David Rodeback's Blog

Friday, January 31, 2014

Rights and Rites and Right and the Right: Part Five

Whatever happens in the tempetuous saga of marriage and the law, we must fortify a defensible position which allows us to protect religious freedom. We must counter the work of bullies and opportunists. And we must forsake a popular definition of religious freedom which doesn't even make sense.

Most of the people who favor same-sex marriage are decent, reasonable human beings, but, like any group, this one includes a few bullies and opportunists. The bullies want to force everyone to believe the right things, or at least act as if they believe. It's not enough for them if two gay people can get a marriage license and tie the knot. They insist that everyone cheer the happy couple and never utter a dissenting syllable -- and, ideally, never think a dissenting thought. For their part, the opportunists want to use the dynamic state of our laws and morals as a opportunity to legalize certain other lifestyles and, if possible, remove their social stigma. Polygamy comes to mind. I'll reluctantly mention some others below.

The legalization of gay marriage nationwide may be inevitable, likely, or just a strong possibility. I'm comfortable with the idea of opposing it now politically, within limits, but we should also prepare a strong fall-back position.

Meanwhile, no matter what happens, one of the best things we who favor the traditional definition of marriage can do is to have the best traditional marriages we can, raise the best children we can, and teach those children by word and deed to be active, intelligent, responsible citizens of a free nation.

Opposition

Let us preserve a healthy respect for freedom, remembering that God's will, as we variously understand it, does not constitute sufficient grounds for preserving or creating a law. Within these bounds, we should feel free to oppose changes in the legal definition of marriage.

I previously noted the circularity of my view: We should actively participate in our public mechanism for measuring society's moral consensus -- our government, at various levels -- with respect to this issue, until we see that the requisite general agreement on the definition of marriage no longer exists in our state or nation. At that point, even if we're still in the majority, we must cease to use the law to impose and promote our view in this thing. In deference to others' rights and freedoms, we must thereafter confine our efforts to persuasion and example. If a general consensus still exists, but our legitimate institutions through legitimate processes determine that gays' right to marry is a fundamental right, we must similarly limit ourselves. We protect fundamental rights even from very large majorities or cease to be Americans.

I readily acknowledge a risk here. We could freely choose self-destruction as a civilization by prioritizing freedom over state enforcement of the will of God as a majority (or someone else) understands it. But that's only if our other means for promoting moral law (e.g. preaching and persuasion) fail. I think we're certain to self-destruct, and more quickly, if we allow or require our government to act as the arm of whatever God we worship.

Risk and circularity notwithstanding, this is my present view. I wish I knew how to describe it more simply. Reading my first post in this series may help.

I'm comfortable with the idea that you may disagree. I'd love to hear your reasoning. 

Utah

Meanwhile, I support the Utah Attorney General's effort to defend Utah's constitutional definition of marriage (Amendment 3) in the federal courts. Not only is this part of the established and legitimate process of measuring society's moral consensus. It also is a defense of the most crucial and legitimate part of that mechanism: the people's vote.

In some other states, legislatures voted, then the people voted. When the result of that process was the legalization of same-sex marriage, we might think the people were unwise, but we can't say the process was illegitimate.

In Utah, by contrast, a federal district judge unilaterally ruled Amendment 3 unconstitutional. While it's true that the judiciary is part of our formal mechanism for measuring the moral consensus in society, this judge didn't want to be part of the mechanism. He wanted to be the whole mechanism. Otherwise, he would have immediately stayed his ruling, pending the inevitable appeal, as one of his more respectful colleagues in Oklahoma did later. Then we might simply have said, "This is our process. We have to let it work." Instead, Utah had to petition the US Supreme Court to stay the lower judge's ruling.

Utah has hired a high-powered constitutional lawyer from the DC area, Gene Schaerr, to lead its case. As a taxpayer (among other things), I'm okay with that. I'm also enjoying a small-world moment. The summer before last, I was a guest in his home for a few days. I won't claim that we're close friends, but I did find him and his family to be very gracious and kind, and I savored the intelligent conversation over breakfast. I'd love to have more of that conversation, during and after his new adventure. I wonder what we'd find to talk about.

There has been much hand-wringing, in places ranging from the New York Times to the Salt Lake Tribune, because Schaerr told his colleagues that he considers his role in this to be a family and religious duty. These folks don't think that he'll appear before panels of judges, declaring the will of God and calling them to repentance. That would be legal malpractice, among other things, and I would want Utah's money back.

Their actual objection is to people who make political or legal arguments rooted in religious convictions. This hostility to religion is toxic to good government, but I can't say that the animus against religion and religious people is altogether misguided. Look how may Utahns, for example, demand that their sectarian moral (religious) principles be codified in the law. See how many Utahns only refer to freedom in these debates when they're insisting that the presence of people who think differently violates their own religious freedom. I would insist that religious people belong in the public square in any case, but I would rather the anti-religious crowd were completely unjustified in their fears.

When Schaerr argues in the federal courts, he will not argue that homosexuality is an offense before God or that licensing same-sex marriage will lead us inexorably to the fate of Sodom and Gomorrah. He's not an idiot. He knows the courtroom isn't a church. He will likely make a constitutional and procedural argument about respecting the duly determined will of the people of the State of Utah. He will likely oppose the assertion that the Fifth and Fourteenth Amendments' language about equal protection requires states to sanction non-traditional marriages. He may question the federal claim of jurisdiction over marriage. He will argue in the realm of case law and legal philosophy. He will not mock the people and our institutions by channeling Moses or (a bonus for you Mormons out there) Abinadi.

If the higher courts uphold the district judges' rulings, I think we must concede that the legitimate processes have determined there is no longer the moral consensus in American society to support a ban on same-sex marriage. I won't be happy about that. I'd rather it were decided by the legislative process, not the judiciary, and at the state level, not the federal. But the federal judiciary is a part of our mechanism.

If that happens, what are we to do?

The State's Interest in Marriage (Beware the Opportunists)

Some who oppose same-sex marriage want to remove the state (meaning government generally) from marriage, to prevent the state sanctioning marriages which offend them. But I still see an important state role in regulating marriage.

I wrote last time that the strongest case for the state's interest in traditional marriage is the welfare of children and the resulting long-term health and stability of society. It is more than the permanent union of two people who love each other. Losing that vision, as we mostly have, invites more grief and destruction than same-sex marriage itself could ever cause.

That loss leaves us with a narrower state interest in marriage. Difficult as it may be, if we sanction same-sex marriage, we need to find a way to keep polygamy and other even less savory lifestyles illegal -- at least so long as there is a general (not necessarily universal) moral consensus against them. We also need to keep reasonable age limits for marriage, with and without parental consent, to protect as many young people as we can.

None of this will be automatic. Depending on the zeal, the haste, and the particular legal reasoning with which we redefine marriage, we could lose our legal grounds for prohibiting polygamy.

We could lose a lot more. I'm sorry even to mention it, but we could lose prohibitions on bestiality. (Don't google it. Use a dictionary.) We could forfeit the legal protection a gay twelve-year-old boy should have against his addled parents marrying him off to the 53-year-old local chapter president of the Man-Boy Love Association. (Remember them?)

So let's not get the state out of marriage altogether.  There are too many of those opportunists I mentioned in the beginning, and some of them are predators.

Looking Ahead (Beware of Bullies)

Those who wish to reinstate a traditional view of marriage in the law, once it is lost, will have to confine themselves to persuasion and example, and they will have a huge task in trying to persuade the generality of society. It's hard to put legally-dispensed toothpaste back into a tube.

However, the prospects are not all grim. Those who choose traditional marriage will still be allowed it. One only rarely hears someone advocate the wholesale abolition of marriage, and no credible voice for gay marriage proposes to limit marriage to gays. I can live my personal religious principles just as well in a society which allows gay marriage as I can in a society which bans it. I am more concerned with freedom in other senses, which is threatened by the bullies I mentioned above.

Religious freedom can be adequately protected in a society where same-sex marriage is recognized, but there is no guarantee that it will be. We should be bending more effort than we are in this direction. If we are to have same-sex marriage in our society, we must insure that it is no crime -- "hate speech" or otherwise -- to promote the traditional view, even to the point of preaching publicly that someone's lifestyle is evil.

We must guarantee churches, chaplains, and clergy the right to refuse to marry anyone for any reason; we must not use law to force a church, chaplain, or priest to perform gay marriages as the price of performing any marriages at all. Similarly, if the Catholic Church does not wish to extend its adoption services to same-sex couples, the law should not force them out of the adoption business, as it did in Massachusetts.

As a matter of economic freedom as much as any other kind, we must not force people, businesses, or institutions who support or participate in traditional weddings to provide their services to same-sex weddings, if they do not wish to. If Joe's Photo Shop wishes to confine its wedding services to traditional couples, and Mary's bakery wishes to decline to make wedding cakes for same-sex couples, they must be free to do this without the threat of civil or criminal penalty. (This only contradicts my position on non-discrimination in housing and employment if you value the right to purchase a wedding cake at the bakery of your choice as highly as the right to live in the city of your choice.)

If you're paying attention to the news in this decade, or even yesterday, you can see that we already have a problem or two. In this realm of policy there are more bullies than opportunists.

If we are vigilant and wise, we should be able to defend religious freedom as I have described it here. We have better tools and stronger traditions here than in Europe, where they're struggling in that respect.

Some people argue, these days, that my religious freedom is infringed by having people in my workplace and my community who disagree with me and live accordingly. T hink about that: If my religious freedom is contingent upon my ability to infringe upon your religious freedom, yours must include the ability to infringe mine. So neither of us is free. So that must not be how religious freedom works.

If we're to be effective, we must not waste any time, energy, or credibility defending an odd, contradictory, indefensible notion of religion freedom. We'd best occupy ourselves with the real thing.

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