By STEPHEN M. KRASON
(Editor’s Note: Stephen M. Krason’s “Neither Left nor Right, but Catholic” column appears monthly [sometimes bimonthly] in Crisis. He is professor of political science and legal studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville. He is also co-founder and president of the Society of Catholic Social Scientists. He is the author of several books including The Transformation of the American Democratic Republic [Transaction Publishers: 2012], and most recently published an edited volume entitled Child Abuse, Family Rights, and the Child Protective System [Scarecrow Press: 2013]. This column originally appeared in Crisismagazine.com. All rights reserved.)
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In late May, Gov. Tom Corbett of my home state of Pennsylvania decided to throw in the towel on same-sex “marriage” and not appeal a federal district judge’s decision to strike down the state’s law that permitted marriage licenses to be issued only to male-female couples.
While Corbett is to be commended for legally defending the statute in the first place after State Attorney General Kathleen Kane refused to carry out her duty to do so, he said he would just accept the court’s decision and end Pennsylvania’s hold-out status as the only northeastern state not allowing same-sex “marriage.” Corbett claimed that an appeal couldn’t be successful.
That was an odd conclusion, since various other states have undertaken appeals of similar lower federal court decisions around the country. There is also no certainty that the Supreme Court ultimately is going to enshrine same-sex “marriage” as a constitutional right under the equal protection clause. Its decisions last year were narrow: invalidating a section of the Defense of Marriage Act that forbade granting federal benefits for same-sex couples living in states that had legalized same-sex “marriage,” and upholding a lower court’s striking of California’s Proposition 8 on the procedural ground that only the appropriate public officials — who also refused their duty to do so in that case — had the standing to appeal.
Indeed, as a former state attorney general himself, Corbett surely knew the facts about judicial process that at one time routinely were taught to law students: The judge’s decision carries no weight outside of his jurisdiction, which is the Middle District of Pennsylvania. It did not have the effect of legalizing same-sex “marriage” for the whole state — unless, at least, officials in the state wanted to apply it that way.
Media in the state perhaps got more to the core reason for Corbett’s decision: politics. His public approval rating has been low. He is up for re-election this year and is trailing his Democratic opponent. One media report said that he has recently been trying “to move to the political center” — which, of course, means in the direction of the secular left — “on several hot-button issues.” Another interpreted his decision not to pursue an appeal as an attempt to win over Democratic voters.
From a purely political standpoint, Corbett’s decision seems foolish and counterproductive. Left-leaning Democrats aren’t likely to flock to Corbett when they can have the “real thing” in November. The Republican Party has long had the tendency to allow itself to be defined by the Democrats. The Republicans try to “moderate” — move toward the positions staked out by the Democrats and leftist opinion-makers generally — in the belief that it’s necessary to win elections.
This is despite the fact that, since 1940, the track record of “moderate” Republican presidential candidates has mostly not been good. Even in Pennsylvania in the last few decades many of the most successful Republicans for the major statewide offices have been on the “conservative” side, such as Rick Santorum, Pat Toomey, and Corbett himself. The Republicans who were less successful or were ushered off the scene were the ones who tilted left, such as William Scranton III, Barbara Hafer, and Arlen Specter.
Republicans in general have often become known for downplaying long-term concerns and even sociopolitical philosophy for short-term political gain, and often wind up even losing out in the short-term. Perhaps all that Corbett will ensure is an uptick in the number of stay-at-home Republican voters in November.
Actions such as those of Corbett are troubling on a deeper, more profound level. He is apparently one of the typical politicians of today who can’t fathom the civilizational crisis that confronts us, or are just caught up in the day-to-day routine tasks of governing — “maintaining,” if you will — and can’t see past them, or simply are governed by the imperatives of politics.
For sure, one has to be concerned about these imperatives because after all one has to be at the levers of power in the first place to be able to accomplish anything. Still, if that becomes too much of a focus then power itself easily becomes the end, and the true ends of politics — and of human society and life itself — are lost sight of.
Corbett stated that as governor he had the duty to follow the laws as interpreted by the courts. Such a position comes dangerously close to saying that the Constitution — since it is that, our fundamental law, which is really in question here — equals what the courts say it is. That is just a step away from arbitrary government. It also makes the will of the courts take precedence over that of the people, as expressed through their representatives.
Didn’t Hamilton in Federalist 78 say that the fundamental will of the people, as ensconced in the Constitution, was what the courts were charged with defending from political encroachment? On the contrary, the judge here discarded the immediate expression of the people’s will in the marriage laws of the state without any justification from their fundamental will embodied in the Constitution (if anyone seriously thinks that the Constitution was meant to embody a right to same-sex “marriage” he is foolish).
If one is going to speak of duties, both Corbett and Attorney General Kane ignored their fundamental duty of upholding a law based on the will of the people who elected them. This is essentially the same thing that happened with Proposition 8 (although it was even more pronounced in the Prop 8 case, since it involved a referendum).
While one can envision a situation where a law — passed by a legislature or even a referendum — would so clearly violate the Constitution that high public officials would actually be justified in refusing to defend it, that certainly wasn’t the case here. That would be a truly exceptional, perhaps even rare, situation.
One wonders how far Gov. Corbett’s sense of his duty to follow the courts would go. If the court had ordered racial segregation in the state, would he have said the same thing? Or is such a duty dictated by the politics of the moment?
Some have said that Corbett was particularly stung by the reaction he received last year when he said same-sex “marriage” was the equivalent of a brother and sister marrying each other. While the two situations are obviously not exactly the same, they are similar. Instead of beating a retreat, he could have done the cause of true marriage a service by explaining why they are similar and what really is wrong with the notion of same-sex “marriage,” and in fact why it isn’t marriage at all.
He could also have explained the inevitable corrosive moral and practical effects that official endorsement of same-sex “marriage” will have on true marriage, the family, children, and the culture. That would have been in the true spirit of the long-lost educative function of politics that so desperately needs to be recovered in our day. The problem is that that requires not just proper understanding, but also courage.
However, it appears that Corbett, like most of today’s politicians, is “courage-challenged.” Indeed, the quality most desperately needed by people in all walks of life to counter the homosexualist juggernaut is courage.
Not much was even asked of Corbett here. It was just a question of filing an appeal and preparing an appellate case. If he did not think his legal staff adequate, any number of legal advocacy organizations would have been prepared to help him. It wasn’t like he had to face down the federal judge and actually resist his mandate and set up a constitutional confrontation; that is something that a president and not a governor must bring himself to do when the federal courts act unconstitutionally.
Again, politics — not just electoral calculation, but also “getting along” in the current political environment — seems to have trumped duty, sound judgment, the people’s will, and concern for public morality and the common good. Insufficient attention to the last point is particularly troubling for the Catholic Corbett.
He publicly said that he upholds the Church’s teaching about marriage, but made it clear that he thought he had to separate that from his public actions. In a reversal, he even said that he was going to keep his personal feelings about same-sex “marriage” to himself. Besides ignoring the fact that the homosexualists and their allies have no such reluctance, Corbett betrays the century-old American confusion between strictly religious or sectarian beliefs and the natural law. It is also the Republican version of the endemic Democratic refrain, seen for so long on abortion, of “I’m personally opposed, but. . . .”
The Congregation for the Doctrine of the Faith has made clear, however, that such a stance is no more acceptable on the question of legal recognition of homosexual unions — which seems to extend to not just same-sex “marriage” but also the now-discarded notion of civil unions — than on abortion. Over a decade ago, the congregation said that a Catholic politician is obliged to clearly express opposition to efforts at legal recognition and vote against them. If such laws are already in force, he must oppose them “in the ways that are possible for him” and “attempt to obtain at least a partial repeal of an unjust law” when complete repeal is not possible.
It seems clear that appealing a judicial decision imposing such an errant public policy is well within the obligations of a Catholic politician who is in the position to do it.
In an era when one finds Catholic politicians actually leading the charge for abortion rights, the homosexualist policy agenda, and the rest of it, Gov. Corbett’s decision can hardly be considered one of the most grievous offenses. Most of what the congregation addresses, however, are obligations of Catholic public officials to stand up to do something to stop such immoral policies when they can. History is fraught with examples of how “sins of omission,” even small ones, have grave consequences.