
Evidently, our eucharistic ecclesiology and emphasis on active lay participation in the governance of the Church look very different to US courts than it does to us. Moreover, the observation that the Orthodox Church has a mixed polity, isn’t unique to the Massachusetts Appellate Court. Though he is critical of this mixed structure, Fr Nicholas Frencez makes an argument similar to that of the Court in American Orthodoxy and Parish Congregationalism.
Returning to the situation in Ukraine, while I think the proposed laws are imprudent, and even arguably immoral, they are not wholly without basis in either the canonical tradition or historical practice of the Orthodox Church. Indeed, they are not without precedent in the practice of the Moscow Patriarchate. In the 1990’s, the Moscow Patriarchate advocated for a position similar that in bill № 4128.
In 1990, a quadripartite commission was formed that included representatives of the UGCC, the Vatican, the Moscow Patriarchate, and the Ukrainian Orthodox Church (Moscow Patriarchate). One of the key points of contention was how to distribute church property. The UGCC insisted on returning churches that were forcibly taken from her in 1946 and transferred to the ROC. Representatives of the Moscow Patriarchate refused to negotiate with the UGCC as an institution that could claim lost property and insisted that the fate of the church buildings should be decided by the communities themselves locally. In other words, individual Greco-Catholics—but not the Church as an institution—could claim the property of their own communities. Following this logic, where most of the community identified as Greco-Catholic, the church building was transferred to the Greco- Catholics, and where the majority was Orthodox, the church building was theirs (more here).
Again, I’m not advocating for the proposed laws. More importantly, I agree with your point that secure, legally defensible property rights serve to secure other rights among them freedom of religion and conscience.
In defense of the right to property in general and of the Orthodox Church’s right to property, we need to be careful, however, that we do not confuse the ideal to which we aspire and the reality that we live. Diocesan, and indeed episcopal, control of parish property is in our canonical tradition. However, this tradition is more complicated than we think. Diocesan control has depended to a greater or lesser degree on the authority of the state and the co-operation of the lower clergy and laity. When the latter is absent, bishops have appealed willing to the former. St Paul’s warning against Christians appealing to civil courts comes to mind here (1 Corinthians 6:1-8).
Without minimizing the all too human elements of the conflict in Ukraine, part of the conflict arises out of the Orthodox Church’s lack of clarity regarding her own practice.
This is why, and I’ll conclude here, both this essay and Orthodox involvement in think tanks like the Acton Institute is of critical importance for the Church. For the first time since the 4th century, the majority of the Church has (in principle at least) the political and social freedom to structure our own, internal life and how we relate to the larger society. The challenge now is to figure out what to do with the mixed blessing of such freedoms.
For Consideration: Right Answers Require Right Questions
The first lesson to be taught is that when we run across a situation we don’t like – “outrageous exploitation of sick people,” for example – we should start by asking how the situation came about and why it persists. What’s actually going on here? That’s an extremely important lesson: for the dinner table, the conference room, the legislative hall, and the faculty lounge as well as the economics classroom. We all have a tendency, especially when we’re filled with indignation, to begin with the conclusions and subsequently to choose the facts that will enable us to reach our preestablished results. That does little to promote understanding; it merely hardens opinions already held. It does not lead to learning. And it fosters debate rather than discussion. Doesn’t it make far more sense to ask why, if the situation is as intolerable as it seems to be, it continues to exist? Social phenomena are not facts of nature, like mountains. They emerge from the choices individuals make in response to the situations they encounter, situations that are in turn largely created by the choices other people make. If we want to change society, we must first understand it. The first step toward understanding how markets work, and the beginning, I would say, of all social understanding, is the recognition that social phenomena are the product of particular choices in response to particular incentives. Incentives matter! To fix any social problem, we must alter the incentives. To do that, we must first discover what they are.
Paul Heyne (2008), “Teaching Economics By Telling Stories,” in in the 2008 collection of Heyne’s writings, “Are Economists Basically Immoral?” and Other Essays on Economics, Ethics, and Religion (Geoffrey Brennan and A.M.C. Waterman, eds.), p. 322, emphasis in original.
Casuistry, Virtue and the Fruit of the Spirit
We sometimes draw an unappreciative distinction between the Orthodox Church’s “therapeutic” model of the Christian life and the “forensic” or legalistic model of Western Christian traditions. While not wholly without some foundation, this is basically silly.
Western Christian traditions also are concerned with healing the soul and, as Orthodox Christians, we have a long history of law. Not only canon law governing things like how a diocese functions but also very legalistic teaching on sin and confession.
In others, Orthodox moral theology can be every bit as legal (and legalistic) as anything in the West!
Looking at the ways in which moral theology become moralizing, some Orthodox Christians have downplayed or even dismissed the importance of moral theology. But as youth ministers, having no familiarity with the moral tradition of the Church is like trying to be a physician without knowing anatomy or an engineer who doesn’t know mathematics. It just ain’t gonna happen!
We need to know something of moral theology if we hope to guide young people successfully through the many struggles they’ll face as they move from childhood into adulthood.
Broadly, moral theology has two concerns: casuistry and virtue formation.
Casuistry, or the objective analysis of moral issues, has a bad reputation (and not just among Orthodox Christians). But to help someone live a virtuous life, we need to know what are the moral limits of our life in Christ, Casuistry is how we discern the moral boundaries that we can’t transgress and still remain in communion with Christ and the Church.
Casuistry is also important because, unlike virtue, sin is boring. We are all of us good in unique ways. There are an almost infinite number of ways for us to live morally good but moral goodness reflects the Infinite Goodness of God.
Sin, on the other hand, is monotonous and predictable. If a morally good life opens us to God neverending love, sin is narrowing our vision. Virtue makes us more than we were yesterday, sin makes us less than were.
But we need to remember, objective morality isn’t an end in itself. It does, however, remind us that we are all broken in similar ways (for more see Be the Bee #124). We aren’t going to grow in holiness as disciples of Jesus Christ because we don’t violate a short list of moral do’s and don’ts.
The priest who received my wife and me into the Church summarized the importance of objective morality this why: “You’re not a Christian because you keep the Ten Commandments but you can’t be a Christian if you don’t!”
So in addition to keeping the Commandments, to not sinning, the fathers say we need to cultivate virtue. We need to not simply do good things now and then, we need to be in the habit of doing good things.
I would define virtue this way. Virtue is made up of those habits of thought and action that lead to a life of Christian holiness. If casuistry, objective morality, sketches out the boundaries of the Christian life, virtue provides us the content of that life.
Not just young people but all of us need to know not only the moral limits but also the moral content of what it means to follow Christ. The Apostle Paul gives us a good summary of the virtues we need to cultivate as Orthodox Christians:
**But the fruit of the Spirit is love, joy, peace, longsuffering, kindness, goodness, faithfulness, gentleness, self-control. Against such there is no law (Galatians 5:22-23).**
In addition to thinking of sin as individual, morally bad actions, we also need to think of it as any habit or action that undermines the fruits of the Spirit.
What, for example, am I doing that robs me or others of joy or peace for example? How am I being unkind? What are the ways in which I’m unloving or selfish preferring my own will to what’s best for the people in my life?
In the next few classes, we’ll look at particular moral issues that are currently being debated in the culture. We’ll do this with an eye to answering the kinds of questions I asked here. While we shouldn’t use the moral tradition as a club to beat people or as an excuse to not love others or for self-promotion, we need to understand that what the Church says is objectively immoral are those things that undermine love and the other fruits of the Spirit that St Paul lists.
…for all who take the sword will perish by the sword.
I must respectfully disagree with Casey Williams’ essay in the NYT (Has Trump Stolen Philosophy’s Critical Tools?):
Trump’s playbook should be familiar to any student of critical theory and philosophy. It often feels like Trump has stolen our ideas and weaponized them.
He goes on to say that
For decades, critical social scientists and humanists have chipped away at the idea of truth. We’ve deconstructed facts, insisted that knowledge is situated and denied the existence of objectivity. The bedrock claim of critical philosophy, going back to Kant, is simple: We can never have certain knowledge about the world in its entirety. Claiming to know the truth is therefore a kind of assertion of power.
It isn’t Trump who weaponized critical theory; it’s always been a weapon. Critical theories of one sort or another have been used to undermine the Great Tradition, Christianity, natural law and now even simple courtesy.
William’s complaint is that, now, the weapon has been turned on those who used it first. What did Jesus say? I remember,
Put your sword in its place, for all who take the sword will perish by the sword. (Matthew 26:52, NKJV)
(Acton Power Blog) Key quotes from the work of the Austrian/British economist Friedrich Hayek:
On Faith in Freedom: Freedom necessarily means that many things will be done which we do not like. Our faith in freedom does not rest on the foreseeable results in particular circumstances but on the belief that it will, on balance, release more forces for the good than for the bad. (The Case for Freedom)
On Equality: From the fact that people are very different it follows that, if we treat them equally, the result must be inequality in their actual position, and that the only way to place them in an equal position would be to treat them differently. Equality before the law and material equality are therefore not only different but are in conflict with each other; and we can achieve either one or the other, but not both at the same time. The equality before th
F.A. Hayek (Photo credit: Wikipedia)
e law which freedom requires leads to material inequality. (The Constitution of Liberty)
On Democracy: A limited democracy might indeed be the best protector of individual liberty and be better than any other form of limited government, but an unlimited democracy is probably worse than any other form of unlimited government, because its government loses the power even to do what it thinks right if any group on which its majority depends thinks otherwise. If Mrs. Thatcher said that free choice is to be exercised more in the market place than in the ballot box, she has merely uttered the truism that the first is indispensable for individual freedom, while the second is not: free choice can at least exist under a dictatorship that can limit itself but not under the government of an unlimited democracy which cannot. (Letter to The Times (July 11, 1978))
On Wealth and Power: [W]ho will deny that a world in which the wealthy are powerful is still a better world than one in which only the already powerful can acquire wealth? (The Road to Serfdom)
On Private Property: What our generation has forgotten is that the system of private property is the most important guarantee of freedom, not only for those who own property, but scarcely less for those who do not. It is only because the control of the means of production is divided among many people acting independently that nobody has complete power over us, that we as individuals can decide what to do with ourselves. (The Road to Serfdom)
On Ignorance: All political theories assume, of course, that most individuals are very ignorant. Those who plead for liberty differ from the rest in that they include among the ignorant themselves as well as the wisest. Compared with the totality of knowledge which is continually utilized in the evolution of a dynamic civilization, the difference between the knowledge that the wisest and that the most ignorant individual can deliberately employ is comparatively insignificant. (The Constitution of Liberty
Reasons to fail
NIMBY is just one specific physical manifestation of a broader mentality of stasis. There is also:
- NIMEY—Not In My Election Year
- NIMTOO—Not In My Term Of Office
- LULU—Locally Undesirable Land Use
- NOPE—Not On Planet Earth
- CAVE—Citizens Against Virtually Everything
- BANANA—Build Absolutely Nothing Anywhere Near Anything
One upshot of this current Zeitgeist of community-enforced social stasis is that our physical infrastructure won’t get much better anytime soon.
From: Tyler Cowen, The Complacency Class:The Self-Defeating Quest for the American Dream