The situation in America for many people of faith is growing intolerable. And it will only get worse unless we stand up for our constitutionally protected rights.
Contrary to what many Americans seem to think, the definition of marriage has not been decided by our Supreme Court. No. It has not been decided because the Supreme Court has no mandate to make such a decision. It is not the place of any court to legislate the definition of a fundamental cultural institution like marriage.
As a Catholic, I could follow many other Christians and weigh in here by insisting that God has given us the definition of marriage. But I will not, and never have, followed this line of debate with secular Americans. Because, simply, I do not intend to impose my own definition on them. I recognize that the definition I believe in is founded in religious and cultural traditions that they themselves might not agree to.
But in the same manner, the definition of marriage now preferred by secular Americans is not final and absolute. This is so because marriage for any given culture can only be decided by that culture as a whole. And for myself, as I’ve argued elsewhere (see Appendix below), this “as a whole” really must mean the whole of the people.
When 98% of Americans recognize that a man can marry a man, I also will acknowledge that American culture has basically abandoned its previous definition of marriage. But we are nowhere near such unanimity at present. What we have instead, obviously, is a situation in which the definition of marriage remains contested. It is contested between two rough camps, one of which sees marriage as always between a man and a woman, the other of which claims that it can also be between people of the same sex.
Neither side can be judged to be definitively right if we are to remain true to our ideals as a liberal and pluralist society.
The implications are clear. As follows: None of the contestants in our current complex battle over marriage should be discriminated against by the law. This means that the ascendant culture, represented by the Supreme Court’s Obergefell decision, has no right to force Americans to agree with it that these now legally recognized marriages are actually marriages. Which entails, in turn, that those who refuse to cater to these “marriages”, either in speech or in business practice, must not be prosecuted or forced by law to do so. If they are to be “discriminated against” in any way, let them be discriminated against by neighbors or future customers who might of their own accord decline to befriend them or patronize their businesses. That would be within the bounds of reason. But the state itself must not force them to recognize gay marriages by fining them or running them out of business or requiring them to undergo “diversity training”.
I would say, further, that school boards, universities or companies must not take any action against such citizens that might threaten their careers, because, just as it is illegal for someone to fire a citizen on the grounds that he or she is a Christian or a Muslim or a lesbian, so it should be illegal to fire someone for holding firm to their belief about marriage, which belief is of crucial importance to many people of faith.
To refuse to bake a cake for or photograph a gay wedding is not discrimination against homosexuals as such. It is rather a refusal to recognize the newly proposed definition of marriage. As I’ve argued elsewhere, if a bartender were to say to a customer “I won’t serve you because you’re gay”, this should be seen as a very wrongful kind of discrimination and that bartender should be subject to legal consequences. Because everyone has the right to order a drink. All customers should be equal. But that same bartender, if he were to say, “I’m very willing to serve you drinks at my bar, but under no circumstances would I be willing to cater your wedding”--if he were to say this, he should be fully protected by our law.
And what law is that? The kind of law that should already have been passed in all fifty states: a religious liberty protection law (an RFRA law) that would give defendants some legal standing to argue in state courts that forcing them to participate in same-sex marriages is an intrusive burden on their sincerely held religious belief. This is the bare minimum, and this is what we would have if the wisdom of the federal Religious Freedom Restoration Act of 1993 were being followed at the state level. Such laws are not about discrimination, regardless of the way the mainstream media is painting them. They protect Americans of many different faiths in their freedom to pursue their established religious practices.
Personally, as I say, I believe such RFRA laws to be the bare minimum. But the level of rancor and the social disharmony starting to be felt impels me to suggest an even more direct legal route. Since marriage is so deeply contested in our polity, what we need are laws that stipulate something such as the following: No fines or suits shall be levied against any business, religious organization or private citizen based on differing definitions of marriage.
Such a law would firmly uphold our Constitution (see the arguments put forth by Damon Linker and Yuval Levin). Such a law would be simple, clear in scope, and would protect the millions of American citizens who have very solid reasons for not recognizing these new “marriages”. And although those solid reasons may sometimes coincide with, they are not, as LGBT activists routinely claim, grounded in animus against gay or lesbian individuals.
Isn’t that clear enough already? Many of the most prominent cases where individuals are being sued or run out of business involve people who hadn’t previously refused service to gays or lesbians. Isn’t it clear that this is not a matter of animus against gay people but a matter of a religiously grounded refusal of a competing definition of marriage?
Now one may come back and argue: “Hey, you said everyone has the right to have a drink at a bar. So, isn’t it also true that everyone has a right to get married? Aren’t you saying here that some people don’t have the right to get married?”
I’m not saying that at all. Indeed, everyone has the right to get married. It is the definition of marriage that is at issue. A gay man may retain a right to get married, but if he isn’t able to conform to the definition of marriage, as being a bond between a man and a woman, that is not the bartender’s problem. That is a matter of the gay man’s own inclinations. And those inclinations do not enter into the definition of marriage subscribed to by the religious bartender--a definition, besides, that in its essentials has been upheld by every culture in the history of our species.
One may likewise argue that everyone has a right to be a mother. Motherhood is a good thing, a natural and eternal thing, and everyone should have the right to it. Fine and good. But myself, as a man, I unfortunately can’t exercise this right. It is the definition, in the one case, of marriage, and in the other, of mother. (No one should find my analogy here outlandish either. It would not surprise me in the least if in future decades technology allowed the possibility of men becoming “mothers”. I would consider that possibility one that shouldn’t be taken up--but who’s to say what others might think? In fact I’m sure there are men out there right now who would thrill at the chance of being able to carry a baby to term inside their medically altered bodies. But I’m not going to be among those in favor of legalizing the practice. I guess I’m a bigot, huh?)
To conclude: Religious liberty protection laws are needed now. These laws are needed to erect a wall of protection around millions of Americans whose livelihoods risk being taken from them over what is, as I argue, a currently contested issue.
Let the contest continue, by all means. But the state, if it is a truly American state, must not take definitive sides.
What chance is there at present of enacting such protection laws? There is perhaps some chance of success if Christians and others who believe in traditional marriage organize themselves and demand that their elected representatives push for such laws--or else.
Or else what? Or else: “We won’t turn up on election day.”
If put in the form of a written pledge, delivered to the representative to sign, this might constitute a threat with some teeth. It’s not that the voters behind the pledge would vote for the other side. No. Rather it’s: Getting no support from either party on this important issue, we won’t vote at all.
For elected officials of the party that supposedly stands for traditional family values, pushing for such laws, making a fight out of it, is the very least they could do. And if enough state legislatures were to enact such laws, the threat from corporations (presently so eager to capitalize on the popularity of all things gay and to threaten boycotts against all who do not join in singing the praises of what Rod Dreher aptly calls “the Joy of Caitlyn Thought”)--these threats would not finally materialize.
Or perhaps: Facing down such threats would be worth it. Because something more important is at stake: namely, the religious liberty of tens of millions of Americans.
What should be the new normal after legalization of gay marriage is tragically not becoming a reality. Rather than reasonable laws that protect the deeply held beliefs of many, we are seeing state-sponsored persecution and predatory lawsuits. This is not American. Even many who support gay marriage are starting to recognize it: This is deeply un-American.
American Christians need to organize from within their churches and demand better from their elected representatives. And they better do it now as the next election cycle heats up.
If you believe in the traditional definition of marriage, make no mistake: things are difficult now, but they will almost certainly get worse, and get worse quickly, if we do not have the courage and wisdom to stand up for ourselves right now.
APPENDIX: How cultures validate marriages
I post the following to explain something of why I would insist the whole community must recognize marriages for them to be valid. I won’t try to reproduce the debate context in which I made these remarks back in 2011, but post instead only part of my rebuttal to what I found were my opponent's reductive arguments as to what marriage is.
Right at the outset you try to get at the essence of marriage by saying it is "an agreement between two people". I think this fact that you take to be so obvious is crucial to where your argument goes subsequently. Now don't get me wrong here, I don't really disagree with you. Yes, marriage is always, in our America, an "agreement between two people". But still, I find this description only partial, and that if you use it as the definitive one, you will quickly, so to speak, throw the baby out with the bathwater.
In my thinking marriage is not so much an agreement as a status. It is a status shared by two people vis-a-vis society and God. You can even leave God out of it if you like, I think my point still stands. Marriage is not so much between two people as it is, first, between two people and, secondly, between that couple and society. What's more--again even if we leave God out of it--I think we can see here the importance of a kind of "sanctifying" in relation to marriage. Cultures everywhere, ours included, typically affirm the beginning of a couple's married life with a complex ritual. This universality of ritual demonstrates, I think, that marriage has an important communal element. And so I would argue: marriage is not simply an agreement between the two people marrying, and perhaps it is not even essentially such.
When you write[, evoking your disbelief in God,] that marriage is "sanctified . . . by a group . . . yet to be seen at a podium that can read a teleprompter", I find myself asking what you can possibly mean by "yet to be seen". You yourself chose to use the word "group"--because I think you acknowledge the communal element of marriage. To me it's obvious the pastors or priests or rabbis who perform the majority of marriages in our society do just this "teleprompter reading" when they conduct marriage ceremonies: they do it as spokesperson for the "group": i.e., the community gathered for the event. And they are present and visible. What I'm getting at here is this: Even if you don't believe in the God that is the ground of these religious systems, you still must recognize, anthropologically speaking, that this is a communal ritual meant to confer a certain status on the couple. Further, that the great majority of marriages still happen via these ancient rituals is just more evidence that, as I argue in my essay, the meaning of marriage pre-dates the modern state by a long shot. These rituals reach back centuries or millennia, as you know. Marriage, even our current understanding of marriage, is much older, and more primal, than the mere "registry of marriages" that our state governments provide in city halls across the country.
But then what does it mean to base your support for same-sex marriage on this state-sanctioned aspect of marriage that finds its most tangible form in a mere license (choice B in your dichotomy)? You seem finally to be arguing that marriage is just a matter of "two consenting adults" and "a license". For me, this is such a partial definition as to be almost meaningless. It fatally impoverishes one of the central institutions of our culture. You even choose at one point to evoke a fishing license as a kind of metaphoric parallel to marriage. I know, I know, you'll say that this is because here you're trying to stress the "non-holy" or merely "statutory" aspect of marriage, that in fact this is the whole point of choice B--namely, the state shouldn't "get involved" in issues that relate to the choice A aspect of marriage, the "special" or "holy" aspect. Well, I also believe in separation of church and state, but on this point, I think you're putting the cart before the horse--way before the horse. Because, in America, the state was not founded with a charter to establish the definition of marriage. That definition had already been established by the people the state was founded to serve. Yes, the state's business may have eventually extended to offering "marriage licenses", etc., but this doesn't change the fact: the state had no charter to impose either marriages or divorces upon the citizenry. The only instances otherwise would have been when the state enforced the divorce of accidentally married siblings (I don't know if this has happened in the US) or when the state outlawed Mormon polygamy. But this latter example only further proves my point: the state was there to support monogamous marriage as the only acceptable kind because this is what the American people had recognized from the beginning. In other words, in the Mormon case the state did what it was supposed to--it defended the marriages of the vast majority of citizens against a minority attempting to change the definition to suit their own new practice.
The idea, then, that the state is entitled to change the definition of marriage is wrong. Further, even if a slight majority of citizens were to vote for such a change it would still be wrong. Why so? Because marriage is a status recognized by the community; and in the case of state or federally licensed marriages, one must say: recognized by the community as a whole. Thus if even twenty or thirty percent remain unconvinced that a couple is viably married, this should be decisive in convincing the state not to license such a marriage. The license, after all, is not the marriage itself, but merely a recognition that the community acknowledges the marriage as real. And the community, in this case, is the whole of the citizenry, not a mere majority.
What we have, then, in the case of the "marriage equality" movement is an instance of a minority pressing a) an entirely novel definition of marriage that b) has zero historical precedent, and hoping to get it established in law by c) a majority of Yea votes, while ignoring d) the sizable percentage of Americans that, whether for religious or cultural reasons, will not regard such marriages as real. This, in short, is a serious impasse. And the state shouldn't go there. Because the state's business is only to recognize marriages recognized by the community--it is emphatically not to suggest that certain novel kinds of marriage be recognized by offering to license them.
Aside from the other problems I raise in my essay, I think this problem of tens of millions of American citizens who don't agree with this changed definition should already be enough to decide the issue.
It used to be the case, and doubtless still is in some churches, that the pastor conducting the ceremony would say: "Into this holy estate these two persons now come to be joined. If any person can show just cause why they may not be joined together--let them speak now or forever hold their peace." I think the case of same-sex marriage can be considered from this point of view. There are still far too many people who would stand up and say: "Sorry, but, er, yes, I do have reason these two should not be married. They're of the same sex." You might call this bigotry if you want, and in some cases it certainly is connected with bigotry, but usually it's simply a matter of our culture's idea of what marriage is.
If it some time comes about that 98 percent of the American population believes same-sex couples can be married, then we'd be talking about a different reality and my argument here would lose much of its force. Because 98 percent would amount to communal recognition. But this is nothing like American reality at present. And so I think: case closed.
Perhaps you can see by these remarks why I think your dichotomy A [marriage as a holy or sanctified bond] or B [marriage as a legal status offered and licensed by the state] can't really support your argument. Marriage in America is both A and B. Anthropologically speaking, the two "choices" can't be separated, so ultimately they aren't choices, and your attempt to argue for same-sex marriage by saying that marriage is mostly B doesn't hold up.
And it doesn't hold up on one further ground as well. If one were pressed to choose which of the two, A or B, the institution of marriage could live without, one would have to choose B. Because choice B, as I've shown, is little more than the state's recognition of a communal reality. It is nothing but a license. It says something about the merits of their arguments that those pushing for same-sex marriage have to lean so heavily on this choice B.
I can't help but feel, Steve, that in many of my remarks above I am not so much arguing against your points as I am raising aspects of marriage you already recognize but that you have decided, in the interests of the same-sex marriage debate, to put aside. You can do this maybe because these aspects don't much matter to you.