John Tuskey: “And They Became One Flesh: One Catholic’s Response to Victor Romero’s ‘Other’ Christian Perspective on Lawrence v. Texas”
And They Became One Flesh: One Catholic’s Response to Victor Romero’s “Other” Christian Perspective on Lawrence v. Texas
John Tuskey, 35 S.U. L. Rev. 631 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
To better understand Dean Romero’s ultimate answer, it is useful to consider his answer to several subsidiary questions that his original question subsumes: How should Christians regard homosexual activity? Are homosexual acts always immoral? How should Christians respond to Lawrence as a judicial decision? Is Lawrence an unjustified exercise in judicial activism, or is it a legitimate extension of the constitutional principles of equality and justice? If Lawrence paves the way for legal recognition of same-sex relationships as marriages, as many fear, should Christians resist or embrace that result?
Dean Romero argues that Christians should not regard homosexual acts as per se immoral. In Dean Romero’s view, the real dividing line that Jesus Himself has set between moral and immoral sexual acts is between those acts that involve “self-indulgent sexual behavior that comodifies persons,” and acts that “express genuine love between two committed individuals.” Thus, “a Christian sexual ethic should embrace love and reject lust, whether between a man and a man, a woman and a woman, or between a man and a woman.”
Dean Romero views Lawrence as a natural extension of the Supreme Court’s privacy cases and of the Court’s decision in Romer v. Evans, in which the Court held that a Colorado constitutional amendment that prohibited state municipal subdivisions from enacting laws that treated homosexuals as a protected class violated the Equal Protection Clause. Because Lawrence was a natural extension of those cases, and, indeed, because Lawrence’s result was “long over-due,” criticism of Lawrence as an unjustified exercise in judicial activism is misguided. Moreover, writes Dean Romero, Lawrence’s decision that states may not make private consensual sodomy a crime echoes in its “commitment to societal outsiders” Jesus’s call to “care for the least among us.”
As to the charge that Lawrence paves the way for legally recognizing same-sex relationships as marriages, Dean Romero notes that “both Kennedy and O’Connor [in her opinion concurring in the judgment] are quick to limit their opinions to the narrow issue of whether same-sex activity may be criminalized; Lawrence says nothing about the legality of same-sex marriages.” But Dean Romero goes on to state that “the only pragmatic recourse for Christians sympathetic to Jesus’s call for social justice would be to press for” legal recognition of same-sex marriages. Dean Romero finds precedent for this recognition in Loving v. Virginia, in which the Supreme Court held Virginia’s anti-miscegenation statute unconstitutional. While not “assum[ing] ill will on the part of Christians who oppose legally recognizing same-sex marriages,” Dean Romero wonders whether those who oppose same-sex marriage are “unconsciously perpetuating ‘heterosexual supremacy,”’ just as the Virginia miscegenation law perpetuated “White supremacy.”
As a fellow Christian (in fact a Catholic) and Constitutional law teacher who might well be considered a part of the “religious right,” I find, surprisingly, perhaps, to some, some points to agree with in Dean Romero’s essay, at least at a relatively high level of generality. For instance, Dean Romero is certainly correct, in general, about the primacy of love in Christian ethics. But he is wrong about the specific implications of Christian love for the morality of homosexual activity and the recognition of same-sex relationships as marriages. Moreover, for reasons I will explain in the remainder of this article, I disagree with each of Dean Romero’s answers to the questions raised above.