A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor

38 Pages Posted: 7 May 2014

See all articles by Helen M. Alvare

Helen M. Alvare

George Mason University - Antonin Scalia Law School

Date Written: May 6, 2014


In United States v. Windsor, while the Supreme Court did not treat the question of religious exemptions from state laws recognizing same-sex marriage, the case could nevertheless affect the success of future efforts to attain religious exemptions. Windsor strongly suggested that any view of marriage excluding the possibility of same-sex unions is irrational and even hateful. Religious institutions and individuals, however, particularly the Catholic Church, are leading proponents of the view that opposite-sex marriage is uniquely valuable. Also for Catholics, this view forms a central and nonseverable part of a theological worldview encompassing teachings about matters such as the identity of God, and the meaning and purpose of life as servant love. Refusing to exempt Catholics from cooperating with same-sex marriage is therefore tantamount to denying them the right to practice their faith, or even insisting that they practice a different faith.

In order to address the matter of religious freedom in the context of state-recognized same-sex marriage, post-Windsor, this article will proceed as follows: Part I. will set forth Windsor’s treatment of the nature of marriage and its characterization – as “animus” – of a refusal to recognize a marital union between two persons of the same sex. Part II. will set forth the elements constituting the cosmological and anthropological significance of Catholic teachings about marriage. Part III. will discuss the benefits offered to a pluralistic society by its continuing to allow a visibly Catholic witness on marriage. It will also acknowledge practical hurdles to such a resolution.

Keywords: accommodations, advance notice regime, children’s welfare, Defense of Marriage Act, DOMA, dignity, equality, free exercise, Lawrence v. Texas, legal meaning, marriage recognition, state, federal, procreation, religious freedom, spouses, Douglas Laycock, Robin Fretwell Wilson

JEL Classification: K10

Suggested Citation

Alvare, Helen M., A 'Bare…Purpose to Harm'? Marriage and Catholic Conscience Post-Windsor (May 6, 2014). George Mason Law & Economics Research Paper No. 14-14, Available at SSRN: https://ssrn.com/abstract=2433741

Helen M. Alvare (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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