Rick's point is quite important. There will always be social pressures on people to conform to society's dominant views of what is equal, fair, and just. That is how successful social movements work.
But he begs the question about whether his attitudes or those of the Catholic Church will eventually change. That may seem a scandalous statement, since we know that God's laws are eternal. But the history of religion shows that whether God's own laws are eternal or not, the interpretations placed on them by the social organizations called churches do change over time. For example, churches that one supported slavery and preached the inferior status of blacks no longer do so. Those churches are not ostracized for once having taken positions that today we would find reprehensible. Rick may imagine that his views on homosexuality will never change, and it would be unprincipled of him to do so, but let's have that conversation in thirty years. (Indeed, let's have a conversation about my own views in thirty years. I have no idea what they will be on a whole host of subjects. But I have seen my views on a number of issues about religion and morality shift since I was young, and I have no doubt that they will change again.)
It is very unlikely that the Catholic Church is going to change its views on homosexuality in the same way that the Mormon church changed its views on polygamy. That is especially so since the center of gravity of the Catholic Church is increasingly in the Third World, not the more liberal climes of North America. But what is likely to happen is that the Church in the United States and Canada (as opposed to the rest of the world) will stop making as big a deal about homosexuality. What we will see is an accommodation, in which the Church will eventually support (or at the very least refrain form opposing) all sorts of antidiscrimination laws for homosexuals without giving up its view that homosexuality is morally wrong. The closest (although by no means perfect) analogy would be the attitude that the the Church takes toward the very large number of Catholics who have sex before marriage or who are divorced. Fornication is still wrong, and the Church requires and encourages abstinence before marriage, but more time appears to be spent on pointing out the evils of abortion or homosexuality than on fornication. The Catholic Church no longer spends very much time or effort attempting to abolish divorce laws, and although it may in some cases defend existing laws on the books against adultery or fornication, it does not actively try to put more restrictive laws on the books, as it does in the case of abortion. This accommodation, ironically, will be made possible when the gay rights movement is so successful that pressing its claims no longer becomes a matter of the same degree of urgency as it is today. Again, the sexual revolution is the appropriate analogy. Once a very large number of Americans began having sex before marriage, and premarital sex was fully normalized, lots of churches began spending more time complaining about other forms of sexual misbehavior. (You might call that defining deviancy down. I call it social change.).
The Boy Scouts, it seems to me, is an easy case. I'll bet Rick that the Boy Scouts completely backtrack on their current views on homosexuality within a decade. No judge will have to quit the Boy Scouts because it is a homophobic organization. Boy Scouts v. Dale will be overruled, not in doctrine, but in practice. (There's the conlaw hook for Eugene!).
Jack Balkin
At 12:00 AM 7/12/2003 -0700, Automatic digest processor wrote:
Date: Fri, 11 Jul 2003 10:45:05 -0700 From: Rick Duncan <[EMAIL PROTECTED]> Subject: Re: "Agenda" MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii
I think there is an "agenda" that homosexual political activists are trying to impose on society. The agenda, which includes things like gay rights laws and same-sex marriage and, maybe, the lowering of the age of consent, is ultimately about getting society to affirm the goodness of homosexuality and the evil of "HOMOPHOBIA." Ultimately, it is about demonizing people who believe that homosexual conduct is unnatural or immoral or unhealthy.
A few years ago Prof. Larry Yackle wrote a law review article (73 B.U. L. Rev. 791) predicting the success of the gay rights cause. Yackle went on to predict that when the gay revolution succeeds, the "old order" will be crushed and "private homophobia, deprived of legal sanction, will ultimately be discredited and forced to the margin." Id. at 792-793. Homophobia equals Racism, and to be a homophobe (i.e. to believe that homosexual conduct is immoral or unhealthy or unnatural) is equivalent to being a racist. Cardinal O'Connor has the same moral standing in the community as David Duke and the Boy Scouts are equivalent to the KKK.
Sounds crazy doesn't it? You would have to be crazy to believe that anyone has an agenda like this. No? I mean what's next? Will judges be forced to quit the Boy Scouts under rules of judicial ethics? Ridiculous! Will the Christian Legal Society be banned from interviewing on campus at elite law schools? What nonsense! Next thing you'll be saying that judges will have to leave the Catholic Church or the Knights of Columbus to satisy their ethical obligations. Not yet!
But wait awhile.
Maybe this is what Scalia had in mind in Lawrence. The greatest intolerance I have ever witnessed has come from people goosestepping under the banner of tolerance. The homosexual agenda embraces tolerance in order to crush those who have a different view of the goodness of homosexual conduct.
Cheers, Rick Duncan
===== Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902
"Politics is not a bad profession. If you succeed there are many rewards, if you disgrace yourself you can always write a book." Ronald Reagan
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