Sunday, July 26, 2015

Don’t Allow Gay Marriage to Threaten American Pluralism

In one of the many cases now pending, this Oregon couple will likely soon lose both home and business. It doesn’t have to be this way. The answer? A sane legal balance. RFRA laws.

The situation in America for many people of faith is growing intolerable. And all indications are that it will only get worse.

Personally, I recognize many strong arguments in favor of same-sex marriage, as well as many strong arguments against it. The issue is immensely complex, with potential ramifications that are rarely raised to the level of public discussion.

Although I've long supported the LGBT movement in most of its goals, going back to the 1980s and 1990s, I was until last year strongly opposed to same-sex marriage. This wasn't simply a religious stance on my part either, but also an anthropological one. Though my position has since moved more toward support, I don't count myself as being either in the support or opposition camp. I believe rather that as of yet we cannot map out what this cultural shift even means. As regards the long-term viability of same-sex marriage in society, I think only time will tell--and by time, we should think decades at a bare minimum. Why? Because no one at present can predict how such a change in familial mores will play out over generations.

My thinking on the issue entails a special sympathy for both sides: a sympathy that pushes me this way and that. And so, though I can well understand gays and lesbians’ desire to make a clean sweep of their previous outsider status by claiming same-sex marriage as a "right" along with the other rights they have fought for, yet I see the suddenness of the push to establish this last new "right" as a step onto thin ice, one which besides is leading to systemic new forms of injustice, with results that may well prove bad for everyone, gays and lesbians included.

Among these injustices, the growing animosity against orthodox believers, Christians or others, is making possible a serious betrayal of the American project. It's this betrayal I want to address.

Many Americans seem to believe that the “definition of marriage” has been decided by our Supreme Court. This is incorrect. The meaning of marriage has not been decided by the Supreme Court because the Supreme Court has no mandate to legislate any such thing. It is not the right of courts to change the definition of a cultural institution as fundamental as 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 quite simply I do not intend to impose Catholic thinking on them. I recognize that the Catholic understanding of marriage is founded in traditions that many Americans don't adhere to and that we Americans live in a pluralist society.

I say, then, that I do not believe any church, mine included, can impose its teaching on marriage on the whole of American society. And so, even when I was adamantly opposed to same-sex marriage, I didn't attempt to make my case simply by stating my church's position. In a pluralistic society, one might argue vehemently; one cannot, however, expect to impose one's arguments as absolute.

But on precisely the same grounds, and for the same reasons, this "new" definition of marriage now being imposed by the "marriage equality" movement cannot be claimed as absolute either. It is not absolute because, first, we live in a pluralistic society, and, second and more importantly, marriage norms, in any culture, can only be decided by that culture as a whole. As I’ve argued elsewhere on anthropological grounds (see Appendix below) this “as a whole” really must mean virtually the whole of the people.

And so: When 98% of Americans recognize same-sex marriages as valid, we will be able to insist that American culture has abandoned its previous understanding of marriage. But we are nowhere near such unanimity at present, are we? What we have instead is a situation in which the meaning 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.

The upshot: Neither side can be judged to be definitively right, in the public sphere, if we are to remain true to our ideals as a liberal and pluralist society. This seems to me an evident matter of political fact. That many on both sides of the current debate don’t recognize this fact is perhaps to be expected. But that so many in the LGBT camp are now so aggressively set on denying it is disappointing. Having suffered bigotry for so long, they are swiftly turning into bigots.

The right legal path to take for the committed American pluralist is similarly clear: None of the contestants in the current battle over marriage should be discriminated against under the law. Which means that the now ascendant culture, represented by the Supreme Court’s Obergefell decision, has no right to force Americans to agree with it that these new "marriages" are actually marriages. Which entails, in turn, that those refusing to cater to these marriages either in speech or business practice must not be prosecuted or forced by law to do so. Again, this goes with pluralism, and it goes with the constitutionally protected right of free exercise of religion.

But this is not what we are seeing in America at present. Quite the contrary. We are seeing witch hunts--and worst of all, state authorities are validating and sometimes even organizing these witch hunts.

If Americans who refuse to recognize same-sex marriage 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. That would be just. But the state itself, if it is the American state, cannot begin to fine citizens or run them out of business or require them to undergo “diversity training” just for adhering to their religion. That is not the American way. So what exactly is going on?

I would argue further that school boards, universities or private companies should not be able take action against citizens based on their religious convictions on marriage, because, just as it is illegal to fire someone because he or she is a Christian or a Muslim or a lesbian, so it must be illegal to fire someone for holding firm to their traditional beliefs on marriage, which beliefs are for many a crucial part of their religion, besides having literally millennia of history and precedent behind them.

But rather than respect for the constitutional rights of religious people, what are we seeing instead? We are seeing witch hunts.

To refuse to bake a cake for or photograph a gay wedding is not "discrimination" against homosexuals as such. It is plainly, and only, 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 I would agree that the bartender should be subject to legal consequences. Because everyone has the right to order a drink. In this register all customers are equal. But that same bartender, if he were to say, “I’m 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 be in effect in all fifty states: a religious liberty protection law (an RFRA law) that would give defendants legal standing to argue in court that forcing them to participate in same-sex marriages is an intrusive burden on their sincerely held religious beliefs. Such laws are the bare minimum, and we would have them if the wisdom of the federal Religious Freedom Restoration Act of 1993 were being followed at state level. Such laws are not about discrimination, regardless of the way our mainstream media, always out for the provocative headline, presents them. RFRA laws protect Americans of many different faiths in their freedom to pursue their beliefs and traditions. If you don't believe me, if you think "RFRA law" just means an excuse to discriminate against gays, go read the article just linked.

Personally, as I say, I believe RFRA laws are the bare minimum. That they are howled against, that even corporations choose to threaten boycotts against states trying to pass them, shows how poisonous the American climate has become.

The level of rancor shown by liberal fundamentalists over this issue impels me to suggest an even more direct legal route, one I know will get little hearing, but I will propose it even so. Since marriage is deeply contested in our polity at present, 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. Yes, I can hear the screaming already. But such a law would firmly uphold our Constitution (see the arguments put forth by same-sex marriage supporter Damon Linker and by Yuval Levin). It would be simple, clear in scope, and would protect the millions of American citizens who have reasons of faith for not recognizing same-sex marriages. End of story.

And is it really true that these latter Americans are motivated by hate and bigotry, by a desire to push gays and lesbians out of the public square? Isn't it clear rather that this is generally not the case? Many of the most prominent instances we see where individuals are being sued or run out of business involve people who hadn’t previously refused to serve gays or lesbians.

This current conflict is clearly not a matter of animus against gay people but rather a matter of religiously grounded refusals of a radically novel definition of marriage. Again: End of story.

The overly dogmatic assertion of LGBT rights at present, especially the current knee-jerk belief that they must trump all other established rights, is un-American. And the insistence on such rights so confidently in the realms of marriage and family risks, sorry to say, a very evident slippery slope. To take just one possible example, one may likewise argue that everyone has a right to be a mother. Motherhood, after all, is a good thing, a natural and eternal thing, and everyone should have the right to it. So lets all support maternal rights!

Fine and good, so far. And yet, as a man, I cannot exercise this "universal right". But what if I were to insist on my right to give birth? What if I were to start attacking and demonizing anyone who claimed my new demand was out of line? And what if, eventually, the majority came to agree with me?

What we would have, I propose, is a situation almost precisely parallel to what we have seen in the marriage debate. A social fact previously seen as fixed and biologically grounded (on the one hand motherhood, on the other marriage) would suddenly be up for revision, and those against the revision would be demonized as archaic "haters".

And in our current climate no one should find my analogy outlandish or flippant either. I personally wouldn't be in the least surprised if in future decades technology did allow the possibility of men becoming “mothers”. I would see it a possibility 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'd thrill at the chance of being able to carry a baby to term inside their medically altered bodies. I've read comments in online threads stating this very desire. But as I say, I wouldn’t be among those supporting the practice. I'd support laws against it. Will that, in these coming decades, make me a “bigot”? I’m afraid it will. Which should indicate something of the misuse of this term in our present impasse.

Let the contest over marriage continue, by all means. It was perhaps inevitable this contest would come. But the state, if it is truly the American state, must not take definitive sides. Even though I personally may incline toward supporting same-sex marriage, I see it as deeply wrong that recognition of such marriages should be imposed on those who have their own long-established reasons not to recognize them.

Is the state going to return to reason? Sadly, it now seems unlikely. Rather than balanced laws that protect the deeply held beliefs of Americans, we have state-sponsored persecution and predatory lawsuits. This is not American. Even many who support gay marriage shake their heads at what is happening. It is deeply un-American.

Religious liberty protection laws are needed now. These laws are needed to erect a wall of protection around Americans whose rights to free speech and free exercise of religion are being curtailed and whose livelihoods risk being taken from them over what is, at present, a contested social issue.

If there should be a renewed push for such laws, I would ask that people in support of gay marriage think over the proposals carefully rather than merely react against them. Because this is not only a matter of LGBT rights. It is a matter of our polity and its long history of recognizing the rights of competing beliefs among citizens. And if things are getting ugly now, they will almost certainly get worse, and get worse quickly, if the current trend continues. American pluralism is not something we can afford to betray.

Eric Mader

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 whole debate context in which I made these remarks back in 2011, but post only part of my rebuttal to what I found were my opponent's reductive arguments as to "what marriage is". I begin by laying out his own argument:
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 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 predates 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 your 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.


Unknown said...

The fundamental mistake in this argument is that baking a cake for a gay wedding is somehow participating (or approving) in a gay wedding. Is selling a gun to a murderer participating in the crime? Would a baker sell a wedding cake to a divorced person? The problem, which has probably been overstated for purposes of supporting the conservative christian agenda, is quite small. Most gays would prefer to purchase their cakes, whatever, from a business that is not hostile to them. To propose that a business owner should be able to conduct business serving only certain sections of the public seems Un-American. Can I not serve blacks, Jews or Muslims. No. Because that makes even the most socially conservative person feel a little uneasy. Legal protections to people who wish to discriminate and not serve a section of society is just wrong. And those cases (thus far) of balers and florists are using religious liberty and "sincerely held beliefs" to discriminate against gays and gays only.

Eric Mader said...

Strongly disagree, Kevin. And your analogy asking whether a gun shop owner participates in a murder committed with a gun he sold, sorry, but I find it hollow. Think it through. This analogy would only apply if the customer had said: "I need a gun ASAP. I want to kill my boss."

And again, what we are seeing is not businesses "refusing to serve" gay customers. Rather we are seeing them refuse to contribute work toward something they understand as deeply wrong according to their religion. A reasonable parallel would be a Muslim print shop refusing, on grounds of religious liberty, to print a book that was blasphemous against Islam. I'd support that print shop's right to refuse to print the book in question. Wouldn't you? Or would you be in favor of the state taking the print shop owner to court and running him out of business? Forcing him to take "diversity training" classes, and if he refused, putting a lien on his house.

The print shop owner says: "Sorry, but I'm a Muslim. That book is blasphemous against Islam. I simply will not print it." Will you come back and say: "Bigot! You deserve what you get! Close down this shop!"

If you, on the other hand, support that printer's rights to refuse, I'd have to say: End of story. On the same grounds, you should support the right of bakers or photographers to refuse to contribute their work to something they deem an offense against their religion. You may deeply disagree with them. But that's what pluralism is about: respecting the rights of people one deeply disagrees with.

Unknown said...

Read your last sentence. Respecting rights of people one disagrees with---which is EXACTLY what a Muslim Print shop owner is NOT doing (as per your example). If one is going to serve the public, one must abide by the rules of conducting business. What you propose is a slippery slope that anyone can refuse doing business with anyone based on personal preference (Ahem. I mean "Sincerely Held Beliefs") Seriously? A KKK member can have sincerely held religious beliefs that Blacks should not be served along whites. By your logic, the KKK member should be able to do this based on some twisted version of pluralism? Nope. Also, regarding your comment on the gun merchant analogy: I don't understand. Why would the urgency of needing a gun equate with a wedding cake (generally ordered well in advance of the ceremony). Interested in an explanation. In any event, it has now been 2 years and not much has changed. I agree we will need at least a generation to see effect, if there are any at all (except for the happiness of future gays). Thanks!

Eric Mader said...

There is good reason slippery slope arguments are often classified as logical fallacies. In this case, yours counts as a fallacious argument because, from what you write, it's clear you haven't bothered to research how RFRA laws work or how they get passed.

"If one is going to serve the public, one must abide by the rules of conducting business." Yes, and in the US, part of the rules of conducting business include RFRA laws. That's the status quo. And it is not a matter, with these laws, of providing a blanket basis of opting out of service because of "sincerely held beliefs".

No American court would ever recognize the right of a KKK member not to serve blacks. You might check this out:

Allowing religious people to opt out of providing services to weddings their religion considers impermissible is well within the scope of such laws.

And, yes, thanks for the comment.