Now that our “insane national freak-out” about Indiana’s religious liberty bill has subsided a little, it’s worth stepping back to reflect on what happened and what the drama might mean for religious conservatives. Ross Douthat said nearly everything that needs to be said in his two posts; I note up front that I agree with his substantive analysis of the law completely, and am inclined to agree with him on the question of making cakes.
Where to begin? Perhaps with “the hypotheticals,” which many progressives deployed to create anxiety that Indiana’s RFRA would usher in anarchy or weave any number of discriminatory practices into our social fabric. Though it was written in the middle of Arizona’s scrum, Jonathan Merritt’s post at The Atlantic is a fine example: Merritt warns conservative evangelicals that protections for discrimination could be used by a Unitarian cake-maker against conservative evangelicals.
Some writers mocked the progressive use of such hypotheticals, but I think we should take them seriously. Like all such argumentative tactics, hypotheticals can function in one of two ways: they can be predictive of “slippery slopes” that could become more plausible if a particular law is passed, or they can be attempts to find some limiting principle that would apply regardless of the social conditions. I take it that in religious liberty conversations, progressives are generally deploying such hypotheticals in the second way.
And that’s exciting. It’s great that progressives are suddenly interested in using reductios to find limiting principles to particular legislative decisions. After all, it wasn’t so long ago that we were told deploying hypotheticals was merely fear-mongering. Back when we were still talking about whether gay people could marry, conservatives argued that if the courts expanded marriage they would have no fundamental basis for limiting the institution to couples. Even if polygamy never comes about, there would be no principled basis for preventing it. That concern was resoundingly dismissed; only now we’re supposed to take such hypotheticals Very Seriously.
Two asides, though, before moving on: First, even if framed as predictions, the polygamy reductio is much more plausible than those offered in the past two weeks. Given that our great corporate overlords are comfortable deploying polyamory in advertisements, will anyone be very surprised in a decade when the polygamy cases start working their way through the courts? Second, the search for limiting principles in RFRA cases is impossible, since it is a guideline that the courts adopt, which means it proceeds essentially case-by-case. But still, conservatives shouldn’t oppose the use of such hypotheticals per se in order to identify the underlying principles and limits of the law.
Still, limiting principles are a knife that cut both ways. Douthat’s list of questions for progressives pursuing LGBT rights is worth re-reading at this point, even if it risks, you know, giving people ideas.
Let’s pick one that might affect many of our readers more than others: the question of whether religious colleges and universities like Biola, or Liberty, or Wheaton, or any others that maintain sexual behavior standards for students and faculty that prohibit same-sex sexual activity should lose their tax-exempt status. At first blush, this scenario seems too fanciful to be meaningfully predictive. As an anonymous commentator suggested to Rod Dreher, the tax-exempt status of such institutions is “too deeply embedded in American thought and law to be at serious risk right now.”
But the obvious rejoinder is that twenty years ago, the concept of marriage being limited to one man and one woman was too deeply embedded in American law and culture for anyone to think it was at serious risk. Everyone expects the Supreme Court to definitively bring that restriction to an end in June. Even if the question is only one of principle, and not a prediction, it still deserves an answer from those who are sympathetic to the LGBT cause: why shouldn’t Christian institutions of higher learning lose their tax exempt status and their federal funding (via student aid)? For most institutions, losing both would be a death blow: but if our progressive friends are serious about ending an intrinsically and structurally discriminatory regime of sexual mores (on their view), wouldn’t they have every reason to pursue such measures?
Now, that may be an unpleasant scenario for those who went to such religious institutions and have fond memories of them. It may even be distasteful to those with unhappy memories and who think such schools should change their policies and doctrines. But there is a wide gap between disliking the fact that the pursuit of LGBT rights makes some people mean (as the unfortunate pizza owners discovered) and providing principled reasons for why, given the logic that the LGBT cause has used to advance its own rights and that sympathizers have adopted, such restrictions and prohibitions should not be pursued.
Such are the stakes of the great dispute that is upon us about how gay rights can co-exist with religious liberty. Which is why it’s curious to read libertarian writers like David Harsyani or Conor Friedersdorf or Ben Domenech seem surprised by the pervasiveness of the conflict. Friedersdorf thinks that it is only a “faction” of gay marriage proponents that want to exclude those who have objections (religious or otherwise) from meaningful participation in public life. But while he’s right Julian Sanchez persuasively argues our current situation with respect to gay rights is nothing like Jim Crow, the LGBT community has made all of its legal and political gains the past twenty years by arguing that those who object are motivated by animus or bigotry. The one lesson that everyone in the gay marriage dispute should agree on is that the law has a pedagogical function: having been told (now) by the Supreme Court that objectors are motivated by animus, our society is simply starting to believe it. What else would we expect? It is precisely what conservatives have been arguing about the institution for the past twenty years, and on this they have once again been vindicated.
Or consider this otherwise excellent article by Kirsten Powers, whom I enjoy reading and admire a great deal for her unabashed willingness to say precisely what she thinks. She chastizes the LGBT community for being sore winners—but that framing of what’s happening presupposes that having won, the LGBT community would shift the basis and terms of the arguments which had gotten them there. It’s not like the advancement of the LGBT cause was built on the presupposition that those who oppose gay marriage are misguided but otherwise okay people. The LGBT movement, by and large, really believes its own (silly) rhetoric about being on the “right side of history,” and damned if they won’t let a regressive business owner or two get in the way of bringing that history about. They aren’t being “sore winners”: they’re simply in the process of working out the terms of the case they have so successfully made.
Now, perhaps this description of the “LGBT movement” is too broad and not helpful. And maybe it doesn’t describe the very nice gay couple down the block. There are, no doubt, countless very normal LGBT individuals who don’t have an interest in pressing the conclusions of the movement which gained them cultural esteem quite as far as we’re seeing. And good on ‘em for it. But it’s far too simplistic of an account of the world to ignore the activists and how the rhetoric and arguments have come from the top of the LGBT world. And if we look there, well, such activists aren’t exactly bashful about what their aims are. Friedersdorf may be right that it’s only a “faction” that is interested in removing conservative Christians from the public square, but that “faction” has a good deal of clout. It was a New York Times writer, after all, who suggested that society should “stamp out” views like those I hold. But given the premises at work in the gay rights movement, that’s an entirely reasonable and understandable position to hold.
There is no room for naivety about our current cultural crisis. Only within the evangelical world naivety is the dominant problem. Young evangelicals who are increasingly sympathetic to their cause want to make nice with gay marriage while supporting religious liberty, but until we are given arguments for how they can coexist given our current legal and political history, we have no more reason to think that is possible than that we could unwind marriage from politics altogether (which is the ultimate libertarian fantasyland). The people who are now shouting about “religion-based bigotry” may be outliers now, but if Frank Bruni has his way they’ll be the future of the movement. After all, Rachel Held Evans thinks that conservatives have blood on their hands. If that’s not sufficient reason to do whatever it takes to eradicate such views, I don’t know what is.
So while it’s nice that Jonathan Merritt recognizes Bruni’s “strong-arm tactics” are “deeply troubling,” a careful reader will observe that he does not object to Bruni’s construal of the backwardness of religious conservatives. In fact, Merritt’s main argument against Bruni is that he’s going to embolden conservative evangelicals by framing them as persecuted. Apparently Merritt thinks its better to be nice to us so that none of us say anything, ever. With friends like these…
Now, I don’t know where Merritt lines up on the substantive question of gay marriage. And I suspect he’d be “troubled” by the suggestion that religious colleges and universities should lose their tax-exempt status. I do know, however, one young evangelical who has a high-level position at one of America’s pre-eminent evangelical magazines who thinks they should because they are a sign of the church’s mistaken “privilege.” And Relevant Magazine seems like they want to avoid the subject altogether (“Leadership!”) while we all engage in a group hug.
But other young evangelicals who substantively affirm gay rights and think that the church needs to be reformed along the lines Bruni suggests should come clean on which of Douthat’s list they repudiate, and more importantly, why. If we adopt the Supreme Court’s position that the only motivation for objecting to same-sex sexual behaviors is animus, what philosophical or theoretical basis is there to not take such a cultural claim to its conclusions? If we think, with Rachel Held Evans, that the dominant Christian theological tradition is substantively no different in its social harms than any secular or philosophical repudiation of same-sex relationships, then why should we leave any social space (much less ecclesiastical space!) for those who disagree?
It is possible to think of religious liberty as only accidentally or tangentially related to the questions of gay marriage, as an unfortunate causalty of a pre-existing culture wars that conservatives reached for as a last ditch measure because they had lost every other dispute. And there’s some validity to that story. But the conflict with religious liberty is a structural feature of our current pursuit of gay rights, not a bug. An anti-liberal approach toward dissenting views is part of the DNA of the logic of the current gay rights argument. As long as the pursuit of “equality” continues to go forward on the terms it has, religious liberties for non-affirming communities and believers will necessarily be constrained and the opportunities for such believers (who are known to be so) to participate at the highest levels of our society will be cut off.
That claim needs some defending. So lets give it a go. Imagine, for a moment, that cultural conservatives are right that the family which begins within the union of a man and a woman is a morally unique institution, irreplacable in its role in society and inimitable in its shape by other voluntary associations of free adults, such as gay unions. It’s hard to think such backward, retrograde thoughts, I know, but give it a sporting try. Now, consider how pervasive sex is in society and in our human experience. Discover, if you can, some corner of our lived experience that sexual desire does not have some bearing on, either as a present reality or as a dark, forbidden possibility. Consider the effects one’s family has on one’s own outlook on the world, and the liberties we afford to families for the formation of the respective characters of the individuals who compose them.
Then grant this simple premise: that humans are fundamentally and inescapably truth-telling beings, and that falsehoods require an elaborate and complex support structure if they are to take hold and endure for a long period of time. A child might believe that Santa Claus is real and get on with the world just fine. But as they grow older, the kinds of backflips, self-deceptions, and tricks they would have to go through in order to maintain such a belief would be dazzling.
Now, momentarily return to that peculiar and strange thought that same-sex sexual relationships, whatever other goods have, lack particular features which make heterosexual relationships morally unique. Given human sexuality’s clear importance, and given humanity’s truth-telling nature, what kind of artifice would need to be in place to support and sustain such a deception within a society over a long period of time? What kind of intervention into the course of normal human affairs would a society have to undertake in order to obscure the morally relevant differences between those forms of sexual behavior that can generate children and those that cannot? What kind of construct would we have to build in order to maintain the premise that all consenting erotic associations are equal, that the union of the lives of two adults (even where children are introduced via the tragedy beneath adoption or through the artifice of technology) is of the same kind as those families where a man and a woman’s love and life together introduces a third member into the community who bears witness, within their very bodies, of the love of that mother and father for each other and for no one else in a way that removing children from their biological parentage necessarily diminishes? And once this structure is built, would it have the structural integrity to allow for meaningful and public dissent? Or would it be so fragile, because false, that it had to “stamp out” competing accounts of the world?
Erasing or obscuring the moral uniqueness of the traditional nuclear family unit—if there is one— would require, dare I say, both an extensive and elaborate artifice that attempted to reconfigure not simply the family, but all those institutions which the family has some bearing upon. Maintaining such a support would require the most powerful and influential institutions in American life, of which there are currently (by way of hypothesis) three: entertainment, business, and the government. And as long as those dominant institutions established such an outlook on the world, any remaining institutions would come under significant pressure to reform themselves accordingly.
In other words, as Seana Sugrue argued once, same-sex marriage will lead to a soft-despotism because it has to. Conservatives have sometimes said that marriage is a “pre-political institution,” and they are right to say so. The possible introduction of a child into a marriage by way of procreation introduces asymmetrical ties and obligations that are deeper than the wills of the two individuals. But inasmuch as same-sex marriage attempts to imitate such ties (and use technology or adoption to replicate the family), it is a political institution in the most broad sense. And so the promotion of same sex marriage will inevitably engender the remaking of the whole of society, which families are a microcosm of. To think that it would ever otherwise be is to misunderstand the family’s unique role in human life in the first place, and to adopt the very premise that gay marriage needs in order to be plausible. The libertarian claim that gay marriage and religious liberty can coexist is a fantasy, which libertarians can hold on to because they start from a standpoint that misconstrues the very nature of the family.
Now, it is doubtlessly the case that conservatives have sometimes defended and promoted certain illiberal laws, like sodomy laws, which gay marriage supporters have effectively turned against us in support of their own cause. I am opposed to such laws, for a variety of reasons, but one of which is that by creating an overly legalized context for the preservation of sexual norms, they tacitly transfer authority for such maintenance to the government. This potentially creates a false confidence in the stability of such norms, and threatens to displace the first and primary defender of sexual norms, namely the Church, as well as the family itself and all the non-governmental spheres of civil society. While such laws once enjoyed wide support, they were also overly morally restrictive and intrusive. Such overreaches have proved enormously costly to our own position in the world since the gay community has effectively and powerfully used them to portray themselves (with some legitimacy) as a persecuted minority.
But as my friend Erick Erickson has said repeatedly, “You will be made to care.” Because in the same-sex marriage regime, dissenters threaten to overturn the apple cart. The eagerness by which dissenting views are being pushed out of public and any debate is being silenced may be some of the strongest evidence we have for the view’s intrinsic falsity.
Except. Except. I have sometimes said that the central question facing our society is whether there can be mercy in the gay marriage debate. I am not the only person to ask it, nor was I the first to think of it. But it captured me the moment I first heard it, and it haunts me still. It is mercy that is at stake in our current moment. For mercy is a response to a wrong done, and I have no doubt that conservatives have in the past occasionally fallen prey to hubris in their zeal to maintain norms that they think are true. There are few more liberal qualities than mercy, for mercy is a kind of permissiveness where judgment is owed. And mercy refuses to treat the status quo as determinative: it recognizes the freedom of humanity to rise above our current state of wronging each other, a freedom which is itself constituted by the giving of mercy in the first place. Such a mercy is what Andrew Sullivan defended in the excommunication of Brendan Eich from the Church of Silicon Valley.
The surest and easiest way the LGBT community could prove me wrong would be to begin extending mercy toward those of us who are hopelessly and cheerfully lost on the wrong side of history, and to somehow convince themselves that the usefulness of the fiction for their cause that religious conservatives are intrinsically bigoted in their views has come to an end. Whether they will remains to be seen. But regardless of how implausible such a reversal seems or how the structural forces of our society are opposed to it, as long as the possibility of conversion remains I will continue to stay foolish in my hope.