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ROADS TO ROMER: How Moral Teaching [on Homosexuality] Became a 'Fit of Spite'
Eutopia: A Lay Journal of Catholic Thought ^ | Jan. 1999 | Richard L. Kent, Esq.

Posted on 02/28/2004 6:05:55 PM PST by Ronly Bonly Jones

Romer" - Richard L. Kent, J.D.

Eutopia - A Lay Journal of Catholic Thought Vol. 3 No. 2: January/February 1999

Roads to Romer
How Moral Teaching Became a 'Fit of Spite'

by Richard L. Kent, J.D.,
Founding Editor, Eutopia

The devil has the broadest perspectives for God; therefore he keeps so far away from God -- the devil being the most ancient friend of wisdom.... 1

-- Friedrich Nietzsche


I. Introduction

In the happy days of the Summer of 1997, in which "the winter of our discontent [was] made glorious summer,"2 where the miraculously peaceful surrender of the last great enemy of American democracy was almost already forgotten, where the Dow was soaring and the news slow, the American people seemed to revel in the peace and prosperity that victory always promises but too rarely brings: America "capered nimbly in a lady's chamber/To the lascivious pleasing of a lute...."3 Materially, in those now-nostalgic days, we prospered and lacked for nothing, and rejoiced in our (seemingly) ever increasing wealth and economic stability, and in the illusion of national innocence.

Yet even in those idyllic days, a disquietude had struck the people of the United States -- a profound spiritual disturbance. This was not a mere "malaise4"; nor was it a shallow loss of national direction in a time of melancholy peace. Rather, this was deeper: a rumbling beneath the surface, the preparatory tremblors that, as we have since seen, truly presaged a great earthquake.

These tremblors warned of a slowly widening awareness that something had gone terribly wrong with the American democratic experiment: with the soul of the nation, with its culture, with its very identity. This disturbance, like the malevolence that bubbled just under the surface of the prosperous reign of Edward IV, warned of grave difficulties to come -- for those who had ears to hear.

This disturbance has been given the name "the culture war" (or "the culture wars")5 and has, over the course of the past decade or so, festered to the point where open rumblings of rebellion, revolt and even revolution had begun to be heard. The very legitimacy of the government of the United States began to be questioned, not merely in the vicious circles of discontented bomb builders, but even at the highest levels of the conservative movement and the heart and mind of the Republican Party.6

What, indeed, had become of the United States? Are we doomed, like Nietzsche's warlike man,7 to fall upon ourselves in the absence of an external threat? Phrases such as "civil disobedience,"8 "the American regime,"9 and even "secession,"10 once solely spoken in the circles of the politically dyspeptic, were now beginning to appear in the byways of the information superhighway: indeed, in that year, they were even heard and spoken at the highest political levels of the conservative movement.11

Whence this disquietude? By all accounts, it is rooted in the growing perception of a separation -- indeed, a fundamental hostility, displayed by the nation's cultural elite, toward the deeply rooted cultural and religious beliefs held by a great portion, if not a majority, of the population.

What made that hostility so dangerous, however, is reflected in the actions taken by the elite through the most authoritarian of methodologies -- through court decrees -- to implement laws and policies in open defiance of the wishes of the majority as expressed in their legislatures. This hostility has been matched by a complementary perception by religious believers that consequences of this continued contempt for their fundamental assumptions is becoming less and less endurable.

This dichotomy led to the publication, on the Fourth of July of 1997, of a manifesto12 by leading Christian intellectuals and Church leaders that openly called for a careful reconsideration of the role that religion plays in our public life calling, not for the establishment of a Christian state, a "sacred public square,"13 but rather, the reestablishment of a "civil public square"14 where law and public policy can be better harmonized with "the laws of nature and nature's God."15 In short, it called for a restoration of the legitimacy of religious values in public discourse and in public life in general.

But how did this process of deligitimization of faith come to pass? A diffuse process with many parallel streams of advance, it does not lend itself to a simple approach.  One can choose to look at the Supreme Court's rejection of the Religious Freedom Restoration Act (RFRA)16 in City of Bourne v. Flores.17 or perhaps at reformulation of the Roe v. Wade18 trimester system in Planned Parenthood v. Casey.19 Given our restrictions in time and text, however it would be simplest to narrow our focus to a single line of inquiry. Let us look to one major change in the law as reflected in this trend: the Supreme Court's rejection of traditional objections to homosexuality inherent in the 1996 Supreme Court decision Romer v. Evans. 20


II. Roadmap to Romer:

Romer made the assertion that legal opposition to homosexual behavior and special privileges for homosexuals was rooted in "animus." This declaration came in spite of the ruling upholding sodomy laws in Bowers v. Hardwick.21  Romer seemed to indicate that the court was coming to reject the traditional objections to homosexuality.

Romer did not fall out of the sky. It was the end result of a steady, decade-long, decentralized campaign by gay and lesbian groups and sympathetic individuals to achieve legitimization and affirmation by the State of homosexual lifestyle and behavior patterns. Such a campaign has come across on several fronts: through the influence of Hollywood,22 through combined television, press and entertainment campaigns,23 through endless lawsuits against federal and state authority for such varied causes as the struggle to keep homosexuals in the military (the "don't ask, don't tell" policy),24 as well as general political mobilization for the repeal of statutes criminalizing sodomy (either through repeal on the state level or through court action), and lawsuits calling for abolition of constraints on homosexual behavior.

This campaign has been accompanied by a broadside of legal "scholarship" designed to affirm and reinforce the intellectual and legal elite's predisposition toward affirming homosexual behavior regardless of the dictates of the legal tradition or of the wishes of the voting public. [See accompanying article.]

Overall, however, a pattern can be seen of court rulings originating in the Warren court of the 1960s, in the realm of "personal privacy," invented to accommodate unlimited access to contraception: the well-known Griswold ruling of 1963.


The road to Romer began in Connecticut. Griswold v. Connecticut25 arose when the Planned Parenthood League of Connecticut decided to challenge a state law criminalizing the use of contraception; its executive director, Griswold, was convicted of distribution in violation of state law. The conviction was upheld by the Connecticut Supreme Court26 and Griswold appealed to the U.S. Supreme Court.

The Griswold issue was simple: does a couple have a constitutional right to use contraceptives? A 7-2 majority found the answer to be 'yes' -- but to strike down the Connecticut law, they were forced to break entirely new legal ground. The Court found that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guaranteed here"27 -- those guarantees were construed by the Court as creating a right of privacy, within which fell the right to contracept.

The Court in essence created, within the "umbras and penumbras" of various recognized privacy rights, a new area which was beyond the reach of the law. The Court in Griswold created what might be termed a personal cone of silence† beyond which no state or federal law could go. This was more than a mere slippery slope; it was an event horizon, a jurisprudential black hole capable of absorbing not just contraception for the married, but contraception for the unmarried, abortion, homosexual license, infanticide, assisted suicide, and euthanasia: all brought about, in actuality or potentially, by court ruling alone; none of them by representative democracy.


In Loving v. Virginia28 a biracial couple, convicted for the "crime" of interracial marriage, received a suspended sentence on stipulation that they would leave the state for 25 years. When they appealed their sentence to the highest court of Virginia, that Court invoked Naim v. Naim29, a 1955 decision that openly invoked White Supremacy30 as the motivating factor in preventing interracial marriages ("miscegenation").

This provoked judicial outrage from the United States Supreme Court, which held that marriage is a "basic civil right of man,"31 and that denial of this right was found to be a deprivation of equality and liberty without due process of law and a denial of equal protection of the laws. "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."32 The Virginia statute was held to have "no legitimate overriding purpose independent of invidious racial discrimination" and thus violated the "central meaning" of the Equal Protection Clause of the Constitution.33

While few would object to this ruling, it has had an unforeseen consequence, a growing tendency to draw a specious comparison between laws prohibiting "miscegenation" and those prohibiting homosexual "marriage."

To anyone having a traditional understanding of the meaning of marriage, this reasoning is on the face of it ridiculous: while interracial marriage is as old as Man, no culture, at any time in history, has ever recognized anything like homosexual "marriage." Simply because "antimiscegenation" laws, an artifact of slave-owning culture, are abhorrent, does not mean that other restrictions on marriage are necessarily also abhorrent for the same reason. This equivalency can only be termed a logical absurdity: otherwise marriage laws rooted in tradition and long human experience, such as those barring adultery, fornication, adult incest, bigamy and polygamy, are also open to question. Nevertheless, absurd as it is, the moral equivalence of the two has been asserted, even in one notorious article in the Catholic University Law Review.34


Eisenstadt v. Baird35 was a major ruling in the Sexual Revolution. In this 1971 case, Baird, another Planned Parenthood activist, was cited for distributing contraceptive foam in Massachusetts, where contraceptives were unavailable to single individuals.

An Appeals Court held that the conviction conflicted "with fundamental human rights [under Griswold v. Connecticut],"36 the State of Massachusetts also argued that Baird lacked standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives.

The U.S. Supreme Court found that if the Griswold decision prohibited the states from restricting access by married people to contraceptives, then the unmarried were entitled to the same access as a basic human right under Equal Protection: a "marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals...."37 and thus the underinclusion of single people in access to contraceptives is "invidious."38

The thrust of the case, then, was that everyone would seem to have a constitutionally protected right to private, consensual, heterosexual relations. While the case deals only with access to contraceptive devices, and the item in question is a spermicidal foam (which, even now, is of no use to a homosexual couple), then the case may provide no direct guidance and does not directly widen the coverage of homosexual behavior under the law. Nevertheless, the establishment of heterosexual behavior and intercourse within and without marriage would serve to greatly strengthen the hand of those who argued that all sex should be free of the law's constraint.


In Marvin v. Marvin,39 the court greatly expanded the property rights of those participating in long-term, unmarried sexual ("meretricious") relationships. This well known dispute -- the so-called "Palimony Case," involved the actor, Lee Marvin, and his live-in paramour. The court held that since long-term, unmarried sexual relationships were largely accepted now by society, the lower courts should enforce express contracts between members of an unmarried couple unless the relationship amounted to prostitution.

The major effect that this case had on the progression to Romer was its ultimate rejection of the concept of meretriciousness (a term of condemnation) as applied to sexual relationships. In opening the door to so-called 'palimony' the Court delegitimized the marital state as the primary arbiter of whether one individual in a sexual relationship with another had achieved an enforceable property right over the goods of another. The fact that the partners were not married should, the Court found, not render them ineligible for relief on that fact alone.

The marital relationship, and even its sexual aspect, was removed completely from consideration and replaced by the resort of a court inquiry into "conduct" that "demonstrates an implied contract ... [or] other tacit understanding."40 Marriage as a bright line is thus replaced by a purely 'contractual' model of human relations.

Traditional marriage was thus uprooted and the seeds of its replacement sewn: domestic partnership -- heterosexual in the case at bar, and ultimately homosexual partnership as well. The door was opened for the possible complete separation of sexuality and a marital bond from the realm of property rights, and would, it would seem, create an utterly new basis for determining whether a binding relationship had formed between parties.41


 Bowers v. Hardwick42 provided a major roadblock on the long path to the legitimization of homosexuality in general and homosexual domestic partnership in particular. This 1986 case reaffirmed and preserved the legitimacy of the criminalization of homosexual conduct and decreed and that "morality [and] majority sentiments about the morality of homosexuality"43 are adequate bases for laws prohibiting such conduct.

The Supreme Court held that the Georgia law prohibiting sodomy, and by extension all such state laws, was constitutional, and that there was no fundamental right to homosexual sodomy inherent in the Constitution: in fact, to claim that there was held to be "at best, facetious."44 The Court found that to create such a right would put the Court in a position where it has "necessarily taken to itself further authority to govern the country without express constitutional authority."45 [Emphasis added.].

Naturally, such a ruling was not unanimous. Perhaps the most disturbing element of the dissents was the reliance on the combination of Griswold v. Connecticut, "which identifies [the Ninth] Amendment as one of the specific constitutional provisions giving 'life and substance' to our understanding of privacy,"46 with the ruling on Roe v. Wade: "The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many 'right' ways of conducting those relationships..."47 These suggestions that there are multiple "right" approaches to lawful behavior and that they are protected by the Ninth Amendment, lay the groundwork for the cases that follow and provide a major justification for the ruling of Romer, discussed below.


If Bowers v. Hardwick was a roadblock on the road to Romer, then the Casey48 decision might be likened to a runaway bulldozer. Casey was not explicitly about homosexuality, of course, but rather about abortion. In this case, the Court reaffirmed the "essential holding" of Roe v. Wade -- the "fundamental right" to abort remained constitutionally permissible -- but the reasoning that underlay Roe was badly eroded: leaving Roe in a state Justice Scalia likened to a "Potemkin village,"49 a ruling that left elective abortion legal but based upon an entirely new rationale.

The Casey ruling essentially abolished the trimester system used in Roe and found a woman's right to abort a nonviable fetus was grounded in the due process clause of the Fourteenth Amendment: but on most curious grounds. The key issue for our discussion of homosexuality lay in that Casey now found a new basis for the "right" to abortion: the right to 'define one's own concept of existence':

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.50

Never has the Court spoken words with such ominous portent. In declaring that such beliefs could not be formed "under compulsion of the State"51 then the door is left wide open for the justification for almost any imaginable criminal, anti-social behavior, whether victimless or not. Once personal behavior becomes subject to a standard of review that involves a Zen-like "mystery" that one defines on ones own, independent of the rest of society or any external standard, anything becomes possible.

Governor Robert Casey of Pennsylvania, the nominal defendant in Casey, spoke at The Columbus School of Law in 1994, where he quoted George Weigel:

Despite the high sounding words [of the formulation] one would have to go to the Dred Scott Decision to find a judicial pronouncement more ominous in its implications for American democracy....the American experiment is no longer about working out the public implications of 'self evident truths'...[but] the satisfaction of the unencumbered, autonomous, self-constituting, imperial Self."52

This formulation -- indeed ominous -- opened the door, in short, to "a multitude of sins."53


This Hawaii case was the first to directly moot the possibility that a state might recognize homosexual "marriage." Even though nationwide implementation of the Hawaii ruling in Baer v. Lewin54, was profoundly affected by the Defense of Marriage Act of 199655 and by the last election in Hawaii,56 Baer is still a key ruling in the realm of domestic partnership and same-sex "marriage."

In Baer, two lesbian couples and one gay couple attempted to obtain marriage licenses. They were eligible in all respects, but for the fact that each pair of individuals were the same sex. They sued. The circuit court dismissed the suit with prejudice; the couples appealed.

The court cited Holdman v. Olim,57 finding that since "the Hawaiian state constitution's Article I, Section 21, is substantially identical with the proposed Equal Rights Amendment of the United States Constitution,"58 it thus requires that the state pass a "strict scrutiny" test59 to justify the prohibition of same-sex "marriage." The Supreme Court sent the case back to the lower court to determine if, indeed, the state could past this test, explicitly relying on Loving v. Virginia.60

The Court did not specifically state that it equated same-sex "marriage" prohibitions with antimiscegenation laws; the court simply held marriage laws to the same standard of inquiry as it would any laws subject to the State Constitution.61 As it developed, if the State of Hawaii wished to preserve heterosexual marriage, then the State Constitution would have to be amended to reflect this wish. (This particular aspect of the case, however, was eventually resolved in November 1998, when the state Constitution was so amended by the voters.)

In summary, we now understand the stops on the road to Romer. Griswold v. Connecticut gave contraception to married couples, in so doing creating a potentially unlimited "right to privacy". Loving V. Virginia reaffirmed marriage as a fundamental human right and struck down 'invidious' limitations on its exercise. Eisenstadt v. Baird decreed that the unmarried had a constitutional right to access to contraception, and consequently, a constitutional right to sex regardless of marital status. Marvin v. Marvin laid the groundwork for domestic partnership by removing legal detriment to meretricious relationships. Bowers v. Hardwick reaffirmed the criminalization of sodomy. Planned Parenthood v. Casey decreed that the 'right to define one's own concept of existence' was the 'heart of liberty;' Baer v. Lewin, decreed that the State of Hawaii had to submit to a strict scrutinizing of its banning of homosexual "marriages." While none of these decisions (with the exception of Casey) can be termed wholly evil of themselves, but together they laid the groundwork for what followed.

III. ROMER: City on the Hill?

Romer v. Evans62 concerned Amendment 2,63 an amendment to the Colorado Constitution passed in 1992, which attempted to prohibit local grants of special privileges to homosexuals. Amendment 2 would have repealed all state and local laws and regulations that would have barred discrimination based on sexual orientation, and prevented the adoption of new ones.

After its adoption, a coalition of homosexuals and municipalities sued to enjoin enforcement; the trial court granted a preliminary injunction which was sustained by the Colorado Supreme Court. The Colorado Court held that the Amendment infringed on the rights of homosexuals to participate in the political process. After remand, where the trial court again rejected Amendment 2 and the Colorado Supreme Court this time affirmed, the suit passed to the United States Supreme Court.

The Supreme Court found that Amendment 2 violated the Equal Protection clause of the United States Constitution. The ruling prevented Coloradans from prohibiting special treatment for homosexuals as a protected minority class.

Most ominously, the U.S. Supreme Court rejected the logic used to defend Amendment 2 as "inexplicable except by anything but animus."64 Justice Kennedy's ruling for the Court -- described by one observer as having "the shallowness of .... the Platte River in a drought year"65 -- dismissed centuries of jurisprudence and Judeo-Christian teaching on the proper role of sexuality in a civil society and essentially accused the supporters of that teaching of bigotry; it reduced ten thousand years of moral learning to an epithet.

Justice Scalia, in dissent, derided the logic of the majority as "terminal silliness" and accused the majority of mistaking moral teaching for "a fit of spite." He made clear that he thought the majority's reasoning in Romer highly problematic:

[I]t is obvious to anyone applying 'reasoned judgment' that [certain] adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick) ... has held are not entitled to constitutional protection -- because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally "intimate" and "deeply personal" decisions involving "personal autonomy and bodily integrity," and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are prescribable.66

While entertaining, Scalia offered cold comfort to the believers who backed Amendment 2; his dissent in this case, although convincing, remained a dissent.

The greatest danger to liberty interests lies in the undercurrent of derision, coercion and compulsion of those holding traditional objections to homosexual behavior. Clearly, the ultimate agenda of those fighting Amendment 2 was, as one observer put it, to "discredit .... 'private homophobia' ... by the educative effects of laws enacting homosexual rights"67 -- and that the 'homophobia' to be discredited was "what others called 'traditional sexual morality.'"68

A blunt question must be asked to those who would impose the homosexual agenda on an unwilling populace through invoking substantive due process to revoke sodomy laws and prohibitions of same-sex "marriage": to what extent is the American Government expected to apply force to back up a decision by the Court to legitimize homosexuality?

The political humorist P.J. O'Rourke once remarked that every dollar of tax paid is extracted at gunpoint: "Pony up for your neighbor's [day-care] or it's curtains for you, Mom."69 And so it is with Supreme Court decisions: as both Little Rock Central High School and the Federal police officer deployed in front of the neighborhood abortion clinic should remind us, behind court rulings stand the force of arms.

In the end, behind the agenda to completely liberate homosexual behavior under cover of substantive due process must lie the willingness to use force, through law enforcement or worse, to impose it on an unwilling populace.

As mentioned in Romer, above, there appears to be a strong element of contempt for common people, plebeian believers, behind the curt "animus" ascribed by the Supreme Court.

IV. Roads from ROMER: Hawaii & San Francisco

Romer has had two major sequelae: one, in Hawaii, where a state Supreme Court repeatedly overrode the will of the people in an attempt to impose homosexual "marriage" from above, and in San Francisco, where a local political majority and power elite openly hostile to the Church attempted to force the Church to actively affirm a moral stance repugnant to her. Both of these circumstances bode very ill for the independence of the Church and for the rights of believers.

A. Hawaii

The State of Hawaii, which became the first state in the nation to mandate that employers offer benefits to non-blood-relatives, and The Catholic Archdiocese of San Francisco, through its charitable arm, Catholic Charities, has both come to support homosexual partnerships, but against their explicit will.

As mentioned above,70 the State of Hawaii adopted a law that mandated the extension of "family" health benefits to unrelated adults. "The so-called "reciprocal beneficiaries" law, ... was written hastily by state lawmakers to extend benefits to people who couldn't marry, such as homosexual couples."71  This makes Hawaii the first state in the Union to recognize domestic partnerships. This, however, was apparently only adopted as an attempt to deflect the coming ruling of the Hawaiian Supreme Court.

The Hawaii State Legislature passed the domestic partnership law, but only because it was facing the very real possibility that the Court would force the State to accept homosexual relationships regardless of the desires of the voters.

The recognition of same-sex "marriage" under Hawaiian state law however did not develop as smoothly as foreseen. The first move was a statewide referendum in November 1996 calling for a state constitutional convention, which would convene to amend the Hawaiian state constitution on marriage laws. The election, which would have led to an anti-gay "marriage" constitutional convention, was thrown out by the very Supreme Court it was intended to bring to heel. It was not until November 1998 that the issue was settled by rejection of any possibility of homosexual "marriage".

The undercurrent here is that there was an attempt to usurp the democratic process: judges acted as black-robed nobles in a neo-aristocratic government, attempting to force homosexual "marriage" down the throat of an unwilling populace, finally brought to heel by an undeniable electoral decision. While perhaps an example of democracy in action, the very anti-democratic nature of the force attempting to legitimize homosexual "marriage" was made quite manifest.

B. San Francisco

While the continuing authoritarian nature of the Supreme Court of Hawaii is seen in the latest round of the Baer decision, however, in San Francisco a much more malevolent force is seen at work: the conscious decision by powerful and entrenched gay and gay-sympathetic politicians to force, willy-nilly, the Roman Catholic Church to pay benefits for the homosexual partners of Church employees, in open opposition to the dictates of Church teaching, through abuse of the democratic process.

It is a matter of public record that the law was put in place as an intentional assault on the Church. In 1996, the Harvey Milk Lesbian/Gay/Bisexual Democratic Club's Queer Legislative Committee [sic] conceived the idea to force the Church to give benefits to homosexual partners:

Our ''legislative intent'' was to end the use of San Francisco tax dollars to perpetuate discrimination against queers, and instead allow us the same economic opportunities as those afforded couples whose unions are state sanctioned.72

This proposal went forward. The new law was signed by San Francisco Mayor Willie Brown Dec. 1, 1996, and went into effect June 1, 1997.

The effect of this proposal on the Catholic Church in San Francisco was stark and immediate: Catholic Charities, which is run by the Archdiocese of San Francisco, receives more than $5 million a year in city-controlled funds (but not all-city derived funds; much came from the State and Federal governments).73  Furthermore, Catholic Charities was just about to open a new 45-bed facility, Leland House, to provide treatment to individuals suffering from AIDS and HIV; more than $5 million had been spent on the building. Indeed, when Archbishop Levada announced his initial opposition to the plan, the building project was put in jeopardy and the opening ceremonies planned were cancelled.74  So the Church would only be allowed to minister to the poor if it openly disrespected its own teachings.

Archbishop Levada was clearly in a difficult position. On the one hand, he and Catholic Charities were responsible for providing a significant amount of charitable assistance to the city's many AIDS patients, perhaps 5000 of whom are homeless. On the other hand, Catholic Charities, as an organization under the authority of the Archdiocese of San Francisco, had a duty to uphold the teachings of the Church. The conflict was seen by many as a test of Archbishop Levada's political will.75

The attitude of San Francisco's homosexual community toward the Church that was caring for its homeless AIDS victims was harsh and uncompromising; Mayor Brown rejected Levada's plea to be exempted.

After an hour-long news conference in early February, Levada gave in to the pressure from the city. Catholic Charities would be responsible for paying for providing health-care coverage to one member of an employee's household, regardless of degree of blood relation and regardless of sex. This allows Catholic Charity employees to get health coverage for the employee's parent, sibling, child, or other "unrelated adult."

In short, the City of San Francisco, under the guiding hand of an anti-Catholic political organization, forced the Roman Catholic Archdiocese of San Francisco to accept the concept of payment for homosexual domestic partners, regardless of Church teaching on the morality -- that is, the immorality -- of active homosexual relationships. In short, instead of getting a "win/win" scenario76, the Roman Catholic Church and the San Francisco homosexual community got a "lose/lose" situation. The Church lost because it was forced to violate its teachings and scandalize the public by paying benefits to unrelated homosexual lovers of Church employees.77  And San Francisco lost the opportunity to witness an act of political courage in defense of truth.

Not all charitable groups in San Francisco chose to comply with this new law. The Salvation Army terminated a $5 million contract to provide charity aid rather than comply with the provisions, which it termed antithetical to its Christian witness and mission.78  So San Francisco, in the end, did receive a lesson in Christian courage and resistance to injustice from the faithful -- just not from the Catholic Church.

C. Oppressive "Sunshine"?

But that was not the end of the matter: In San Francisco, the original effort to force the Catholic Church to pay for gay partnerships was followed up by a second bill signed into law in June, 1998, with a primary intent to oppress the faith: a bill that forced all private charities receiving city funds to hold extended open meetings twice a year.

This law, nominally forcing private organizations to comply with the "Sunshine laws" applicable to governmental organizations, was seen, correctly, as an attempt to subject Catholic Charities and other Christian charitable organizations to mob intimidation and the sort of political street theater for which San Francisco is notorious:

Archbishop William Levada worries Catholic Social Services board meetings would become sounding boards for church policies such as abortion or gay rights. Many boards, typically made up of pro bono business people, ... fret [that volunteer] directors will quit after a few Gong Show meetings dominated by free lance critics.79

Such fear is well placed and almost certainly was the motivating factor behind the law. Although a bill prohibiting religious groups from undergoing this sort of forced scrutiny was passed by the U.S. House of Representatives in July, the provisions were withdrawn from the Omnibus Bill signed in November.

So the Catholic Church in San Francisco must subject itself to harassment by its sharpest critics to be allowed to care for the sick. This is an outrage for the present, ripe with danger for the future.

V. Conclusion

Romer may well prove to be a major turning point in the Long March by America's homosexual community for the achievement of official recognition as a recognized minority, in its ultimate quest for full recognition and toleration of homosexual practice by American society.80  However, such recognition is in grave danger of coming at a very high price: the transfer of legal discrimination, under the law, against homosexual acts to those individuals opposed to homosexual behavior for moral reasons. So long as the Church remains true to her eternal and immutable teachings, the sort of "inclusiveness" necessary to fully incorporate homosexual "marriage" into a society based on traditional marriage mandates oppression of the Universal Church; the sort of abuse of the Faith now starting in San Francisco may be but a bellwether of the future.

This threat is no exaggeration: especially since the blame for the October, 1998 death of Matthew Shepard has been attributed to religious believers and not to the thugs who killed him.81  An equivalency has clearly been drawn: Klansmen and simple churchgoers are now tarred by the same hideous brush.

Today it is conventional wisdom in certain areas of the press that blind racists and religious traditionalists are morally indistinguishable. This Krystallnacht logic has been very effective in drawing headlines. Nevertheless, it remains to be seen if it will engender much sympathy for the cause of gay rights among believers or those who value freedom of conscience or the 1st Amendment.

VI. Afterword: CUA's Roadsigns to ROMER

The road to Romer was clearly marked by the road signs of legal scholarship, or what passed for it, in favor of undermining the longstanding laws protecting marriage and heterosexual relationships as the foundation of society and upholding a new morality that turned its back on Judeo-Christian sexual ethics. Given that the majority in Romer -- members of the Supreme Court of the United States -- was reduced to name calling in their decision to overrule the will of the People of the State of Colorado, one cannot expect that other legal scholarship attacking traditional sexual morality to exhibit much greater level of intellectual depth in their analysis. Indeed, much of the 'scholarship' associated with the movement to overthrow traditional sexual morality in law is embarrassing at best. CUA's contributions are especially so, given the University's papal charter and mission.

The Catholic University of America has made two major contributions to this area of legal 'scholarship.'  The first, CUA law student Kevin A. Zambrowicz's Note in the Catholic University Law Review,82  was published in Fall 1994, and actively advocated same-sex "marriage". Of the work itself, the less said, the better; it generally took the same stance that the Loving v. Virginia ruling outlawing anti-miscegenation laws somehow mandated the physical impossibility of same-sex "marriage." Being a Law Review Note (the work of a law student, and not faculty) its import is fairly easy to discount. Nevertheless its unrenounced appearance under the aegis of the Catholic University Law School remains a serious black mark on the legitimacy of the Law School's commitment to its Catholic mission and identity of that era.

A much more serious challenge to the orders of the hierarchy and Magisterium of the Faith was laid on by a member of the CUA law faculty. Fr. Raymond C. O'Brien, a Catholic priest, who today teaches at The Catholic University of America's Columbus School of Law, specializes in courses on domestic relations and trust and estate law. He published an article in 1995 in the San Diego Law Review, entitled Domestic Partnership: Recognition and Responsibility,83 which sought to propagate support for domestic partnerships and strongly encouraged the acceptance of the phenomenon of domestic partnership by the legal community.84

The fact of an active Catholic priest, employed by the Church at a Papal university to teach family law, advocating the legal recognition and encouragement of relationships and behavior that are clearly stated in Church teaching as detrimental to the individual, is highly problematic.85  Despite his public stance and advocacy in opposition to the Faith, Fr. O'Brien remains free to teach at CUA Law School and continues to use his teaching position as a forum for advocating legitimization of homosexual relationships under the law.

Fr. O'Brien claims that the future of same-sex domestic partnership is 'expansive.' And so it seems. As of the summer of 1997, The Human Rights Campaign website showed more than 351 organizations86 nationwide recognized same-sex domestic partner ships. But while the future is 'expansive' it can ultimately only come to pass by trampling the rights of the people and of the Church, as happened under an anti-Catholic political regime in San Francisco (as discussed above). Those who are employed by the Church to teach under her authority have an explicit responsibility to teach what the Church teaches, affirm what the Church believes, and to uphold and protect the Faith. They are not at liberty to openly disrespect the Faith through advocating that which is repugnant to it. Most especially, they have no business publicly advocating that which would lead to her persecution.



1. Friedrich Nietzsche, Aphorism 129, Beyond Good and Evil, in Walter S. Kaufman, Basic Writings of Nietzsche, 277 (Modern Library 1968).
2. Shakespear, Richard III, Act 1, Scene 1.
3. Id.
4. This refers to the famous speech by Jimmy Carter in 1979 in which he decried the spiritual slough of despond which the nation had sunk into at the time -- referred to afterward derisively as the "malaise speech" (although he never used the term himself).
5. The term "culture war" is commonly traced to a famously combative speech by Patrick Buchanan at the 1992 Republican National Convention, August 17, 1992 (again, he also never used that term). The use of the term "culture wars" in the way currently understood
6. Cf. the so-called "First Things" controversy. The November 1996 issue of the Christian thought journal FIRST THINGS included a symposium entitled "The End of Democracy? The Judicial Usurpation of Politics," which included essays by leading conservatives Robert Bork, Russell Hittinger, Hadley Arkes, Charles Colson, and Robert George discussed and decried the increasing separation between the judicial elite and the opinions of the people who live in the United States. However, the lead editorial, which openly questioned the legitimacy of the American "regime" and called for consideration of the possibility of "morally justified revolution," brought about a sharp reaction, including the resignation of Gertrude Himmelfarb, Walter Berns of the American Enterprise Institute, and Boston University sociologist Peter L. Berger from the board of advisors à as well as a stumbling criticism in the form of an article by Jacob Heilbrunn in the December 30, 1996 issue of The New Republic, which ended in accusing the Catholics among the conservative movement of being "Theocons" intent on imposing an "un-American" Thomistic theology on the American constitution. Cf. generally. FIRST THINGS 69.
7. "Under peaceful conditions a warlike man sets upon himself." Friedrich Nietzsche, Aphorism 76, Beyond Good and Evil, in Walter S. Kaufmann, Basic Writings of Nietzsche, 277 (Modern Library 1968).
9. Id.
10. See, inter alia, Catherine Trevison, "Radio host voices desire for neo-confederacy in South," THE TENNESSEAN, June 24, 1997, At 1B; Ruth Sheehan, "The New Confederates," THE NEWS AND OBSERVER (RALEIGH, NC), April 28, 1996, at A1.; Sam Hodges: "SOUTHERN HERITAGE: Cultural genocide? Secession seen as remedy," THE ATLANTA CONSTITUTION, April 21, 1996, at 01R; George Will, "South's struggle for independence defiantly lives on," THE FRESNO BEE, December 27, 1995, at B5; Michael Hill; Thomas Fleming, "The New Dixie Manifesto: States' Rights Shall Rise Again," THE WASHINGTON POST, October 29, 1995, at C3.
11. In 1997, National Empowerment Television, under Paul Weyrich, ran a "talking-head" TV series entitled "The Second American Revolution"Ã their most popular ever.
12. WE HOLD THESE TRUTHS: A STATEMENT OF CHRISTIAN CONSCIENCE AND CITIZENSHIP JULY 4, 1997, mentioned in "Lawsuit opposes religious posting," HOUSTON CHRONICLE NEWS SERVICES, July 19, 1997, at 8. See 3 EUTOPIA 13 (September 1997).
13. Id.
14. Id.
16. 107 STAT. 1488, 42 U.S.C. @ 2000bb et seq.
17. 1997 U.S. LEXIS 4035 (1997).
18. 410 U.S. 113 (1973).
19. 505 U.S. 833 (1992).
20. 116 S. Ct. 1620 (1996). The Colorado Supreme Court ruled twice after the promulgation of the Romer ruling.. See Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (en banc); Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (en banc), aff'd, 116 S. Ct. 1620 (1996).
21. 478 U.S. 186 (1986).
22. ee inter alia the large number of 1997 films celebrating homosexuality and homosexual culture: Philadelphia, La Cage Aux Folles, Chasing Amy, Girls on the Side, Fried Green Tomatoes, The Birdcage, The Crying Game, Wigstock, Priest, My Fellow Americans, The Brady Bunch, Four Weddings and a Funeral, Female Misbehavior, Glennda and Camille Do Downtown among many others.
23. Cf. the ABC/Disney "Ellen" TV show campaign, where actress Ellen Degeneres "came out of the closet" and was, in consequence, invited to the White House, is one recent example. A Lexis-Nexis news search revealed no less than 1,650 stories appeared on "Ellen" between April 1 and July 31, 1997. (This however did not spare "Ellen" ignominious cancellation the next year, after a precipitous drop in ratings and after critics, including the openly lesbian Chastity Bono, called the show à too gay.à )
24. See inter alia Cammermeyer v. Aspin, 97 F.3d 1235 (9th.Circ. 1996).
25. 381 U.S. 479 (1965).
26. 151 Conn. 544, 200 A.2d 479 (1964).
27. Id. at 484
28. 388 U.S. 1 (1969).
29. 197 Va. 80, 87 S.E.2d 749 (1955).
30. In Naim, the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens,' and to prevent 'the corruption of blood,' 'a mongrel breed of citizens,' and 'the obliteration of racial pride,' obviously an endorsement of the doctrine of White Supremacy." Loving, at *3, citing Naim v. Naim 97 VA. at 90, 87 S.E.2D, at 756.
31. See Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).
32. Id.
33. Id.
34. See Kevin A. Zambrowicz, 'Note: "To Love and Honor All the Days of Your Life": A Constitutional Right to Same-Sex Marriage?,Ã 43 CATH. UNIV. LAW REV. 907 (Fall 1994); James Tro-sino, 'Note: American Wedding: Same-sex Marriage and the Miscegenation Analogy,' 73 B.U.L. Rev. 93 (1993).
35. 405 U.S. 438 (1971).
36. 381 U.S. 479 (1965).
37. Id. at 453.
38. Id.
39. 18 Cal. 3d 660; 557 P.2d 106; 134 Cal. Rptr. 815 (1976).
40. 18 Cal.3D. at 665.
41. Id.
42. 478 U.S. 186 (1986).
43. Id. at 196.
44. Id. at 194.
45. 394 U.S. at 193.
46. Id. at 199 (Blackmun, dissenting).
47. Hardwick, at 205, quoting Roe 410 U.S. 833 (1992).
48. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
49. 505 U.S. at 83.
50. Id. at 851.
51. Id.
52. Robert P. Casey, 'The Pope John XXIII Lecture,' September 30, 1994, reprinted in 44 CATH. UNIV. LAW REV. at 824, quoting George Weigel, Ã Abortion and the Kind of a People We Are,Ã RESPECT LIFE PROGRAM (NCCB Secretariat for Pro-Life Activities), 1994.
53. Cf. James 5:20.
54. 74 Haw. 530; 852 P.2d 44; 1993 Haw. LEXIS 26; 93 Cal. Daily Op. Service 3657 (1993).
55. 1 U.S.C.A. 7 (West 1997), 28 U.S.C.A. 1738C (West 1997).
56. In November 1998, the voters of the State of Hawaii approved a new state Constitutional amendment that allowed the state legislature to prohibit homosexual marriage. These developments are discussed at greater length infra.
57. 59 HAW. 346, 349, 581 P.2D 1164, 1167 (1978) (citing Nelson v. Miwa, 56 HAW. 601, 605 n.4, 546 P.2D 1005, 1008 n.4 (1976)). This case examined the constitutionality of a Hawaiian prison regulation mandating pro-per attire for visiting females in a prison environment.
58. Id. at 74-5.
59. Id. at 531.
60. Id. at 586.
61. The Hawaii Supreme Court, in a disingenuous disclaimer, stated that it was not engaging in judicial legislation by decreeing that same-sex marriage was a legal possibility under Hawaiian state lawà "[w]hether the legislation under review is wise or unwise is a matter with which we have nothing to do.à This may well rank as the most irresponsible disclaimer of responsibility since Justice Blackmun's responsibility-disavowing ukaze in Roe v. Wade.
62. Cf. supra Note 20.
63. See 116 S. Ct. at 1623 (quoting COLO. CONST. art. II, @ 30b), quoted in Akhil Reed Amar, Ã Attainder and Amendment 2: Romer's Rightness,Ã 95 MICH. L. REV. 203 (1996) at 204.
64. Id. at 1620. The court found that Amendment 2 failed even so low a judicial standard as the rational basis standard; it was "so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects" and lacked any "rational relationship to legitimate state interests."
65. Duncan, supra note 26. Duncan decries the Court's reasoning in this case by quoting Gertrude Stein: "There is no there there." Id at 348.
66. 116 S. Ct. 1620 at *31-32.
67. Duncan, 72 NOTRE DAME LAW REV. at 368.
68. Id.
70. See note 54 above.
71. Id.
72. Jeff Sheehy, Geoff Kors, Carol Stewart, "Legislative Intent," THE SAN FRANCISCO CHRONICLE, March 27, 1997, p. A28 [Letters to the Editor].
73. "San Francisco's Hubristic Officialdom" [Editorial], THE TAMPA TRIBUNE, February 19, 1997, p. 8.
74. Don Lattin, "Church, S.F. Clash Over Partners Law: Prelate seeks exemption for Catholic Charities," SAN FRANCISCO CHRONICLE, January 28, 1997, page A1.
75. Id.
76. 32 SAN DIEGO LAW REVIEW at 173.
78. "S.F. Seeks to Replace Salvation Army's Work," SAN FRANCISCO CHRONICLE, June 5, 1998.
79. "City Hall and Labor Gang Up on Nonprofits," SAN FRANCISCO CHRONICLE, July 5, 1998.
80. See Akhil Reed Amar, "Attainder and Amendment" 2, supra. See also William N. Eskridge, Note 58 supra. For another view, that the decision in Romer is of "trivial doctrinal import," see Richard F. Duncan, "Wigstock and the Kulturkampf: Supreme Court Storytelling, The Culture War," and Romer v. Evans, 72 NOTRE DAME L. REV 345 at 372.
81. This tendency grew to a crescendo following the brutal murder of Matthew Shepard in October, 1998. In one particularly egregious example, Tony Kushner, the playwright and author of Angels in America, drew a direct moral equivalency between the Pope, for opposing homosexual behavior, and the two thugs that murdered Shepard:

John Paul II endorses murder.... He knows that discrimination kills..... the Pope and his cardinals and his bishops and priests maintain their cynical political silence. Rigorously denouncing the abuse and murder of homosexuals would be a big sin against spin; denouncing the murder of homosexuals in such a way that it received even one- thousandth of the coverage his and his church's attacks on homosexuals routinely receive, this would be an act of decency the Pope can't afford, for the Pope knows: Behind this one murdered kid stand legions of kids whose lives are scarred by the bigotry this Pope defends as sanctioned by God.

Tony Kushner, "Matthewàs Passion," The Nation, November 1, 1998.

There is little to be said in response to such mindlessly inflammatory rhetoric except to make the sober observation that rhetoric has consequences, and the 20th Century has vividly illustrated what those consequences can entail.
82. See Kevin A. Zambrowicz, "Note: 'To Love and Honor All the Days of Your Life': A Constitutional Right to Same-Sex Marriage?," 43 CATH. UNIV. LAW REV. 907 (Fall 1994).
83. 32 SAN DIEGO L. REV. 163 (Spring 1995).
84. It should be noted that Fr. O'Brien did not invoke his ecclesiastical title in the publication of this work. From a purely secular point of view, this can be looked at as a legitimate separation of personal view as a lawyer from the teaching office of the priesthood. However, from the point of view of the Church, given the indelible nature of Holy Orders, this might well be seen as an inherently unsuccessful attempt by Fr. O'Brien to distance himself from an office which is eternally and indelibly his own. Cf. THE CATECHISM OF THE CATHOLIC CHURCH, 1581, 1583.
85. There is no question that homosexual behavior is strongly condemned by the Church. The Church clearly and incontrovertibly teaches that homosexual behavior is "intrinsically disordered" and that homosexual acts are "of grave depravity" (see THE CATECHISM OF THE CATHOLIC CHURCH 2357-2357).

Many Church teachers who challenge the Churchàs stance on homosexual behavior (not to mention other teachings as well) fail to take into account the deadly seriousness with which the Church takes deliberate teaching of falsehood or teachings in defiant opposition to her doctrines. See generally THE CATECHISM OF THE CATHOLIC CHURCH 2284-2287 (on scandal); 2089 (on incredulity, heresy, apostasy and schism), as well as the Canon 751 of the CODEX IURIS CANONICI [The Code of Canon Law].

The deep gravity of false teaching by Church ministers is also clearly remarked upon in THE CATECHISM. "Therefore, they are guilty of scandal who establish laws or social structures leading to the decline of morals and the corruption of religious practice, or to 'social conditions that, intentionally or not, make Christian conduct and obedience to the Commandments difficult and practically impossible.'" Pope Pius XII, DISCOURSE, JUNE 1, 1941, quoted in THE CATECHISM OF THE CATHOLIC CHURCH 2286.

See also AD TUENDAM FIDEM, the recent proclamation by the Vatican that greatly streng-thened Church sanctions for false teaching by Catholic faculty in the theological setting. Although not directly applicable to the Law School, the letter does reinforce the seriousness with which the Church takes the propagation of blasphemous and divisive false teachings by those in her pay to transmit the teachings of the Faith to the next generation. This Papal motu proprio modifies the Code of Canon Law, Canon 750, Section 2, so that it now reads as follows:

[E]ach and everything set forth definitively by the Magisterium of the Church regarding teaching on faith and morals must be firmly accepted and held; namely, those things required for the holy keeping and faithful exposition of the deposit of faith; therefore, anyone who rejects propositions which are to be held definitively sets himself against the teaching of the Catholic Church.

THE CODE OF CANON LAW, CANON 750, SECTION 2 (emphasis added). The letter also goes on to modify Canon 1371 so as to reserve a "just punishment" for those who "obstinately reject the teachings mentioned in Canon 750, Sec. 2". The serious nature of this defiance is clear.

The fact that Fr. O'Brien teaches at the Law School, and not an ecclesiastical faculty, complicates the picture. It should be noted that, although the Catholic Church loosened control somewhat over most of the departments in The Catholic University of America in 1970, it has maintained strict control over the Canon Law, Theology, and Philosophy departments, which remain under pontifical direction and retain the status of "ecclesiastical faculties." See generally E.E.O.C. and McDonough v. The Catholic University of America, 83 F.3D 455 (D.C.App. 1996) at 458. The Columbus School of Law is not an ecclesiastical faculty, and whether Fr. O'Brien is under a direct obligation to the Church or the Law School to support church teachings beyond those obligations that already bind him as a Catholic priest is unknown. Nevertheless he remains under Church discipline and is responsible to teach as the Church, and not he, sees fit.
86. A list -- dated 6/9/97 -- from The Human Rights Campaign website ( gives the name of 351 different organizations that currently recognize same-sex domestic partnerships. Of these 351 organizations, 161 were corporations, 96 were colleges and universities, 63 were governmental organizations or governments, 15 were political organizations, 11 were unions, and 5 were religious organizations.
© January/February 1999 Eutopia: all rights reserved.

TOPICS: Constitution/Conservatism; Culture/Society; Government; Miscellaneous; News/Current Events
KEYWORDS: constitution; culture; gaymarriage; longmarch; subversives
This 1999 article illustrates how the current constitutional crisis is the end result of long, hard planning and campaigning by the enemies of Christianity, heterosexuality, and the U.S. Constitution.
1 posted on 02/28/2004 6:05:55 PM PST by Ronly Bonly Jones
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To: Ronly Bonly Jones
2 posted on 02/28/2004 6:30:17 PM PST by MegaSilver
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To: Ronly Bonly Jones; onyx; Brad's Gramma; NormsRevenge; CedarDave; Kay Soze; Impeach98; boxerblues; ..
Most interesting!

For reference:

Judaism’s Sexual Revolution: Why Judaism (and then Christianity) Rejected Homosexuality

3 posted on 02/28/2004 6:35:51 PM PST by Ernest_at_the_Beach (The terrorists and their supporters declared war on the United States - and war is what they got!!!!)
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To: Ronly Bonly Jones
That is a tough read!
4 posted on 02/28/2004 6:46:47 PM PST by Ernest_at_the_Beach (The terrorists and their supporters declared war on the United States - and war is what they got!!!!)
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To: Ernest_at_the_Beach
It was originally a law-review note, and wound up getting published by a small journal at The Catholic University of America. (The journal, Eutopia, was in business from 1997 to 2001 and can be found on the Web at
5 posted on 02/28/2004 6:56:58 PM PST by Ronly Bonly Jones (The more things change...)
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To: Ronly Bonly Jones; ZULU; CedarDave; Tijeras_Slim; William Creel; JoJo Gunn; Indy Pendance; ...
Thanks for posting the article and the links.

I'll ping some others that may wish to comment!
6 posted on 02/28/2004 7:07:51 PM PST by Ernest_at_the_Beach (The terrorists and their supporters declared war on the United States - and war is what they got!!!!)
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To: Ernest_at_the_Beach; Ronly Bonly Jones
Read for tomorrow.
7 posted on 02/28/2004 7:46:27 PM PST by Indy Pendance
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