Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, December 29, 2011

On marriage, religious liberty, and the "grand bargain"

It was only yesterday, was it not, that proponents of sexual liberalism were telling us that the redefinition of marriage to include same-sex partnerships would have no impact at all on the lives of those persons and religious and other institutions that hold to the traditional conception of marriage as a conjugal union?  Such persons and institutions would simply be unaffected by the change.  So why should it matter to them that the law treats Bill and Harold, or Sally and Sheila, as married?  Those making this argument were also assuring us that the redefinition of marriage would have no impact on the public understanding of marriage as a monogamous and sexually exclusive partnership.  No one, they insisted, wanted to alter those traditional marital norms.  On the contrary, the redefinition of marriage was (according to Andrew Sullivan and others) going to promote these norms more broadly.

When some of us warned that all of this was nonsense, and pointed out the myriad ways that Catholics, Evangelicals, Mormons, Eastern Orthodox Christians, Orthodox Jews, Muslims, and others would be affected, and their opportunities and liberties would be restricted, advocates of the redefinition of marriage accused us of engaging in "scare tactics."  No one, they said, was proposing the legal recogition of multi-partner relationships or the normalization of "open marriages."  No one, they insisted, would demand that Catholic or other foster care and adoption services agencies be required to place children in same-sex headed households.  No one, they said, would require religious institutions in their schools and social services agencies to treat same-sex partners as spouses.  No one, they said, would impose penalties or disabilities on dissenting institutions in licensing, accreditation, and the like.  No one would be fired from his or her job (or suffer employment discrimination) for voicing support for conjugal marriage or criticising same-sex sexual conduct and relationships.

That was then; this is now.  i must say, though, that I still can't fathom why anybody believed any of it --- even then.  The whole argument was and is that belief in the historic conjugal conception of marriage as the union of husband and wife is plain old "bigotry."  There is no rational basis for it.  No reasonable person of goodwill could disagree with the liberal position on sex and marriage, anymore than a reasonable person of goodwill could embrace racism.

The dispute about sex and marriage is not, according to those leading the charge for redefining marriage, a reasonable disagreement among reasonable people of goodwill.  It is a battle between the forces of reason, enlightenment, and equality, and those of ignorance, bigotry, and discrimination.  Their opponents are to be treated just as racists are treated---since they are the equivalent of racists.  Of course, we don't put racists in jail for expressing their opinions---we respect the First Amendment; but we don't hesitate to stigmatize them and impose various forms of social and even civil disablity upon them and their institutions.  (Just ask Bob Jones University.)   

The fundamental error made by some, I believe, was to imagine that a grand bargain could be struck:  "We will accept the legal redefinition of marriage; you will respect our right to act on our consciences without penalty, discrimination, or civil disabilities of any type.  Same-sex partners will get marriage licenses, but no one will be forced for any reason to recognize those marriages or suffer discrimination or disabilities for declining to recognize them."  There was never any hope of such a bargain being accepted.  Perhaps parts of such a bargain would be accepted by liberal forces temporarily for strategic or tactical reasons, as part of the political project of getting marriage redefined; but guarantees of religious liberty and non-discrimination for people who cannot in conscience accept same-sex marriage could then be eroded and eventually removed.  After all "full equality" requires that no quarter be given to the "bigots" who want to engage in "discrimination" (people with a "separate but equal" mindset) in the name of their retrograde religious beliefs.  "Dignitarian" harm must be opposed as resolutely as more palpable forms of harm.

I completely agree with Rob Vischer: "The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future.  Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates."  But there is, in my opinion, no chance---no chance---of persuading those seeking to carry forward the cause of sexual liberationism (and, if anything has become plain, it is that this is the larger cause of which the redefinition of marriage is an integral component) that they should respect, or permit the law to respect, the conscience rights of those with whom they disagree.  Look at it from their point of view:  Why should we permit "full equality" to be trumped by bigotry?  Bigotry, religiously based or not, must be smashed and eradicated.  The law should certainly not give it recognition or lend it any standing or dignity.

The lesson, it seems to me, for those of us who believe that the conjugal conception of marriage is true and good, and who wish to protect the rights of our faithful and of our institutions to honor that belief in carrying out their vocations and missions, is that there is no alternative to winning the battle in the public square over the legal definition of marriage.  The "grand bargain" is an illusion we should dismiss from our minds.

Of course, with sexual liberalism now so powerfully entrenched in the established institutions of the elite sector of our culture, there are those who view the defense of marriage as a lost cause.  I think that is another mistake---one that sexual liberals have every reason to encourage their opponents to make (and one that they have ample resources to promote).  We've all heard the argument (or taunt):  "The acceptance of same-sex marriage on a national scale is inevitable.  You had better get on the right side of history, lest you be remembered in the company of Orville Faubus."  This is what we were told about a "woman's right to abortion" in the mid-70s. But it didn't turn out that way.  Does that mean that the reverse is true and that the conjugal conception of marriage will ultimately prevail in law and culture? No. There is nothing inevitable in this domain. As Roberto Unger used to preach to us in courses I took with him at Harvard, the future will be determined by human deliberation, judgment, and choice, not by laws of history analogous or akin to the laws of physics.  As the Marxists learned the hard way, the reality of human freedom is the permanent foiler of "inevitability" theses.


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