ARTICLES
JANUARY 2005 ARTICLES
Contents © 2005
by Jim Holman.
All rights reserved.
A Clear Mixed Signal
Does Loyola Marymount Support Homosexual "Marriage"?
BY CHRISTOPHER ZEHNDER
So, why is Loyola Marymount University in Los Angeles offering domestic partner insurance coverage? That the Jesuit-run university is granting benefits to the lesbian or "gay" partners of its employees (as if these partners were spouses) was made abundantly clear in the September 2004 issue of the Navigator, the university's health benefits newsletter. But why the university decided to offer domestic partner benefits was not stated.
Said the Navigator: "LMU will now offer medical, dental, and vision coverage; Dependent Life Insurance; AD&D Insurance; and Long-Term Care Insurance to employees' registered domestic partners. If this applies to you, please contact the Human Resources Office for more information about eligibility for domestic partner coverage."
No word of explanation is given in the Navigator as to how a Catholic institution can justify a policy that, on the face of it, recognizes the validity of homosexual unions. At least four years ago, when the university announced it was offering contraceptive coverage in its health plans, the Navigator said it was doing so "to comply with Assembly Bill 39," which mandated that all businesses and even some religious institutions had to offer contraceptive coverage in their health plans. For one mindful that Catholic Charities has fought and continues to fight the prescriptions of this bill, Loyola Marymount's explanation is perhaps unsatisfying -- but at least it is something.
But with the announcement of domestic partner coverage, the university offered no explanation. The beginning of an explanation, however, may be found in the minutes of the November 30, 2003 faculty senate meeting. University president, Jesuit Father Robert Lawton "has been looking into the bills in the Legislature related to mandating benefits to domestic partners to see what the implications would be for the university," said the minutes. The minutes went on to explain that while "Fr. Lawton is concerned about the well-being of staff and faculty," because Loyola Marymount is "a Catholic University, it may not be appropriate ... to offer these services." The university, however, "would follow the law regarding providing benefits to legally domicile [sic] adults."
So, was Loyola-Marymount merely following the law when it decided to offer benefits to domestic partners? If so, then, what law? I e-mailed Father Lawton to get some idea; but besides why the university was offering domestic partner benefits, I asked Father Lawton other questions. Does he not fear that in offering those benefits the university appears to be equating marriage and homosexual domestic partnership? What measures is Lawton taking to explain this potentially scandalous situation to university faculty, staff, and students? Father Lawton answered me through Janis Johnson, assistant vice president for communications and public affairs. "Our position," wrote Johnson in a December 9 e-mail message, "is reflected in the following response: LMU now offers domestic partners benefits in response to new California laws governing employers."
Johnson did not say what "new California laws." From my research I could narrow down only two state laws approved by the assembly in 2003 that mandate some sort of domestic partner coverage. One of them, Assembly Bill 17 (adopted October 2003), however, applies only to contractors with the state government. The second, Assembly Bill 205, called the "Domestic Partner Rights and Responsibilities Act of 2003," seemed the more relevant. This bill says that domestic partners registered with the state of California "shall have the same rights, protections, and benefits and shall be subject to the same responsibilities, obligations, and duties under law ... as are granted to and imposed upon spouses." The law was to go into effect January 1, 2005.
The bill, passed in September 2003, says domestic partners "are two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." A domestic partnership is a legally recognized union, the members of which have rights and responsibilities under state law -- the same rights and duties that married couples have. The difference is that domestic partnerships can only be contracted between members of the same sex, unless one or both of the persons are over the age of 62.
But while the Domestic Partner Rights and Responsibilities Act makes domestic partnership the legal equivalent of marriage, does it place any mandates on employers as far as insurance benefits are concerned? And if it does, does it make any exceptions for religious employers?
The law does directly forbid public agencies to discriminate "against any person or couple on the ground that the person is a registered domestic partner rather than a spouse or that the couple are registered domestic partners rather than spouses," but it makes no mention in this regard of private businesses. Neither does it make any religious exemption; but it seemingly doesn't need to, since it mandates nothing of private businesses, religious or otherwise.
But, according to an analysis by attorney Bingham McCutchen on the website FindLaw, the bill's language granting domestic partners the "same rights, protections, and benefits" could impact private employers. For although the law says nothing specific about private businesses, it says its provisions "shall be construed liberally in order to secure to eligible couples who register as domestic partners the full range of legal rights, protections and benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to third parties and to the state, as the laws of California extend to and impose upon spouses." This provision, writes McCutchen, may lead a court to require private businesses provide insurance coverage to domestic partners. And since the law makes no religious exemption, the requirement may extend to religious institutions as well.
But "may extend" is not "does extend." A religious institution, like Loyola Marymount, needn't, it seems, jump the gun and perform what the law does not clearly enjoin. One would think a certain reluctance might cause the university to drag its feet -- that is, if it did not want to make the determination to fight the law.
Such a fight, said attorney Brad Dacus, would be winnable. Dacus directs the Pacific Justice Institute, which provides legal defense for First Amendment Rights of groups, churches, and individuals. Dacus said that even if the law did not exempt religious institutions, "the courts," he said, "would uphold the rights of religious institutions under the First Amendment. The state would be hard pressed effectively to enforce this law against religious institutions, because, in the name of tolerance, they basically shut down every religious institution in the state of California and ever person wishing to exercise their Christian faith. Any such enforcement or intended enforcement against any religious institution would be met by our legal team with the utmost vigor and determination and, in the end, I am confident we would prevail and make the governing agency responsible for it pay for their actions."
Recalling Catholic Charities so-far unsuccessful fight against the Women's Contraceptive Equity Act, I was somewhat surprised by Dacus' confidence. But Dacus said the Catholic Charities case is distinguishable from that of a religious educational institution. "The Catholic Charities case," said Dacus, "is dealing with health care, where the primary purpose and function is non-religious. I believe if an action was brought against a church under the same provisions, the Supreme Court would have taken it up, and the church would have prevailed. I think a bona fide religious university or institution where faith is a visible part of their daily business would prevail as well. The reason is because they are allowed to hire and fire based on the tenets of their religious beliefs and convictions; so if they are allowed to do that, then, implicitly, they're allowed to do it in regards to the benefits that go to those employees. Or else they could always fall back on their exemption for termination."
But would it be morally incumbent on Loyola Marymount to test the legal waters and not offer domestic partner benefits? Monsignor William Smith, a moral theologian at St. Joseph's Seminary in New York, said that even if the state specifically demanded that religious institutions offer domestic partner benefits, the institutions should refuse. Monsignor Smith admitted that "you can make a case from the point of view of moral theology that there is a difference between initiating a policy which you are not forced to do and establishing one which the state requires." Still, Smith said, a Catholic institution should not endorse a state law the intent of which is to make domestic partnership equivalent to marriage since "you end up sending a mixed signal."
By obeying a law, such as the Domestic Partner Rights and Responsibilities Act of 2003, a religious institution is cooperating in bringing about the law's evil consequences. "Cooperation is usually formal or material," said Monsignor Smith. "Formal is when you agree with it, material is when you don 't agree with it, but somehow your good and neutral work gets tied up with things you don't approve of. Moral theologians sometimes further distinguish when they're trying to find out whether cooperation is proximate or remote, or whether its free or necessary. So if you invented the policy -- that would be free; no one forced you to do it. We would look at that much more negatively. If it's necessary -- namely, the federal government requires it or someone else requires it, it changes it a little bit, but you still have that same problem."
And that problem, so far as providing domestic partner benefits is concerned, is, said Monsignor Smith, "how you can support [giving domestic partners benefits] without saying that you are demeaning heterosexual marriage, which is the norm. We are obliged by the [Holy See's] Congregation for the Doctrine of the Faith to work against legislation that confuses the two. The only thing in civil law that deserves the protection of civil law is heterosexual marriage; any other relationship I know of does not, and that includes same-sex. If they want to form a legal partnership, that's their business. If they want to write up their will, I suppose that's their business. If they want to write up a health care proxy, that's their business. But I don't think a Catholic institution should look at same-sex unions as if they are the same as marriage."
But if Loyola Marymount thinks it must follow what it takes the law to say and offer domestic partner benefits, university officials such as Father Lawton may still not think that same-sex domestic partnerships are the same as marriage. But will Lawton explain this and the university's actions to the university community? So far he has not, said James Hanink, a Loyola Marymount professor of philosophy. And this fact does not surprise Hanink. "What Lawton has not done, what no one expected him to do, and what he will not do, is to speak up honestly and openly: to seize a unique teaching moment to explain the Church's teaching on homosexuality and its implications for public policy.
"And why not?" asked Hanink.
"Ironically, it's Ludwig Wittgenstein who gives us the interpretative key to Lawton's policy," Hanink continued. "Of the deepest philosophical confusions, Wittgenstein observed, 'for a mistake, that's too big.' The point is this: Lawton's track record makes sense but only if we see it in terms of his not, for whatever reason, having any commitment to teaching, with the Church, about homosexuality and public policy. Having said this, I can only hope that I am wrong. I invite Father Lawton, then, to look at his record and to tell us, as my students say, 'where he's coming from.'"
Wherever Lawton himself is "coming from," his university seems to have embraced the homosexual rights agenda. For instance, Loyola Marymount sponsors a Gay Straight Alliance, the website of which offers a "resources" page (http://aslmu.lmu.edu/gsa/resources.htm) with links to websites offering, for instance, advice about "coming out," or information about various gay rights issues. One of these rights sites is "Freedom to Marry," which describes itself as "the gay and non-gay partnership working to win marriage equality nationwide."
And Loyola Marymount has a reputation, it seems, in the homosexual world. A website, the Conference for Catholic Lesbians, Inc., lists fourteen "lesbian and gay-friendly parishes" in the archdiocese of Los Angeles. In this number stands Loyola Marymount University.