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.

Tuesday, July 30, 2013

Response to Marc About Reciprocity and the Political "Middle"

Because of vacation travel, I've been delayed in responding to Marc's good questions about my suggestions that religious-liberty claims for traditionalist believers need to appeal to "reciprocity" (accompanied by recognition of others' claims) and need to seek to reach the political/ideological "middle."  Marc asks "why--on what grounds--[Tom] holds (or seems to hold) to the comparatively sunny view of [the effectiveness of] sympathetic reciprocity in politics," compared with a view that "the acceptance of a 'live and let live' ethic [is] more dependent on considerations of public salience, political prestige and influence, effective rhetoric, cost, the vagaries of public opinion, cultural trends--in sum, is it far more dependent on considerations of cultural and political power?"  He also asks on what basis I might say "that the middle's opinion of the strength and importance of the rights in conflict"--same-sex marriage and traditionalist beliefs--will lead them "to believe that trade-offs of rights are warranted, and that a policy of 'live and let live' is justified."

First, I think my advice about same-sex marriage and religious liberty rests as much on a realistic judgment as on a general "sunny" judgment (that opposing views easily and quickly reciprocate in politics).  I'm looking to the cultural and political context of this issue, and saying (in part) something closer to "Reciprocity here is the worst strategy, except for all the others."  I just don't see what's going to turn around the march toward increasing acceptance/endorsement of same-sex marriage.  I'm not sure I need to rehash the strength of that shift (from 39 to 50 percent over 2008-2013, a move of "quite unique" speed, according to a Pew researcher quoted in this Wall Street Journal commentary piece), or the heightened support among young vs. older Americans that means the shift will likely continue (70 percent support among 18-29-year-olds compared with 41 percent among those 65+ and 46 percent among those 50-64, according to Gallup).  And while I acknowledge (happily) that opinion has halted on, even turned away from, endorsement/approval of abortion, the evidence of which I'm aware suggests that this stems from factors, like ultrasound images, that have made the unborn visible and thus elicited sympathy for them.  I see no parallel factor concerning same-sex marriage.  The visible cases that move people all involve gay couples, and the children they are raising, who are harmed by an inability to marry.  (The exceptions are impositions on potentially sympathetic religious objectors, but sympathy there leads to protecting objectors' religious liberty, not denying same-sex marriage.)  In this context, I judge, the strategy of stopping the recognition of same-sex marriage is likely to make traditionalists, and their own claims to liberty, unsympathetic to an increasingly number of people--again, people in the middle whose views will be crucial.  And when stopping recognition is the main issue, appeals to traditionalists' religious liberty are easily dismissed as mere ploys for that purpose (I've seen this reaction in states where I've worked for stronger religious liberty protections).  These dynamics, it seems to me, make prioritizing opposition to same-sex marriage recognition a much less promising strategy for traditionalist terms, in practical terms, than is appealing to reciprocal recognition of rights.

With all that said, I do believe that reciprocity is, not infrequently, effective in strengthening liberties.  One example is the easing of intolerance against American Catholics in the mid-20th century.  Many things caused that, but among them (as I've described here, echoing many other scholars) was that the Church announced its commitment to religious liberty in principle, moving away from doctrines that treated religious liberty for non-Catholics--or could reasonably be seen to treat it--as merely a prudential matter, applicable only when Catholics weren't a majority.  (To be clear, my piece argues that the anti-Catholicism was always unwarranted, an overreaction, given American Catholics' actual longstanding support for religious freedom; nevertheless, the official doctrines gave even reasonable people pause.)  Today's situation seems analogous.  A significant religious group (Catholics then, traditionalists today) is capable at some times and places of restricting or disfavoring others' important interests (religious liberty then, marriage today), but is itself subjected to restriction and intolerance (anti-Catholicism, coercion of objectors to gay marriage), in part because of its attempts (or perceived attempts) to disfavor/restrict others.  In the mid-20th century, Catholicism's increasingly explicit affirmance of others' liberty (culminating in Dignitatis Humanae) contributed to reciprocal responses: the end of the "no Catholic president" rule, acceptance of Catholics in other parts of public life, etc.

(I concede that the story above is complicated--the price that society imposed for increased tolerance in the mid-20th century arguably included some weakening of Catholic identity, and things have taken other negative turns since then--but still, I think, the advance at mid-century was real and good for the Church in many respects.  My argument also doesn't depend on equating the two situations in every way: I understand that many will argue the principled embrace of religious liberty was consistent with deepest Christian principles while acceptance of same-sex marriage is not.  The point of analogy is simply that greater recognition of others' rights and interests can help increase reciprocal recognition of one's own.) own's one.)

More generally, many of our liberties rest in part on commitments of reciprocity.  We accept the  protection of rights of free speech and religious exercise, even for views with which we (deeply) disagree, in part because we expect return commitments that our own speech will be protected.  Historically, disestablishment of religion happened partly as a matter of reciprocity: churches decided to give up seeking legal supremacy or favoritism based on the expectation that other churches could not get those goodies either.  It's true that such decisions were partly pragmatic: with increasing pluralism, each church came to realize it might be in the minority.  But reciprocity as an operative principle can be triggered by pragmatic considerations and still have moral meaning and force (principle and pragmatics often coexist and interact in complex ways).  Marc, you include "effective rhetoric" among the "considerations of cultural and political power" that might determine things.  Reciprocity can be both a fair principle and (because it is fair) "effective rhetoric"--and, for reasons I've already given, the best (least imperfect) strategy for traditionalists today.

Finally, Marc asks how we know what the political "middle" thinks, both about same-sex marriage and about religious liberty.  I've already said why I think the increase in support for the former will continue.  As to religious liberty, there are reasons to think it has appeal (not unlimited, but still meaningful) to many people in the middle even if they disagree with the particular religious view claiming the freedom.  Let me give one example, if I can indulge myself with a quote from my article on why progressives should support freedom for religious organizations (an article that makes the bet to which Marc is asserting his friendly challenge):

Quite a few liberal Catholics, it appears, care about the religious-liberty issues.  The Pew Center in 2012 found that 56 percent of Catholics agreed with the bishops’ concerns about religious liberty—on which the [HHS] mandate was the key issue—versus 41 percent of Americans overall. The 56 percent must include many Catholics who dissent from the bishops on contraception itself, since we know that large majorities so dissent, and since in the Pew poll 51 percent of Catholics “sa[id] Barack Obama best reflects their views on [other] social issues such as abortion and gay rights.”

[*] Catholics Share Bishops’ Concerns About Religious Liberty (Aug. 1, 2012), http://www.pewforum.org/Politics-and-Elections/Catholics-Share-Bishops-Concerns-about-Religious-Liberty.aspx.  A June 2012 poll showed that 57 percent of Americans, and a higher percentage of Catholics, favored exempting religious organizations.  See New Poll: HHS Mandate Hurts Obama with Women, Catholics, Life News (June 19, 2012),  http://www.lifenews.com/2012/06/19/new-poll-hhs-mandate-hurts-obama-with-women-catholics/.

I include liberal Catholics among the center-left many of whom who are reachable on religious-liberty issues (it also obviously includes non-Catholics and some non-believers).  Appealing to reciprocity and aiming to reach moderate supporters of same-sex marriage are a bet, I'll admit.  But I think they're the best bet for traditionalists' religious liberty under the circumstances today and in the foreseeable future.

I should be straightforward and acknowledge my own view on merits of these matters: I'm ultimately not convinced by the arguments against same-sex marriage, and I think the better prospects for reaffirming the value of marriage as an institution for social stability lie in including same-sex couples in the institution.  But I think my strategic advice still holds up independent of my own views on the merits.  Marriage traditionalists will have to be able to assert, credibly, arguments for reciprocity of rights, in a society that increasingly disagrees with them on the matter of same-sex marriage.  


Berg, Thomas | Permalink


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Thanks, Tom, for a terrific response.

Posted by: Marc DeGirolami | Jul 30, 2013 3:35:45 PM