David Rodeback's Blog

Tuesday, January 28, 2014

Rights and Rites and Right and the Right: Part Four

Some folks apparently think that the only questions pertaining to society's laws about marriage are, What is the will of God?, and its corollary, How can we best use our political power at this moment to enforce the will of God by law? I don't object to the first question, but its corollary is the stuff of tyrants. Other questions must be asked.

We have arrived at the question of same-sex marriage.

However -- and this is crucial -- in a free, pluralistic society it cannot be a single  question. It must be multiple questions. Our prior discussion here has prepared us to separate these questions and consider the implications of each.

In the first part I identified the core of our American civic morality as "life, liberty, and the pursuit of happiness." I explained in theoretical terms how these long-standing American principles require us to consider the legal/political question separately from the moral/religious question and what I will call the sociological question. This is the key point: In a free society our conviction that a thing is good or bad for individuals or society, on moral or other grounds, does not automatically tell us whether it should be legal or illegal under the law.

In the second part I offered a contemporary example of an issue where law and majority morality urgently need to diverge: reasonable legislation to prohibit discrimination in housing and employment on the basis of sexual orientation and gender identity.

In the third part I invited my some of my friends and fellow partisans out to the woodshed for a verbal intervention. I argued, essentially, that thinking the moral question is the only question, or that the moral answer is automatically the answer to the other questions, leads many good people to harm their own causes. I used strong words where weaker words have failed in the past. On good days, I said, the zealots are fighting the right battle on the wrong fronts, with the wrong weapons. On bad days they are fighting on the wrong side. I said, "You think you are defending our freedom. . . . You could and should be among freedom's ablest defenders. Instead, you are writing Amerian freedom's death sentence."

Bear in mind that I am telling you what I presently think and believe. This has evolved over the years and may yet do so. However, the more closely we approach core principles, the more stable some things feel.

In any case, I am not necessarily telling you what to think. If I could tell you anything, it would be how to think, to this extent: Separate the questions. Emphasize freedom, and I don't mean just yours. Then our ongoing debates will be on point and fruitful, as we consider where to draw lines according to American principles and how to balance competing rights and liberties.

The Moral Question

Many people are certain they know the will of God concerning marriage, including same-sex marriage. They're on different sides of the issue, and they defend their positions passionately and sometimes intelligently. Some of them are probably right, though for civic purposes that matters less in a free society than it might elsewhere.

As a moral or religious matter, my own view is a conventional Mormon one: Marriage is the union of one man and one woman, unless God commands his people (for his own purposes) to practice polygamy for a period. (I am glad not to live in such a period.) Believing marriage to be eternal but having not yet been to the afterlife, I cannot say precisely how these things might shake out there, but I have some doubts as to the doctrinal value of certain widely-accepted assumptions and speculations among Mormons.

As a matter of religious principle, I believe that all sexual activity outside the lawful marriage of a man and a woman is a violation of moral law. But here's where we separate the questions. I cannot make others' moral choices for them, even by the force of law. Nor do I think premarital or extramarital sex should be punished as a crime. Nor do I presume to know how to, or have the right to, force people to change what they are or have chosen to be. I claim no right or ability to pass judgment on the relative influence of nature, nurture, and choice in any individual life. And I have some compassion for men and women and who, by birth, nurture, or (I think more rarely) personal choice, or some combination of these, are drawn to a long-term, committed, romantic relationship with someone of the same gender, and who ache for the same opportunities, protection, and validation society traditionally affords to heterosexual couples.

When our accepted mechanism for measuring the moral consensus of the people (see the first post) determines that there is no longer is general consensus about whether gays should be allowed to marry each other, I will come to a conclusion to which I might not come in a much different society. In that context, despite my sense of sexual morality, and because freedom is also a key pillar of my personal morality and my faith, I will be unable to argue against some sort of civil union, for the legal protection, the formalization of commitment, and other benefits that it offers non-traditional couples.

But I'm not ready to call it marriage. I still think that word is taken.

The Sociological Question, and Marriage as a Word with Meaning

Marriage is a word and concept with a long-established meaning that has survived millennia of human history, while many other things haven't. I don't claim the right, and I don't acknowledge any given generation's right, to redefine marriage by fiat. I also doubt our ability to foresee the long-term impact on men, women, children, and society at large, if we assume the authority to redefine marriage.

Marriage is more than society's acknowledgement of two consenting adults' commitment to each other. It is the creation of a family unit into which children can come with the greatest likelihood that they will be happy and successful in life, and that they will become productive, responsible members of society. The proof is fairly conclusive -- I admit, in the eye of the beholder -- that children and society fare better when as many children as possible are raised by their biological parents, who live together and are married to each other. I know that this system breaks down in many instances, sometimes tragically. But we start with the ideal and make individual adjustments as necessary. Exceptions, even frequent exceptions, do not justify discarding the ideal.

In short, I am saying that marriage is much more than long-term coupling, and humanity is far less than omniscient.

I will go one step further: If the redefinition of marriage puts civilization itself at stake -- as it may -- I think redefining it to include gay couples is a much smaller problem than the loss of focus on the child. Here we come full-circle: When we jettison the sense that the state's interest in marriage is to promote the welfare of children, and by so doing to promote the welfare of civil society, we forfeit most of our ability to explain logically why marriage should be confined to its traditional boundaries.

The religious question considers religious principles -- the will of God, as we variously understand it. What I call the sociological question embraces what we learn from study and experience, about whether a thing is particularly harmful or beneficial to society. As to the child-centered meaning of marriage, the sociological question is readily answered, as I have suggested. Since we have mostly surrendered that understanding of marriage, however, we are left to focus on the sociological question of same-sex marriage itself.

We don't yet have solid data on gay marriage or children raised by married gay adults, or society when these things are widely permitted. Worse, these issues are so politically fraught that we will reasonably doubt the objectivity of whatever research might trickle in. So the sociological question exists, but the answer seems likely to be unavailable for some time to come.

The Legal/Political Question

Even if God and I happen to agree on the definition of marriage, my religious or moral conviction does not by itself justify using the force of law to impose that conviction on everyone. Religious freedom is another central tenet of my religion and a pillar of our shared American civic morality. Religious freedom includes my freedom to practice my religion and your freedom not to practice my religion, and vice versa. Even if a majority in a city, state, or nation is convinced that same-sex marriage is an abomination, this would have to be a more or less generally-accepted principle for government to be justified in enforcing it on that basis alone, with new or existing law.

It's a funny thing to say on the day of President Obama's sixth State of the Union address, but in America we prefer our people to be free and our rulers not to think themselves demigods.

Even general acceptance of a principle on religious or sociological grounds might not be enough to justify its enforcement. When we value freedom highly or judge a matter to involve a basic human right, we typically protect it against the will even of an overwhelming majority.

I have not just said that it is inappropriate for defenders of the traditional definition of marriage to engage in political acts to advocate or preserve that definition in the law. I don't feel obligated to be silent or to surrender my views, simply because others disagree. I think it's perfectly legitimate for me and a majority of Utahns (not to mention Californians) to vote for a traditional definition of marriage. So, if you put it to a vote, I will vote against expanding the legal definition of marriage to include any situation other than the union of one man and one woman. I voted for Amendment 3 to the Utah Constitution. I would vote for it again. These votes and other political actions are part of my personal participation in the established processes of determining the general moral will of the people. (See the first post.)

However, once I see that our official means of measuring moral consensus (see the first post) indicates convincingly that there is no general consensus that marriage should be limited to the traditional definition, I cannot argue for the preservation or imposition of laws to that effect.

My Circularity, Etc.

Judging the point when we no longer have sufficient consensus in a matter is a bit fuzzy and arbitrary. Moreover, you probably have detected a certain circularity in my reasoning. If you need things to be straightforward and simple, you may have come to the wrong century.

I'm free to participate in the political process, which measures the general moral consensus, but if that general moral consensus does not include my views, I'm not free to use the law to impose them. In other words, I freely participate in the mechanism which determines whether it is proper for me to participate in a particular way. I don't see a way to avoid this circularity, if we are to have laws at all, but also limit our governments and generally be free.

This is only a concern where some sort of majority (local, national, popular, legislative, judicial, etc.) is in a position to impose its moral will on society, when its will -- despite the majority -- is not generally accepted in society.

Again, I'm not saying that the zealots who rally in defense of traditional marriage (which technically is not threatened; only the traditional definition is) should shut up, go home, and stay off the Internet. I am saying that they should be a great deal more cautious in their efforts and more circumspect in their speech. I'm saying they should respect the possibility that we are at or near the point where there is no longer sufficient justification to impose majority morals on society in this matter -- which means they are, at best, dancing on the line between legitimate law and moral tyranny.

One of my new year's resolutions this year is to make my short blog posts shorter and my long blog posts shorter, too. My far outer limit is 2000 words, and we're there. I'll have to talk next time about what we (in various senses of we) can and should do going forward.

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